Nevada Reports 1949 (66 Nev.) PDF

66 Nev.
1, 1 (1949)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 66
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66 Nev. 1, 1 (1949) Craig v. Harrah
EDWARD E. CRAIG, Appellant, v. WILLIAM
HARRAH, Respondent.
No. 3541
January 17, 1949. 201 P. 2d 1081.
1. Appeal and ErrorExceptions, Bill of.
Where appellant's application to supreme court for extension of time within which to file bill of
exceptions, was made long after time within which to file bill of exceptions had expired, and appellant
had made no application for such extension to trial court nor requested a stipulation from opposing
counsel for any extension, until after time had expired, motion for extension of time would be denied, and
respondent's motion to strike bill of exceptions would be granted.
2. Appeal and Error.
Where appellant's bill of exceptions was stricken because not timely filed, case was before supreme
court on appeal on judgment roll alone, and it was only to documents and papers constituting the
judgment roll that supreme court was entitled to look in determining correctness of rulings, decision and
judgment.
Where supreme court on appeal was confined to the judgment roll, because bill of exceptions
containing all evidence was stricken, supreme court was bound to presume conclusively that trial court's
findings were correct.
4. Gaming.
In action for money had and received, evidence sustaining allegation of defendant's answer that
plaintiff was the owner and proprietor of a gambling club and that at time plaintiff
advanced some money to defendant, plaintiff in his club managed, operated, and
controlled certain gambling devices, was not sufficient to establish defendant's
defense that advancement was made for gambling purposes in plaintiff's club.
and proprietor of a gambling club and that at time plaintiff advanced some money to defendant, plaintiff
in his club managed, operated, and controlled certain gambling devices, was not sufficient to establish
defendant's defense that advancement was made for gambling purposes in plaintiff's club.
5. Money Received.
In action for money had and received, findings that on or about a certain date defendant became
indebted to plaintiff in sum of $500 for money had and received by defendant by reason of an
advancement made of such sum of money by plaintiff, and that on or about certain date, and before
commencement of action, plaintiff demanded payment thereof from defendant, but that no part of the
$500 was repaid by defendant, were sufficient to support judgment for plaintiff.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Action for money had and received by William Harrah against Edward E. Craig. From an
adverse judgment, the defendant appeals. Judgment affirmed.
Edward E. Craig, of Berkeley, Cal., in pro per.
Harlan L. Heward, of Reno, for Respondent.
OPINION
By the Court, Horsey, C. J.:
This case is before us upon appeal from the judgment rendered and entered by the Second
judicial district court of the State of Nevada, in and for the county of Washoe, department No.
1, on the 16th day of January 1948, in favor of the plaintiff, who is the respondent in the
matter of this appeal. There was no motion for a new trial.
1. This court has heretofore disposed of two motions in the case, by our opinion and orders
filed June 25, 1948, whereby we denied appellant's motion for an extension of time within
which to file bill of exceptions, and granted respondent's motion to strike appellant's bill of
exceptions, certain minutes of the court, and the district court's opinion and decision.
granted respondent's motion to strike appellant's bill of exceptions, certain minutes of the
court, and the district court's opinion and decision. The motion of appellant for an extension
of such time was denied, for the reason that appellant's application was made to this court
long after the time within which to file bill of exceptions had expired, and he had made no
application for such extension to the lower court or the judge thereof, nor had he requested a
stipulation from opposing counsel for any extension of such time, until after the time had
expired.
The motion of respondent to strike the bill of exceptions was granted, for the reason that
this court has repeatedly held that the time requirement of our statute in that regard is
mandatory and jurisdictional. The minutes of the district court, and that court's opinion and
decision, were, necessarily, ordered stricken for the reason that they constituted no part of the
judgment roll and could only be brought properly before this court if embodied in a bill of
exceptions filed within the time allowed by law. Numerous authorities are cited in our said
opinion, in support of our position stated therein, and the orders simultaneously made. Said
opinion and orders are reported in 65 Nev. 295, 195 P.2d 688, to which reference is now
made.
2. Appellant's bill of exceptions having been stricken, the case is now before us upon
appeal upon the judgment roll alone, and it is only to the documents and papers constituting
the judgment roll that we are entitled to look for the correctness of the lower court's rulings,
decision and judgment. The judgment roll before us consists of the pleadings (the complaint,
answer and reply), the district court's findings, and that court's judgment.
We shall refer to the parties as plaintiff and defendant, respectively, as they were
designated in the lower court.
The plaintiff, in his complaint, alleged that defendant became indebted to plaintiff in the
sum of $500, for money had and received by defendant by reason of an advancement
made of said sum of money, on or about May 25, 1947, to the defendant by the plaintiff.
money had and received by defendant by reason of an advancement made of said sum of
money, on or about May 25, 1947, to the defendant by the plaintiff. The plaintiff also alleged
that he demanded payment thereof from the defendant, on May 31, 1947, and that no part of
said sum of $500 had been repaid.
The defendant, in his answer, alleged, in substance, that no sufficient demand had been
made on him by plaintiff for the repayment of said sum of $500, admitted that he, said
defendant, had not repaid said sum or any part thereof, and further alleged that there was no
obligation on the part of the defendant to repay said sum of $500.00. In paragraph I of his
answer, the defendant set forth his principal defense, which defense is, in effect, that the $500
sued for by plaintiff was advanced to defendant by plaintiff for the purpose of engaging in
gambling in plaintiff's gambling establishment or casino in the city of Reno, Nevada, an
illegal purpose; that such purpose was well known to the plaintiff at the time said
advancement was made, and that any debt or obligation arising from such advancement or
upon the basis thereof was a gambling debt or obligation, unenforceable under the laws of the
State of Nevada. The allegations in said paragraph I of defendant's answer as to such illegal
purpose, and of facts tending to disclose same, are as follows:
and further alleges that said $500.00 was advanced by the plaintiff to the defendant for
the purpose of engaging in gambling, and that at the time of said advancement of said
$500.00 the plaintiff well knew that the said advancement of the said sum of $500.00 was for
the purpose of engaging in gambling.
That the plaintiff is the owner, proprietor and operator of a gambling casino in the City of
Reno, County of Washoe, State of Nevada. That the principal business and the sole business
of the plaintiff in the operation of said casino, is to run gambling devices and games and to
sell liquor, and that at the time said advancement was made the plaintiff then and there in
said casino managed, operated and controlled certain gambling devices and games known
and designated as 'craps', or dice game, roulette, black jack and mechanical slot machines
and that each, every bit and all of the said $500.00 advances by the plaintiff to the
defendant as aforesaid were advances for the sole purpose of enabling the defendant to
use said money for the purpose of gambling in the plaintiff's [gambling games located as
aforesaid in plaintiff's] casino in the following games to wit: black jack, roulette, craps, as
aforesaid, and slot machines, as aforesaid, and that the defendant took no part of said
money away from said gambling establishment and gambled each, every bit and all of the
same in said gambling establishment, as aforesaid, with the knowledge and participation
of the defendant in each and every bit of said gambling and that the plaintiff won from
the defendant by his gambling devices as aforesaid each, every bit and all of the aforesaid
advancement of said $500.00."
was made the plaintiff then and there in said casino managed, operated and controlled certain
gambling devices and games known and designated as craps', or dice game, roulette, black
jack and mechanical slot machines and that each, every bit and all of the said $500.00
advances by the plaintiff to the defendant as aforesaid were advances for the sole purpose of
enabling the defendant to use said money for the purpose of gambling in the plaintiff's
[gambling games located as aforesaid in plaintiff's] casino in the following games to wit:
black jack, roulette, craps, as aforesaid, and slot machines, as aforesaid, and that the
defendant took no part of said money away from said gambling establishment and gambled
each, every bit and all of the same in said gambling establishment, as aforesaid, with the
knowledge and participation of the defendant in each and every bit of said gambling and that
the plaintiff won from the defendant by his gambling devices as aforesaid each, every bit and
all of the aforesaid advancement of said $500.00.
Plaintiff, in paragraph I of his reply to said answer, denied all of said paragraph I thereof,
and each and every allegation therein contained, including the portion of said paragraph I
above quoted, save and except that the plaintiff admits that he is the owner and proprietor of
Harrah's Club, located in Reno, Nevada and that at the time the plaintiff gave to the defendant
the said $500, he in Harrah's Club managed, operated and controlled certain gambling devices
known and designated as craps', or dice game, roulette, black jack and mechanical slot
machines.
It may be noted at this point that the defendant, neither in said paragraph I nor elsewhere in
his answer, has alleged expressly or specifically where the advancement to him by plaintiff of
the $500 was made, nor whether same was advanced personally by the plaintiff, or by some
agent, cashier or employee of plaintiff, nor whether at the time of the advancement the
defendant was then and there engaged in playing a game or betting at any gambling game or
device, or had, shortly prior thereto, been so engaged.
at any gambling game or device, or had, shortly prior thereto, been so engaged.
In determining the purpose for which the $500 was advanced, the significance and
relevancy of the surrounding circumstances and environment are readily apparent. If the
advancement was made in a gambling establishment in full operation, by the proprietor or his
agent, to one then, or immediately prior thereto, engaged in gambling and who ran short of
money, the game still being in progress, or if his conversation or the circumstances indicated
he intended to resume playing, the purpose of the advancement becomes clear. On the other
hand, if the advancement was at a different place than a gambling establishment, or if same
was not made at a time when the recipient had been recently playing, and some other,
legitimate, purpose is stated by the recipient, then no presumption or inference that the
advancement was for a gambling purpose is justifiable from such circumstances.
3. Confined, as we are upon this appeal, to the judgment roll, the bill of exceptions
containing all the evidence having been stricken, and bound, as we are, to presume
conclusively that the findings of the trial court are correct, and, in the instant case, the trial
court having found to be untrue all of the allegations of paragraphs I, II, and III of defendant's
answer, save and except the clause above quoted from said paragraph I of the reply and which
is substantially the same as a like clause in paragraph I of said answer, it is important that we
carefully consider and interpret correctly such admitted clause.
4. The fact that the plaintiff was the owner and proprietor of Harrah's Club located in
Reno, Nevada and that at the time the plaintiff gave to the defendant the said $500, he in
Harrah's Club managed, operated and controlled certain gambling devices is not, necessarily
a statement that the advancement was made to the defendant in Harrah's Club. As is
commonly known to be the custom and practice, the proprietor of such a club may also be,
at the same time, the manager, operator and controller of such establishment, but, in
order to perform his duties efficiently, he may, and usually does, employ assistants,
agents or employees.
to be the custom and practice, the proprietor of such a club may also be, at the same time, the
manager, operator and controller of such establishment, but, in order to perform his duties
efficiently, he may, and usually does, employ assistants, agents or employees. In fact, if the
establishment and business is of considerable size and volume, he employs many such
assistants. It cannot be reasonably contended that, because the rather peculiar phraseology,
he in Harrah's Club managed, etc. (italics added) was used, that such expression necessarily
meant that the plaintiff was physically present in such club at all times when he was so
engaged in its management, operation, and control. In clubs of such kind, many of which
operate continuously, this would be a physical impossibility. The plaintiff, at the time the
advancement of the $500 was made to the defendant, would, in legal contemplation and
effect, if the language be given a reasonable construction, be deemed to be in such club and
engaged in its management, operation, and control to the same extent, if it happened that he
was physically absent, for instance, at some hotel or cafe, dining, or engaged elsewhere, and
at such time functioning through his authorized assistants, agents, and employees, as he
would be if physically present in such club at such particular time. It follows, therefore, that if
he personally and physically made the advancement to defendant, he may have done so at
some hotel or cafe, or on the street, or at some other place away from his gambling casino.
The defendant insists, in his reply brief, that there was no personal relationship between
plaintiff and himself which would cause plaintiff to make such advancement for other than
business reasons. This may be true, but we cannot, in view of the findings of the trial court,
and in the absence of all evidence from the record, read into the defendant's answer and,
particularly, into the admitted clause thereof, allegations of facts which are not therein
alleged. Even assuming, however, that by such admitted clause defendant intended to
allege, and plaintiff, in his reply, to admit, that at the precise time the $500 was advanced
to defendant the plaintiff was physically present in the club, then and there personally
engaged in its management, operation, and control, and that he then and there personally
and physically advanced to defendant, also personally present therein at said time, the
$500, such assumed facts would not, necessarily, lead to the conclusion that the
advancement was for a gambling purpose.
such admitted clause defendant intended to allege, and plaintiff, in his reply, to admit, that at
the precise time the $500 was advanced to defendant the plaintiff was physically present in
the club, then and there personally engaged in its management, operation, and control, and
that he then and there personally and physically advanced to defendant, also personally
present therein at said time, the $500, such assumed facts would not, necessarily, lead to the
conclusion that the advancement was for a gambling purpose. Indeed, the parties, for aught
that appears from the admitted allegations, may have been personal friends and
acquaintancesthe defendant may have been desirous of making a trip, or using the money
for some other purpose than gambling, and may have gone into the gambling casino, at the
time alleged, and requested that the plaintiff cash a check for him for $500. The plaintiff may
also have done so, and the defendant may have departed immediately thereafter, without any
thought or intent on the part of either of them that the money was to be used for a gambling
purpose, and insofar as such admitted facts are concerned, and entirely consistent therewith,
the defendant may not have used any of such money for a gambling purpose, but entirely for
other purposes.
As has been hereinbefore stated, the honorable trial judge found all the facts alleged in
said paragraph I of defendant's answer to be untrue, save and except the facts admitted by the
clause above quoted and considered. The facts thus found to be untrue include the allegation
in said paragraph I of the answer that said $500.00 was advanced by the plaintiff to the
defendant for the purpose of engaging in gambling, and that at the time of said advancement
of said $500.00 the plaintiff well knew that the said advancement of the said sum of $500.00
was for the purpose of engaging in gambling. In the absence of all evidence from the record,
such finding must be conclusively presumed by us to have been established by a
preponderance of the evidence, or, at least, by substantial evidence.
dence, or, at least, by substantial evidence. Such finding of the trial court to the effect that the
allegation of the defendant that said $500.00 was advanced by the plaintiff to the defendant
for the purpose of engaging in gambling was untrue, not only, in effect, negatived the
existence of any express purpose to use the money advanced to engage in gambling, but, also,
must be deemed to negative the existence of any evidence admitted at the trial sufficient to
prove circumstances and environment surrounding the parties at the time of such
advancement, and from which the presence of a gambling purpose would be imputed or
implied, as, for instance, that the advancement was made when the defendant was engaged in
playing or betting in plaintiff's gambling establishment, and that the play was still in progress.
The law as to this phase of the subject is clearly and ably presented and applied in an
opinion of this court, by Mr. Justice Sweeney, in the case of Burke & Co. v. Buck, 31 Nev.
74, 99 P. 1078, 22 L.R.A., N.S., 627, 21 Ann.Cas. 625. In the opinion, after quoting
extensively from the English statute of 9 Anne c. 14, 4 Bac. Abr. p. 456, such statute having
been consistently held by the decisions of this court to have been adopted into the law of
Nevada, Mr. Justice Sweeney stated, as reported on page 81 of 31 Nev. and on page 1081 of
99 P.:
The statute making void a transfer of a negotiable instrument at the time and place of
such play, to any person so gaming, or during such play, and the facts of this case showing
that the certificate of deposit in question was transferred during the progress of the play at
such a time and place, no valid transfer of the certificate was effected, and hence the plaintiffs
acquired no legal title thereto.
In his reply brief, the defendant, Mr. Craig, has very earnestly argued from the standpoint
of the existence of evidence before the trial court establishing circumstances existent at the
time the advancement was made, from which the purpose of gambling would be implied,
and which would, under the statute 9 Anne c.
from which the purpose of gambling would be implied, and which would, under the statute 9
Anne c. 14, render the obligation for repayment of the $500 advanced utterly void, frustrate
and of none effect, to all intents and purposes whatsoever. Being bereft, as we are, of all
evidence in the record, due to the defendant not having filed his bill of exceptions within the
time provided by law, and same having been stricken, we cannot assume the existence of
such circumstances and environment, and imply the existence of a gambling purpose, which
would be directly contrary to the finding of the learned trial judge that the defendant's
allegation of such purpose was untrue. The effect of such holding of the trial court is that the
debt to repay such $500 advanced not having been proven to the satisfaction of the trial court
to have been incurred for the purpose of gambling, the defendant's affirmative defense that it
was incurred for such purpose, the burden of proving such affirmative defense being upon
defendant, necessarily failed for lack of proof.
The honorable trial judge found, further, to be untrue the allegations of paragraph II of
defendant's answer, denying that plaintiff demanded payment of said $500, and alleging, in
effect, that the language used by plaintiff's agent and servant over the telephone, in ostensibly
making demand, was insufficient to constitute a demand; and, also, to be untrue the
affirmative portion of paragraph III of defendant's answer, wherein defendant alleged that
there is no obligation on the part of the defendant to repay said sum of $500.00.
5. Other pertinent findings which the learned trial judge made are contained in paragraphs
I and II of the findings of fact and conclusions of law, and are as follows:
I.
That the Court has jurisdiction over both of the parties to the action, and jurisdiction over
the subject matter of the action; that the defendant was duly served with process in this
action on July 21, 1947, and thereafter filed his answer therein and personally appeared
at the trial and personally participated therein.
with process in this action on July 21, 1947, and thereafter filed his answer therein and
personally appeared at the trial and personally participated therein.
II.
That on or about May 25, 1947, the defendant became indebted to the plaintiff in the sum
of Five Hundred Dollars ($500.00) for money had and received by said defendant by reason
of an advancement made of such sum of money to the defendant by the plaintiff; that on or
about May 31, 1947, and before the commencement of this action, the plaintiff demanded
payment, thereof from the defendant; that no part of said sum of Five Hundred Dollars
($500.00) has been repaid by the defendant to the plaintiff.
The facts thus found sufficiently support the judgment.
In the absence of all evidence from the record before us, we must presume conclusively
that the findings of fact of the trial court are correct and free from error. This principle and
rule of law is universally upheld and applied. In 3 Am.Jur., upon the subject Appeal and
Error, section 954, pages 516-518, the question now confronting us is clearly and ably
treated. The pertinent portions of section 954 are as follows:
When reviewing the judgment rendered in an equity case or in an action at law tried
before the court without a jury, the appellate court will indulge in every reasonable
presumption in favor of findings made by the lower court upon which it rendered judgment.
As in other cases, the appellant has the burden of showing error therein. * * *
The presumption is that the evidence was sufficient to support or sustain the findings
made and to justify the conclusions reached, especially where the record contains no
statement of the evidence. * * * (Emphasis supplied.)
In support of the statement of law last above quoted, the following cases are cited: Canal
Bank v. Hudson, 111 U.S. 66, 4 S.Ct.
the following cases are cited: Canal Bank v. Hudson, 111 U.S. 66, 4 S.Ct. 303, 28 L.Ed. 354;
Federal Surety Co. v. A. Bentley & Sons Co., 6 Cir., 51 F.2d 24, 78 A.L.R. 1041; Genard v.
Hosmer, 285 Mass. 259, 189 N.E. 46, 91 A.L.R. 543; Sandall v. Sandall, 7 Utah 150, 193 P.
1093, 15 A.L.R. 620.
In Canal Bank v. Hudson, supra, the Supreme Court of the United States, in the opinion by
Mr. Justice Blatchford, stated [111 U.S. 66, 4 S.Ct. 311]:
The circuit court, it is clear, found in this case that the appellees acquired their alleged
title in good faith, under the rule thus established. The evidence is not in the record, and must
be regarded as sufficient to support such finding. (Emphasis added.)
In Parks et al. v. Garrison, 57 Nev. 480, 67 P.2d 314, Mr. Chief Justice Coleman, in his
opinion, applied such principle. On page 482 of 57 Nev., and page 314 of 67 P.2d it is stated:
An order having been made, on stipulation of the parties, striking the bill of exceptions,
there is nothing the court can consider except the judgment roll. (Emphasis added.)
And on page 484 of 57 Nev., page 315 of 67 P.2d Mr. Chief Justice Coleman stated,
further:
The evidence not being before us, we must conclusively presume that it shows that all of
the parties were at that time endeavoring to terminate the contract in toto, and considered that
they had done so, and in fact succeeded in so terminating it. (Emphasis added.)
The effect of the trial court's finding, in the instant case, being that the obligation of
defendant to repay the sum of $500 so advanced to him by plaintiff was a legitimate, binding
obligation, and not a debt incurred for the purpose of gambling, and it being clearly obvious,
in the absence of all evidence from the record, that we must affirm the judgment of the trial
court, the legal question of the unenforceability, under the law of Nevada, of a gambling debt
or obligation is not before us at this time for determination.
us at this time for determination. In this case, in view of the legal situation existing, such
question is merely a moot question. The defendant, in his reply brief, has ably discussed and
presented the law of this and other states relative to gambling obligations, but, for the reason
above stated, the question being moot insofar as this case is concerned, we cannot properly
determine or decide herein such question, which is entirely a question of law, and
inapplicable to any facts found by the trial court in the instant case.
No error appearing in the judgment roll, and same being the sole record before us, which
we have the right to consider, the judgment of the district court is hereby affirmed.
Badt and Eather, JJ., concur.
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66 Nev. 13, 13 (1949) State v. Pinson
THE STATE OF NEVADA, on Relation of its DEPARTMENT OF HIGHWAYS,
Respondent, v. VICTOR A. PINSON, Et Al., Appellants.
No. 3546
January 24, 1949. 201 P.2d 1080.
The supreme court favors an exercise of its discretion which will permit the consideration of an
appeal on its merits.
Respondent's motion to strike reporter's transcript on ground of late filing would be denied by
supreme court in exercise of its discretion where motion was a second motion and there was no showing
of any reason why matters involved were not included in the first motion, especially where trial court had
granted the suit by the department of highways for condemnation and had fixed compensation.
A motion to strike additional papers on ground that they did not comprise a part of judgment roll and
were not included in bill of exceptions settled or allowed by order or stipulation would be denied where
papers were not attacked by respondent's first motion to strike the reporter's transcript nor was any reason
assigned for such failure.
Appeal from Sixth Judicial District Court, Humboldt County; Clark J. Guild, Presiding
Judge.
Proceeding by the state, on relation of its department of highways, against Victor A.
Pinson and others. From the judgment defendant appeals. On respondent's motion to strike
the reporter's transcript, and to strike additional portions of the record. Motions denied.
Carville & Carville, of Reno, for Appellants.
Alan Bible, Attorney General and Geo. P. Annand and Homer Mooney, Deputy Attorneys
General, for Respondent.
OPINION
By the Court, Badt, J.:
Respondent has moved to strike the reporter's transcript on the ground of late filing. A
former motion on different grounds was heretofore denied by this court. State ex rel.
Department of Highways v. Pinson, 65 Nev. 510, 199 P.2d 631. Reference is made to the
opinion in that case. Appellants object to our consideration of this second motion because of
the absence of showing of any reason why the matters were not included in the first motion.
They contend that respondent is splitting motions where complete relief could have been
granted upon one motion; that its grounds not urged in the first motion should be deemed
waived; that the general rule is that a second motion should not be allowed permitting
additional objections, by installments, without excuse for not presenting them in the former
motion, and cite, among other authorities: 37 Am.Jur. 504, Motions, Rules, and Orders, sec.
6, 42 C.J. 521, Motions and Orders, sec. 183; Hart v. Walker, 77 Ind. 331; King v. Pony
Gold-Min. Co., 24 Mont. 470, 62 P. 783; Dellwo v. Petersen, 34 Idaho 697, 203 P.
Dellwo v. Petersen, 34 Idaho 697, 203 P. 472; 4 C.J.S., Appeal and Error, sec. 1379, page
2002. Appellants also point out that striking out the transcript would be tantamount to
dismissing the appeal. The authorities cited would seem to support appellants' contention,
though, as respondent points out, most of them deal with motions in the trial court.
Respondent cites the case of City of Fallon v. Churchill County Bank Mortgage
Corporation, 57 Nev. 1, 49 P.2d 358, 50 P.2d 944, 54 P.2d 273, 56 P.2d 1211, 59 P.2d 18, in
which there were four successive motions before the court. There was a distinct sequence of
events in that case, however, whereunder the disposition of each motion led to the succeeding
motionin fact, in disposing of one of the motions the court invited the making of the next
motion. The special circumstances of that case deprived it of any value as precedent justifying
the renewal of respondent's motion in the instant case.
Respondent also calls our attention to Taylor v. Taylor, 56 Nev. 100, 45 P.2d 603, Id., 58
Nev. 149, 72 P.2d 1105, Id., 59 Nev. 67, 84 P.2d 709, in which there were three successive
motions before the courteach being a motion to strike parts of the record and to dismiss the
appeal. But upon denying respondent's first motion this court granted the appellant's motion
to remand the record to the district court for correction without prejudice to respondent's right
to renew his motion after the return of the record to this court. The same thing happened on
the occasion of respondent's second motion to strike and to dismiss and appellants' counter
motion to remand the record for correction, so that the respondent's second and third motions
were made in accordance with a special order of this court preserving such right in
respondent. It is interesting to note that in Taylor v. Taylor, as reported in 58 Nev. at page
151, 72 P.2d at page 1106, this court said:
Counsel for respondent, in the last-mentioned motion, sets forth grounds not contained in
their first motion, notwithstanding the order of the court, in giving permission to again
move, limited the grounds of such new motion.
notwithstanding the order of the court, in giving permission to again move, limited the
grounds of such new motion. Notwithstanding this fact, it is sought to have the bill of
exceptions stricken and the appeal dismissed for a defect which existed when the first motion
was made.
We do not deem it necessary to dispose of the contention of appellant that respondent
waived the grounds of the motion not contained in the first motion, though we are inclined to
the view that the contention as to waiver is good.
1, 2. Respondent, in answering appellants' objections, contents itself in the main with
insisting that the matter lies in the sound discretion of the court. We are inclined to exercise
that discretion by an order which will permit consideration of the appeal on its merits. See
opinion on former motion, supra. We are the more persuaded to this view because the action
is one by the state on relation of its department of highways in which the trial court granted
the plaintiff's suit for condemnation and fixed the compensation. Respondent conceded at the
oral argument of the second motion that there was some force to appellants' objections, but
urged that we should reconsider our action in denying respondent's first motion to strike for
the reason that we had overlooked certain features of the requirements of our statute
governing bills of exceptions and reporters' transcripts in lieu of bills of exceptions. We are
satisfied, however, that the opinion on respondent's first motion to strike correctly disposed of
all points there raised.
3. Included in the motion now before us is also a motion to strike sundry additional papers
on the ground that they do not comprise a part of the judgment roll as defined by statute and
are not included in any bill of exceptions settled or allowed by order or stipulation. These
papers were not attacked by the first motion nor is any reason assigned for such failure.
Appellants' objections to our consideration of the present motions are well taken.
objections to our consideration of the present motions are well taken.
The motion to strike the transcript upon the new grounds assigned is denied. The motion
to strike the additional portions of the record is likewise denied. Each party will pay its own
costs incurred in the present motion.
Horsey, C. J., and Eather, J., concur.
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66 Nev. 17, 17 (1949) Application of Filippini
In the Matter of the Application of DAN FILIPPINI to the STATE ENGINEER
of the State of Nevada, for Permission to Appropriate the Waters of
Duff Creek, No. 11450.
No. 3533
January 28, 1949. 202 P.2d 535.
1. Waters and Water Courses.
The term water right means generally the right to divert water by artificial means for beneficial use
from a natural spring or stream.
The owner of a water right does not acquire a property in the water as such, at least while it is
flowing naturally, but a right to use water beneficially, which will be regarded and protected as realty.
3. Constitutional Law.
The term vested right, as that term is used in relation to constitutional guaranties, implies an interest
that it is proper for the state to recognize and protect, and of which the individual owner should not be
deprived arbitrarily without injustice, and it is some interest in the property that has become fixed and
established.
4. Constitutional LawWaters and Water Courses.
When the term vested right is used in connection with a water right, it means that right to use water
has become fixed either by actual diversion and application to beneficial use or by appropriation
according to the manner provided by water law, and is a right which is regarded and protected as
property.
5. Waters And Water Courses.
Appropriation prior to enactment of the water law was an actual diversion of the water with intent
to apply it to a beneficial use, followed by an application to such use within a
reasonable time.
beneficial use, followed by an application to such use within a reasonable time. N.C.L.1929, secs. 7890,
7891.
Appropriation of water rights is an original acquisition from the government by diversion and use,
and hence there can be no appropriation by prescription because, in order to have an adverse use, a
superior right must be infringed.
In order to establish a right by prescription to the use of water claimed by another, the use and
enjoyment must have been uninterrupted, adverse, and under claim of right, and with the knowledge of
the owner, and adverse possession of the use of water is governed by the same rules as adverse
possession of land, and the period of such use must be for five years. N.C.L.1929, sec. 8517.
8. Statutes.
In construing a statute, the words should be given their plain meaning, unless to do so violates the
spirit of the statute.
9. Statutes.
Technical words and phrases having a peculiar meaning in the law, when used in a statute, are to be
understood according to their technical import.
10. Statutes.
Where the legislature in a statute uses words which have received judicial interpretation, the words
are presumed to be used in that sense unless the contrary intent can be gathered from the statute.
A water right could be acquired by adverse use for a period of five years, against an owner of a water
right which vested by diversion and beneficial use prior to 1903 and the enactment of any statutory water
law, though period of adverse use was initiated in 1933 following enactment of statutory water law.
N.C.L.1929, secs. 7890, 7891, 8517.
The statute has the constitutional power to control and regulate the waters of the state, and to provide
how and in what manner the use of such water can be obtained. N.C.L. 1929, secs. 7890, 7891.
The water law and all proceedings thereunder are special in character, and the provisions of such law
not only lay down the method of procedure, but strictly limit it to that provided. N.C.L.1929, secs. 7890,
7891.
The user of water properly presents his claim with state engineer as an owner by adverse use by filing
a protest to an application to appropriate the waters. N.C.L.1929, secs. 7947, 8517.
Though the legislature cannot constitutionally enact laws impairing water rights already in existence,
it can properly undertake to provide means for ascertaining what those water rights are and to set up other
methods of control. N.C.L., secs. 7890, 7891.
The state engineer should not be precluded from determining water rights which exist by virtue of a
right which came into existence prior to enactment of the water law. N.C.L.1929, sec. 7947.
17. Pleading.
Whatever is alleged in a pleading must be alleged with sufficient certainty to apprise the opposite
party of what he is required to meet on the trial, and the court of issue presented.
In action against state engineer and applicant for permission to appropriate waters of creek, to review
granting of application and denial of plaintiff's protest, on ground that plaintiff had acquired water rights
by adverse use, complaint which failed to set out amount of water adversely used by plaintiff or on what
land it was used, or whether applicant owned right to use all waters or only a portion thereof, which
described right of applicant as a vested right acquired by purchase, and which failed to state to what
extent granting of application would injure plaintiff, was demurrable for uncertainty. N.C.L.1929, secs.
7947, 7961.
Eather, J., dissenting.
Appeal from the Third Judicial District Court, Eureka County; W. R. Reynolds, Judge.
Proceeding in the matter of the application of Dan Filippini to the State Engineer of the
State of Nevada, for permission to appropriate the waters of Duff Creek, No. 11450, wherein
Dewey Dann filed a protest. The application was granted without any notice being given to
Dewey Dann, and he filed an action against the state engineer and Dan Filippini. From a
judgment dismissing the action, Dewey Dann appeals. Cause remanded with directions.
Orville R. Wilson, of Elko, for Appellant.
Alan Bible, Attorney General, W. T. Mathews, Special Assistant Attorney General, and
George P.
Assistant Attorney General, and George P. Annand and Homer Mooney, Deputy Attorneys
General, for Respondent State Engineer.
McNamara & Robbins, of Elko, for Respondent Dan Filippini.
OPINION
By the Court, Wines, District Judge:
This matter comes to this court on an appeal after the following had occurred:
The respondent, Dan Filippini, made application, in the form prescribed by statute, to the
office of the state engineer to appropriate a portion of the waters of Duff Creek, situate in
Eureka County, Nevada. The appellant, Dewey Dann, filed a protest. The state engineer
proceeded to make a field examination, and thereafter issued a ruling granting the
application. This was done without any notice being given to Dewey Dann, and although the
state engineer permitted the filing of the protest, no effort was made to comply with the
statute, section 7947, N.C.L.1929, regarding protests. Whereupon the appellant, pursuant to
section 7961, N.C.L.1929, filed his complaint in the Third judicial district court of the State
of Nevada, in and for the county of Eureka. The defendants named in the action were the state
engineer and Dan Filippini. They appeared in the action and demurred to the complaint on
general and specific grounds. The matter was submitted on briefs, and the district court made
and entered its order sustaining the demurrer on all grounds taken, and allowing the appellant
time to amend. This he declined to do within the time allowed, or thereafter, and the district
court made and entered a judgment dismissing the action.
action. From this judgment the appellant takes this appeal.
It will not be necessary to copy the pleadings into this opinion, as an examination of the
record and the arguments of counsel has enabled us to arrive at the following as a proper
statement of the initial issue before us:
The paramount issue in this case iscan a water right be acquired by prescription, i. e., by
adverse use for a period of five years, against an owner of a water right which vested by
diversion and beneficial use prior to 1903 and the enactment of any statutory water law, when
the period of adverse use was initiated in the year 1933, and, following the enactment of the
statutory water law of this state, which body of law had its inception in the year 1903 and was
consummated, except as to minor matters, in that act known as the Water Law of 1913.
N.C.L.1929 sec. 7890 et seq. The procedural complement of this issue is concerned with the
right of such an adverse user of a vested right to assert his claim by means of a protest to an
application to divert and use such waters, made pursuant to the water law, and upon an
adverse ruling to make application to the proper court in the manner provided by the water
law of 1913.
Often the import of an issue stated in this manner is not apparent unless the terms used in
stating it are prescribed. For this reason, and because it will assist, in this instance, in
reaching a conclusion upon the issue, some of the terms here used will be defined.
1, 2. The term water right means generally the right to divert water by artificial means
for beneficial use from a natural spring or stream. Boyce et ux. v. Killip et ux., Or., 198 P.2d
613. When we speak of the owner of a water right we use the term in its accepted sense;
that is to say, that the owner of a water right does not acquire a property in the water as such,
at least while flowing naturally, but a right gained to use water beneficially which will be
regarded and protected as real property.
property. Nenzel et al. v. Rochester Silver Corp., 50 Nev. 352, 259 P. 632.
3, 4. The term vested rights, as that term is used in relation to constitutional guarantees,
implies an interest it is proper for the state to recognize and protect and of which the
individual could not be deprived arbitrarily without injustice. City of Los Angeles v. Oliver,
102 Cal.App. 299, 283 P. 298. It is some interest in the property that has become fixed and
established. Evans-Snider-Buel Co. et al. v. McFadden et al., 8 Cir., 105 F. 293, 58 L.R.A.
900. See, also, vol. 44, Words and Phrases, Permanent Edition, page 203. When used in
connection with a water right, the sense of the term is immediately apparent. It means simply
that a right to use water has become fixed either by actual diversion and application to
beneficial use or by appropriation, according to the manner provided by the water law, and is
a right which is regarded and protected as property.
The term vested right is sometimes used to describe water rights which came into being
by diversion and beneficial use prior to the enactment of any statutory water law, relative to
appropriation. We use it here, however, as a term describing a water right which has become
fixed and established either by diversion and beneficial use or by permit procured pursuant to
the statutory water law relative to appropriation.
5. One of the ways of acquiring the right to use of water before 1903 was by diversion and
beneficial use. The doctrine of appropriation is the settled law of this state. Reno Smelting
Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L.R.A. 60, 19 Am.St.Rep. 364.
Appropriation, prior to the enactment of the water law, was defined by this court as: An
actual diversion of the [water], with intent to apply it to a beneficial use, followed by an
application to such use within a reasonable time. Walsh et al. v. Wallace et al., 26 Nev. 299,
67 P. 914, 917, 99 Am.St.Rep. 692.
6, 7. We have seen that appropriation is an original acquisition from the government by
diversion and use.
Hence, there can be no appropriation by prescription. State v. Quantic, 37 Mont. 32, 94 P.
491; Jackson v. Indian, etc., Co., 18 Idaho 513, 110 P. 251. In order that there may be an
adverse use, a superior right must be infringed. Egan v. Estrada, 6 Ariz. 248, 56 P. 721; Clark
v. Ashley, 34 Colo. 285, 82 P. 588. No rights can be gained against or from the government
by prescription. Hence an appropriation is a method of acquiring a right to the use of water
from the government and the acquisition of a right by adverse use contemplates a right
already in existence, and acquired as such by adverse use from the owner thereof. The
acquisition of a right to use water by prescription has been defined by this court in the case of
Authors v. Bryant, 22 Nev. 242, 38, P. 439, 440, as follows: In order to establish a right by
prescription to the use of water claimed by another, the use and enjoyment must have been
uninterrupted, adverse, and under claim of right, and with the knowledge of the owner.
Adverse possession of the use of water is governed by the same rules as adverse possession of
land, Vansickle v. Haines, 7 Nev. 249; and the period of such use must be for five years.
Ennor v. Raine, 27 Nev. 178, 74 P. 1; section 8517, N.C.L.1929.
The Water Law of 1913, Public Act c. 140, Statutes of 1913, page 192, and those acts
which preceded it, is a body of law relating to water and its use within the State of Nevada. It
is entitled as an act providing for a system of state control, creating the office of the state
engineer, providing for a system of distribution and use of water, and providing for the
appropriation, use and distribution of water. We shall have something to say as to the
purposes of this body of law in connection with our next subject, the meaning of the word
appropriation under this law.
We have intentionally delayed our definition of this term under the water law, since we are
aware that our definition of the word will go a long way toward supporting or defeating the
respondents' contention. The respondents' contention amounts simply to thisthat the water
law of 1913 provides for the only means of acquiring a right to use water, except by
purchase, since 1913.
the water law of 1913 provides for the only means of acquiring a right to use water, except by
purchase, since 1913. If sustained, this contention would obviate the possibility of obtaining a
water right from the owner by adverse use. The law, being section 2 of the act, and section
7891, N.C.L.1929, states: Subject to existing rights, all such water may be appropriated for a
beneficial use as provided in this act and not otherwise. All such water has reference to
section 1, being section 7890, N.C.L.1929, which provides that the water of all sources of
water supply within the boundaries of the state, whether above or beneath the surface of the
ground belongs to the public. We have above noted that appropriation is a term having a
definite meaning in this state. This court has already held in re Manse Springs, etc., 60 Nev.
280, 108 P. 2d 311, 315, that: The right of use may be obtained in a certain way. The state
having a right to designate the method of appropriation. (Emphasis supplied.) We take this
as importing that the meaning of the word appropriation in the sense that it is an acquisition
of a right to use unappropriated water from the government is in no way changed. The
manner in which one might lawfully proceed to acquire right to use water from the
government has been modified by statute, but the character of the act remains, as ever, an
acquisition of a right to use water from the government.
8-10. In construing the statute we have had in mind that words should be given their plain
meaning unless this violates the spirit of the act. Ex parte Zwissig, 42 Nev. 360, 178 P. 20;
and that technical words and phrases having a peculiar meaning in law are to be understood
according to their technical import. In re Estate of Lewis, 39 Nev. 446, 159 P. 961, 4 A.L.R.
241. Finally where the legislature uses words which have received judicial interpretation, they
are presumed to be used in that sense unless the contrary intent can be gathered from the
statute.
gathered from the statute. Latterner v. Latterner, 51 Nev. 285, 274 P. 194.
Respondents' argument, on the other hand, implies that the literal sense will not be
permitted to prevail over intent. State ex rel. O'Meara v. Ross, 20 Nev. 61, 14 P. 827; and
they insist that this construction violates the purpose and intent of the water law. The intent
and purpose of the water law, it is argued, was to bring order to such matters by requiring
users of water to discover what they can do from an agency of the state (Citing Wyoming
Hereford Ranch v. Hammond Packing Co., 31 Wyo. 31, 222 P. 1027; Id., 33 Wyo. 14, 236 P.
764) before proceeding to do whatever is necessary to acquire a water right. This court has on
several occasions discussed the purpose and intent of the water law. In State ex rel. Hinckley
v. Sixth Jud. Court, 53 Nev. 343, 1 P.2d 105, it was held that the water law must be
interpreted in the light of the intention of the legislature that people who are entitled to water
of a stream system actually get it without needless waste or controversy. The learned Justice
Norcross in Ormsby County v. Kearney, 37 Nev. 314, 142 P. 803, 805, stated: It is manifest,
both from the title and body of the act, that one of the main purposes of this law, and
doubtless the principal purpose, was to place the distribution of the waters of the streams or
stream systems of the state to the persons entitled thereto, under state control. * * * The
public welfare is very greatly interested in the largest economical use of the waters of the
state for agricultural, mining, power and other purposes. We do not consider this contrary to
our construction of the statute. On the other hand, we find nothing in the law or in those
opinions interpreting it that would support respondents' contention. Agreement with
respondents would require reading into the law provisions which are not there. The rule
which respondents seek to avail themselves of has no application unless the legislature has in
some manner spoken on a subject.
has in some manner spoken on a subject. By limiting the sense of the word appropriation to
the usual and accepted meaning, we do not ignore any expressed purpose and counsel has not,
nor do we find in the law anything which would support the construction insisted upon.
This is also in accord with a distinction made above; namely, that an appropriation is a
method of acquiring a right to the use of waters from the government. The acquisition of a
right by adverse use contemplates a right already in existence and acquired by such use from
the owner thereof. In the case of In re Manse Springs, etc., supra, we find a brief discussion of
this point. This court there said on this point: The 1913 Water Law left those who had
acquired water rights prior to its enactment in the enjoyment of said rights, but did undertake
to provide means of ascertaining what those rights were, and also set up other methods of
control. The court also pointed out that the law expressly excluded from the operation of
the provisions of the statute any vested rights which would be impaired thereby.
In the case of Carpenter v. Sixth Judicial District Court, 59 Nev. 42, 73 P. 2d 1310, 84 P.
2d 489, we find further support for our view. This court there approved the statement that the
water law is intended to provide a method whereby unappropriated water might be
appropriated, as providing a means for determining without delay the relative rights of
appropriators of waters of public streams, and to enable the state to supervise and administer
the distribution of waters.
11. It is settled that a right to use water might be acquired by adverse use prior to the
enactment of the water law. Authors v. Bryant, supra. And we note here, that in a sister state
where conditions relating to water, the use thereof and distribution, and where the statutory
law is very similar to that of this state, that the supreme court of that state held that a right to
use water might be acquired by adverse use for the prescribed period providing all other
elements of adverse use and possession were shown.
use and possession were shown. Hammond v. Johnson, 94 Utah 20, 66 P. 2d 894; Wellsville,
East Field Irr. Co. v. Lindsay Land & L. Co., 104 Utah 448, 137 P.2d 634. We are not
prepared to overrule the case of Authors v. Bryant, supra, at this time, nor do we propose to
read into the law something that we do not find stated there even by implication.
We have not reached the foregoing conclusion without misgiving, and had we been able to
find in the water law legitimate grounds to do so, we would have upheld respondents'
contention. The only other alternative would have been to overrule Authors v. Bryant, supra,
or write into our law a new and expanded interpretation of the term appropriation. This we
are not inclined to do on an issue which to a very considerable extent involves the fixing of a
policy.
There are, however, compelling reasons for determining a policy and for arriving at a
conclusion on this question which would favor the respondents' contention.
12. First of all, there seems to be no question that the state had and has the constitutional
power to control and regulate the public waters of the state, and to provide how and in what
manner the use of such water can be obtained. Ormsby County v. Kearney, 37 Nev. 314, 142
P. 803; Vineyard Land and Stock Co. v. District Court, 42 Nev. 1, 171 P. 166; Bergman v.
Kearney, D.C., 241 F. 884; In re Water Rights in the Humboldt River Stream System, 49
Nev. 357, 246 P. 692.
13. It is also settled in this state that the water law and all proceedings thereunder are
special in character, and the provisions of such law not only lay down the method of
procedure but strictly limits it to that provided.
It is well established that under a water law so similar to ours as to be almost identical, that
a water right by adverse possession cannot be acquired. See Wyoming Hereford Ranch v.
Hammond Packing Company, 31 Wyo. 31, 222 P. 1027; Id., 33 Wyo. 14, 236 P. 764. In that
case the Wyoming court made a most exhaustive examination of the Wyoming constitution
and statutory law relating to the appropriation of and use of water.
examination of the Wyoming constitution and statutory law relating to the appropriation of
and use of water. The Wyoming law is very similar to that of Nevada, and with respect to the
appropriation of water it is substantially identical. The court applied the law, as it found it to
be, to the facts in the caseholding that since the enactment of the Wyoming statute in 1890,
a lawful appropriation of water could not be made without an application to the board of
control for permit to appropriate such water. It is to be noted that section 34 of the Wyoming
law is substantially the same as section 59 of the Nevada law, i. e., section 7944, N.C.L.1929.
The reasons for the amendment to the Wyoming constitution, with respect to water rights,
are found to be the basis of respondents' argument in this case and were that it would prevent
litigation and dispute, and require an orderly procedure by one seeking to acquire a right to
use water.
We submit that the foregoing reasons are most applicable to the Nevada law and the
situation existing in the State of Nevada. Such reasons prompted the enactment of the Nevada
water law and such reasons dictate today that adverse use is wholly unwarranted, unnecessary
and clearly dangerous to the appropriation and distribution of public property. The travail
through which the Nevada water law of this state has passed in the last forty-six years to bring
order out of chaos will be of no avail if the old rule of might makes right in the
appropriation of water is to continue. That the decisions of the Utah court relied upon by the
appellant, i. e., Hammond v. Johnson, supra, and Wellsville East Field Irr. Co. v. Lindsay
Land & L. Co., supra, did not receive legislative sanction is shown by the fact that in 1939 the
Utah legislature amended the Utah water law so as to prevent prescriptive water rights. It is
said at page 656 of 137 P.2d in the opinion in Wellsville East Field Irr. Co. v. Lindsay Land
& L. Co., supra, as follows: The Legislature in 1939 amended the law to expressly provide
that nonuse by the owner of a water right for a period of five years will cause the water to
revert to the State 'whether such unused or abandoned water is permitted to run to waste
or is used by others without right.' By that amendment the Legislature has made it
unmistakably clear that water rights cannot now be acquired by adverse user."
use by the owner of a water right for a period of five years will cause the water to revert to the
State whether such unused or abandoned water is permitted to run to waste or is used by
others without right.' By that amendment the Legislature has made it unmistakably clear that
water rights cannot now be acquired by adverse user. See, also, Smith v. Sanders, Utah, 189
P. 2d 701.
This court during a period of many years has blazed a trail and marked it out with a
consistent line of cases sustaining the statutory water law of this state. It has in every instance
adhered to the policy that order must replace chaos in the appropriation, distribution and use
of public water. The instant case brings to the court one more problem that requires solving in
order that the water law can be made more effective, and become a safeguard to one of the
state's most valuable assetsthe public water. The problem also requires solving in order that
a water right may not be destroyed or extensive and expensive litigation incurred by reason of
adverse use or attempted use. Surely the simple matter of making an application to the state
engineer for a permit to appropriate water or to determine the applicant's right to use the
water is orderly and serves almost immediately to advise the applicant whether there is some
public water to which he may acquire right.
As the 44th session of the Nevada State Legislature has now convened, we direct the
attention of the legislature to the problem. We have found, in compliance with our
constitutional system of assigning separate powers to the executive, legislative and judicial
branches of the government, that the fixing of a policy in this matter lies more properly in the
sphere of the legislature, but we do not over-step in pointing out the problem nor in
submitting for consideration our thoughts upon it.
We find in the water law and the cases construing the law our answer to the remainder of
our question, namely, does a user of water properly present his claim as an owner by adverse
use by filing a protest to an application to appropriate the waters claimed by the
protestant?
owner by adverse use by filing a protest to an application to appropriate the waters claimed by
the protestant?
14-16. As we have stated above, the water law provides not only for a method of
appropriating the unappropriated waters belonging to the state, but in addition the means for
determining the relative rights of users of waters of this state. The case In re Manse Springs,
supra, is the authority for the proposition that while the legislature cannot constitutionally
enact laws impairing rights already in existence, it can properly, and has, in the law referred
to, undertaken to provide means for ascertaining what those water rights are and to set up
other methods of control. We find in section 62, being section 7947 N.C.L.1929, provision
for the procedure followed by the appellant. The state engineer is not precluded from
proceeding under the provisions of the water law, to ascertain and determine water rights
prior to the adoption of the statutory law. Humboldt Land & Cattle Co. v. Allen, D. C., 14
F.2d 650. Nor do we see why he should be precluded from determining rights which exist by
virtue of a right which came into existence prior to the enactment of the water law.
We have disagreed with the learned district judge as to the issue set out above, but we find
ourselves in agreement with him respecting the other ground of demurrer.
17. It is a well-recognized rule of pleading that whatever is alleged in pleading must be
alleged with sufficient certainty to apprise the opposite party of what he is required to meet
on the trial, and the court of the issue presented. Bowers v. Charleston Hill Nat. Mines, 50
Nev. 99, 104, 251 P. 721, 256 P. 1058, 1061.
18. The complaint before us is uncertain in at least three respects: First, it is not set out
clearly and concisely in what amounts the water was adversely used by the appellant nor upon
what land it was used.
Secondly, it does not appear with any certainty whether the respondent, Dan Filippini,
owned a right to use all of the waters of Duff Creek or a portion of these waters.
Thirdly, we find the right of the respondent, Dan Filippini, described as a vested right
acquired by purchase; while the expression vested right is a commonly accepted meaning,
there is not such certainty that it leaves no doubt. We think the appellant could allege so far as
his information and belief permits the manner of acquisition and the dates and other pertinent
facts of the original acquisition.
Finally, we are required to infer to what extent the granting of respondent Dan Filippini's
application will injure the appellant, if at all. To what extent deprivation of these waters
would curtail the operation of the appellant could be described with some exactness.
For the reasons given, it is ordered that the matter be remanded to the Third judicial
district court of the State of Nevada in and for the county of Eureka, and the court is hereby
directed to enter such orders as are necessary to make effective this holding; each party to
bear his costs.
Horsey, C. J., concurs.
Badt, J., having disqualified himself, the Governor designated Hon. Taylor H. Wines,
Judge of the Fourth Judicial District, to sit in his place.
Eather, Justice (dissenting).
Being unable to concur in the conclusion reached by the majority opinion with respect to
the interpretation and construction of the term appropriation, I feel it my duty to express my
views in this dissenting opinion.
The majority courts holds, notwithstanding the express provisions of the water laws of this
state beginning with 1905, that before a person may appropriate water for beneficial use, such
person must first make application to the state engineer for permit to so appropriate, that such
person may acquire a water right by prescription, that is to say, by adverse use thereof for a
period of five years. It is clear from the majority opinion that the majority court bases its
conclusion upon the case of Authors v. Bryant, 22 Nev. 242
case of Authors v. Bryant, 22 Nev. 242, 38 P. 439, which case was decided some twenty years
before the water law of 1905 was enacted.
It is clear from the majority opinion that it is thought that the legislature should establish
the policy of this state with respect to the appropriation of water, and that it is also thought
the legislature has not done so with respect to the paramount issue in this case.
The actual, mechanical and physical work of the appropriation of water is to construct a
ditch from the stream and thus convey water on the land. The legislature has not changed the
physical aspects of the appropriation of water. What the legislature has in effect done in the
water laws of 1905, 1907, and 1913, is simply to provide an additional element with respect
to the appropriation, and that element being to obtain a permit from the state engineer for the
purpose of recording and providing documentary evidence of the appropriation of water. In
brief, to bring order out of chaos. By so doing the legislature has established a policy of this
state, and that policy is that no person may divert water from a stream system by the
appropriation method without first making a documentary record thereof in the office of the
state engineer. It is clear from the majority opinion that the court has viewed most favorably
the theory of the respondents, and has cited with great approval the Wyoming case relied
upon by respondents to sustain the proposition that a water right cannot be acquired by
adverse possession. I concur most heartily with that portion of the majority opinion dealing
with the theory of the respondents, and I concur with the majority court's apparent approval of
such theory, as in my opinion the theory of respondents correctly presents the issue, and states
the law upon the question.
It is a well-established rule of law that when a court has decided an important question and
the legislature thereafter changes the law, even though not at the request of the court, and the
legislative change declares a different policy from that found to be the policy and the law in
the court's decision, then that particular decision of the court is deemed to be overruled
by legislative action.
a different policy from that found to be the policy and the law in the court's decision, then that
particular decision of the court is deemed to be overruled by legislative action. Such is the
condition of the case of Authors v. Bryant, supra. No doubt that case correctly stated the law
as it existed at that time because no legislative act had changed the nature or modified the act
of the appropriation of water. Such change was so made in the water law of 1905 and
continued in the water law of 1907 and that of 1913. It is my considered opinion that such
legislative acts firmly establish the policy of the state to be that applications to the state
engineer for permits to appropriate water must first be made before the actual physical act of
such appropriation could be had, and such application must be made in every instance by any
person desiring to appropriate water.
The judgment of the lower court should be affirmed.
____________
66 Nev. 33, 33 (1949) Ex Parte Sheply
In the Matter of the Application of KENNETH
SHEPLY for a Writ of Habeas Corpus.
No. 3544
February 10, 1949. 202 P.2d 882.
1. Habeas Corpus.
Inquiry under writ of habeas corpus is whether detention of petitioner is presently unlawful and
whether he is entitled to immediate release.
2. Habeas Corpus.
Habeas corpus may not be converted into mere substitute for appeal, writ of error or certiorari.
3. Habeas Corpus.
Where a party is not being illegally deprived of his liberty and is not entitled to immediate release
from custody but seeks to be relieved from a judgment and sentence which he contends has been
unlawfully imposed, though it may require his imprisonment to commence at a future time, the remedy is,
generally, by appeal, and in certain situations, by certiorari.
4. Habeas Corpus.
Where party seeking release from void or voidable judgment has permitted his time for appeal to
expire without taking necessary steps to initiate appeal, he cannot obtain relief from the judgment
by habeas corpus unless he is unlawfully restrained of his liberty thereunder.
from the judgment by habeas corpus unless he is unlawfully restrained of his liberty thereunder.
5. Habeas Corpus.
Prisoner serving under valid judgment and sentence, and held under a valid commitment, cannot
invoke remedy of habeas corpus to relieve him from another judgement, sentence and commitment under
which he has not commenced to serve, for the reason that he is not, by such second commitment,
presently deprived of his liberty.
6. Habeas Corpus.
Where defendant was sentenced to life imprisonment for murder and was thereafter sentenced to
imprisonment for larceny for from two to fourteen years, with the term to commence at expiration of life
sentence, validity of second sentence could not be tested by writ of habeas corpus, since defendant was
not presently confined thereunder, and notwithstanding that under circumstances the second sentence
rendered defendant ineligible to apply for parole under the first sentence. Const. art. I, sec. 6.
Original Proceeding in the matter of the application of Kenneth Sheply for a writ of habeas
corpus. Proceeding dismissed.
Carville & Carville, of Reno, for Petitioner.
Alan Bible, Attorney General and Geo. P. Annand and Homer Mooney, Deputy Attorneys
General for Respondent.
OPINION
On June 17, 1948, Kenneth Shepley, then, and now, serving a sentence of life
imprisonment in the Nevada State Prison, caused to be filed in this court a petition for a writ
of habeas corpus. Such petition was thereupon presented to Chas. Lee Horsey, one of the
justices of this court, who, on said 17th day of June 1948, issued such writ, commanding the
Honorable Richard Sheehy, the warden of said state prison, that he have the body of said
Kenneth Sheply, by him imprisoned and detained, before this court, on the 2Sth day of
September 194S, together with the time and cause of his detention.
said Kenneth Sheply, by him imprisoned and detained, before this court, on the 28th day of
September 1948, together with the time and cause of his detention. The time of hearing was
postponed, upon stipulation of respective counsel, until the 9th day of December 1948, and
on the 6th day of December 1948, Warden Sheehy caused to be filed his return, in writing,
upon the writ and, on said 9th day of December, produced in this court the body of petitioner,
pursuant thereto, together with the original writ, and offered to produce, upon demand, any
and all originals of papers referred to in his return. The matter was briefed and extensively
argued by respective counsel, on said 9th day of December 1948, and thereupon submitted to
this court for its decision.
The petition and attached exhibits disclose that the petitioner, in the Ninth judicial district
court, in and for the county of White Pine, on the 13th day of December 1941, upon his trial
for the crime of murder, had been, by the verdict of the jury duly impaneled in such case,
found guilty of murder in the first degree, and that, on the 17th day of December 1941, he
was, by said court, duly adjudged guilty of the crime of murder in the first degree, and
sentenced, for such crime, to be punished by imprisonment in the state prison of the State of
Nevada for the rest of his natural life. On the same date a commitment was duly issued by
said Ninth judicial district court to the warden of the Nevada State Prison, commanding him
to safely keep and imprison the said Kenneth Shepley in the state prison of the State of
Nevada for the rest of his natural life.
The record further discloses that subsequent to his conviction, by the verdict of the jury on
the said 13th day of December 1941, of the crime of murder of the first degree, and prior to
the judgment and sentence therefor, which was pronounced on the 17th day of December
1941, as aforesaid, the petitioner had been, in said Ninth judicial district court, in and for the
county of White Pine, informed against, by the district attorney of said county, charging him
with the crime of grand larceny, that on the 15th day of December 1941, he had pleaded
guilty thereto, and that on the 17th day of December 1941, he was adjudged guilty of said
crime of grand larceny, "and that he be punished by imprisonment in the State Prison of
the State of Nevada for the term of not less than two years, nor more than fourteen years,
the imprisonment thereunder to commence at the expiration of the sentence of life
imprisonment upon {sic) which has just previously been imposed."
of said county, charging him with the crime of grand larceny, that on the 15th day of
December 1941, he had pleaded guilty thereto, and that on the 17th day of December 1941,
he was adjudged guilty of said crime of grand larceny, and that he be punished by
imprisonment in the State Prison of the State of Nevada for the term of not less than two
years, nor more than fourteen years, the imprisonment thereunder to commence at the
expiration of the sentence of life imprisonment upon (sic) which has just previously been
imposed.
On the same date, December 17, 1941, a commitment was issued by said district court,
commanding the warden or officers in charge of the state prison to receive and safely keep
and imprison the said Kenneth Shepley in the said state prison of the State of Nevada for the
term of not less than two years nor more than fourteen years, said sentence to follow and to
commence at the expiration of the sentence of life imprisonment previously imposed.
In due time, and on or about December 17, 1941, the above-mentioned commitments were
each delivered to, and received by, the said warden, and simultaneously therewith the said
warden, pursuant thereto, received from the sheriff of said White Pine County the custody of
the petitioner, and has ever since held him in custody.
The fourth and fifth paragraphs of the warden's return are as follows:
4. That the undersigned now holds said petitioner pursuant to and on the authority of the
commitment and judgment in said murder case first above mentioned and said judgment is
now final and no appeal therefrom has been taken.
5. That petitioner (sic) now has no authority and does not claim to have any authority to
hold or imprison petitioner on the grand larceny judgment and commitment unless or until the
said sentence for murder has been fully satisfied either by pardon if any or by lapse of time
after commutation of sentence if any or by reason of some judgment of Court requiring his
obedience.
That the undersigned does not intend to hold or imprison the petitioner for the crime of grand
larceny except at the time and period following and commencing at the expiration of the
sentence of life imprisonment previously imposed as aforesaid unless said sentence for grand
larceny shall be set aside or modified by some pardon, commutation or judgment of Court
requiring his obedience. That said judgment of conviction of grand larceny is now final and
no appeal has been taken therefrom.
The grounds upon which petitioner seeks relief by habeas corpus are, in substance, as
follows:
That the petitioner is unlawfully detained and restrained of his liberty upon the said
commitment for the offense of grand larceny; that his commitment and the sentence and
judgment for grand larceny are illegal and void; that the illegality consists in this, that prior to
the judgment and commitment of petitioner for grand larceny, judgment was passed upon
petitioner by said Ninth judicial district court, in and for the county of White Pine, and he
was, by such court, ordered committed to the warden of the Nevada State Prison, for the
crime of murder, for the rest of his natural life, and that his commitment for grand larceny,
and the judgment and sentence upon which same was predicated, imposing a sentence upon
petitioner, for said offense, of not less than two nor more than fourteen years, to follow and
commence at the expiration of the term of life imprisonment previously imposed by the court
for the crime of murder, was excessive and unlawful; that, upon imposing the sentence of
imprisonment for the rest of his natural life, for said crime of murder in the first degree, the
district court lost jurisdiction to impose any additional term of imprisonment, and that such
judgment and sentence and commitment for grand larceny, providing for the detention of the
petitioner, as aforesaid for the term of not less than two nor more than fourteen years,
superimposed upon the judgment, sentence and commitment requiring him to suffer
imprisonment for the crime of murder in the first degree, for "the rest of his natural life,"
was in violation of section 6, article I of the constitution of the State of Nevada, which
prohibits cruel or unusual punishments.
imprisonment for the crime of murder in the first degree, for the rest of his natural life, was
in violation of section 6, article I of the constitution of the State of Nevada, which prohibits
cruel or unusual punishments. Petitioner's attorneys have insisted, in petitioner's brief, that
such punishment is at least unusual, and have cited authorities. From the arguments of the
attorneys for petitioner, upon the hearing and as presented in petitioner's brief, it appears that
the principal reason for petitioner seeking relief by habeas corpus from the sentence for grand
larceny, at a time when his imprisonment for that crime had not commenced, and when he
was, and is, in the midst of serving his sentence of life imprisonment for the crime of murder,
is because, under the rules of the board of pardons and parole commissioners, one serving a
sentence to life imprisonment may, after serving seven years, make application for parole, and
that petitioner, having served seven years, could make such application were it not for the fact
that he is also sentenced and committed for the crime of grand larceny, necessitating service
of at least one calendar year of his sentence for that crime before being eligible for parole.
And petitioner's attorneys argue that, unless at some unforeseeable time the board of pardons
sees fit to grant a pardon or commutation of sentence as to the life sentence for murder, the
time will never arrive permitting petitioner to commence serving his term for grand larceny,
or to apply for a parole as to either of such sentences.
Petitioner's counsel concede that the sentence and imprisonment which petitioner is
serving for first-degree murder is lawful, and that if this court should grant the relief
petitioner seeks by habeas corpus, we would, necessarily, have to remand him to the custody
of the warden, to continue serving his term of life imprisonment, unless and until paroled,
pardoned, commuted or released according to law. And they advance no specific reason why
either the sentence of life imprisonment for first-degree murder, or the indeterminate statutory
term imposed for grand larceny, is either excessive or cruel.
imposed for grand larceny, is either excessive or cruel. They earnestly argue, however, that
the combination of the two sentences, and, particularly, the effect of the sentence for grand
larceny, in precluding petitioner from being eligible for parole as to the murder conviction,
undermines opportunity for rehabilitationthat, in such a situation he should not be confined
to the uncertain course of awaiting a possible pardon by executive clemency at some time in
the unforeseeable future, but should now be enabled to obtain justice in the courts. The justice
which petitioner's counsel envision is discharge, in advance, by habeas corpus, from the
sentence and future imprisonment for grand larceny, which petitioner has not yet commenced
to serve.
It seems fitting to observe in this connection that the crime of first-degree murder of which
petitioner was found guilty by the jury was cold-blooded and atrocious. He murdered an
officer of the law engaged in the performance of his official duties as a peace officer, and
apparently did so solely for the criminal purpose of accomplishing the larceny of an
automobile. That he committed two crimes, the effect of the sentences for which now prove
more burdensome and difficult than if he were sentenced for only one of same, even though
that single crime was that of murder, is merely the result of his own wanton and criminal
conduct. Apparently the petitioner stifled, or, at least, failed to give heed to the still small
voice of conscience, or of reason and humanity, and permitted himself to follow, entirely
unrestrained, the basest sort of selfish, cruel, and vicious criminal impulses. That petitioner
did not receive the punishment of death for his crime of murder in the first degree is doubtless
because the jury considered his youth. So, when his counsel plead for justice in the courts,
and deplore his having to depend upon and wait the prompting of executive, clemency at
some unforeseeable or indefinite time in the future, the factual situation is not, as we
conceive it, such as to sustain such appeal to the justice of the courts.
Viewed from a strictly legal standpoint, however, and the long-settled law relating to the
scope of the writ of habeas corpus, and of the relief thereunder, being what it is, we find it
unnecessary to decide as to the merits of the legal reasons assigned by counsel for the
petitioner as the basis upon which they contend that the sentence of petitioner to the term of
years above mentioned, for the crime of grand larceny, superimposed upon the sentence for
the rest of his natural life for the crime of murder in the first degree, was, and is, void.
In finding it unnecessary to pass upon the merits of petitioner's contention at this time, we
are but following the action of the United States supreme court in the case of McNally v. Hill,
293 U.S. 131, 140, 55 S.Ct. 24, 79 L.Ed. 238, 244 (cited by respondent's counsel in their
brief), a case in which the existing legal situation was remarkably similar to that with which
we are now confronted in the instant proceeding.
In McNally v. Hill, supra, the petitioner McNally, was serving a sentence upon the second
count of an indictment, and, in order that he might be eligible for parole at an earlier time
than he would be if a sentence upon the third count of the indictment, upon which he had not,
when making application for habeas corpus, begun to serve, were added to that upon the
second count, he contended that the sentence on the third count was void, for certain legal
reasons. Both the District Court for the Middle District of Pennsylvania, and the Circuit Court
of Appeals of the Third Circuit, 69 F.2d 38, had passed adversely upon the merits of the
questions raised by the petitioner, and the matter was before the supreme court upon
certiorari, 292 U.S. 619, 54 S.Ct. 773, 78 L.Ed. 1476, issued to said Third Circuit Court of
Appeals. Mr. Justice Stone (later Chief Justice), in the opinion, on page 135 of 293 U.S. on
page 26 of 55 S.Ct., on Page 241 of 79 L.Ed., stated:
We find it unnecessary to consider the questions raised or decided below, which the
petitioner presses here. We conclude that, as it appears from the petition that the detention
of petitioner is lawful under the sentence on the second count, there is no occasion, in a
habeas corpus proceeding, for inquiry into the validity of his conviction under the third."
that the detention of petitioner is lawful under the sentence on the second count, there is no
occasion, in a habeas corpus proceeding, for inquiry into the validity of his conviction under
the third.
1. Indeed, it is fundamental in the law relating to habeas corpus that the scope of the
inquiry permissible under the writ is limited to the question of whether or not the
imprisonment or detention of petitioner is presently unlawful, and whether or not he is
entitled to his immediate release. This principle is clearly and positively stated under the
subject Habeas Corpus in 39 C.J.S., Habeas Corpus, sec. 13, page 443, as follows:
Where the restraint is justified, the writ does not lie. It is well settled that a prisoner has
no right to a writ of habeas corpus unless he is entitled to immediate release, and the writ will
not issue unless he is presently restrained of his liberty without warrant of law. The writ of
habeas corpus is concerned solely with the legality of restraint at the time of the filing of the
petition for its issue, or by the condition existing at the time of the hearing or final decision
thereon. * * * (Emphasis added.)
In support of the text numerous federal cases are cited, first among which is McNally v.
Hill, supra, undoubtedly a leading case on the subject; also, cases are cited from state courts
of California, Michigan, Oklahoma, West Virginia, Kansas, Missouri, Washington and
Georgia, in support of the above-quoted text.
The opinion of Mr. Justice Stone in McNally v. Hill, supra, which was concurred in by all
the other justices, is scholarly, and presents, clearly and ably, that high court's views as to
many phases of the subject of habeas corpus. As before stated, the legal situation and the
questions involved in that case are very similar to those in the instant case. Consequently, I
feel constrained to quote at some length from that opinion. The portion thereof as reported on
pages 136-139, inclusive, of 293 U.S., on page 26 of 55 S.Ct., and pages 242 and 243 of 79
L.Ed., is as follows: "Originating as a writ by which the superior courts of the common law
and the chancellor sought to extend their jurisdiction at the expense of inferior or rival
courts, it ultimately took form and survived as the writ of habeas corpus ad subjiciendum,
by which the legality of the detention of one in the custody of another could be tested
judicially.
Originating as a writ by which the superior courts of the common law and the chancellor
sought to extend their jurisdiction at the expense of inferior or rival courts, it ultimately took
form and survived as the writ of habeas corpus ad subjiciendum, by which the legality of the
detention of one in the custody of another could be tested judicially. See Holdsworth, History
of the English Law, vol. 9, 108-125. Its use was defined and regulated by the Habeas Corpus
Act of 1679, 31 Car. II., c. 2. The legislation and the decisions of the English courts
interpreting it have been accepted by this Court as authoritative guides in defining the
principles which control the use of the writ in the federal courts. See Ex parte Watkins, supra,
3 Pet. [193] 202, 7 L.Ed. 650 [653]; Ex parte Yerger, supra, 8 Wall. [851] 95, 19 L.Ed. 332
[335]; Ex parte Parks, supra, 93 U.S. [18] 21, 22, 23 L.Ed. 787 [788].
The purpose of the proceeding defined by the statute was to inquire into the legality of the
detention, and the only judicial relief authorized was the discharge of the prisoner or his
admission to bail, and that only if his detention were found to be unlawful. In this, the statute
conformed to the traditional form of the writ, which put in issue only the disposition of the
custody of the prisoner according to law. There is no warrant in either the statute or the writ
for its use to invoke judicial determination of questions which could not affect the lawfulness
of the custody and detention, and no suggestion of such a use has been found in the
commentaries on the English common law. Diligent search of the English authorities and the
digest before 1789 has failed to disclose any case where the writ was sought or used, either
before or after conviction, as a means of securing the judicial decision of any question which,
even if determined in the prisoner's favor, could not have resulted in his immediate release.
Such use of the writ in the federal courts is without the support of history or of any
language in the statutes which would indicate a purpose to enlarge its traditional function.
which would indicate a purpose to enlarge its traditional function. Section 14 of the Judiciary
Act [28 U.S.C.A. 2241], by the language already quoted, was at pains to declare that the
writ might issue for the purpose of inquiring into the cause of restraint of liberty. Without
restraint of liberty, the writ will not issue. Wales v. Whitney, 114 U.S. 564, 5 S.Ct. 1050, 29
L.Ed. 277; Stalling v. Splain, 253 U.S. 339, 343, 40 S.Ct. 537, 64 L.Ed. 940 [943]. Equally,
without restraint which is unlawful, the writ may not be used. A sentence which the prisoner
has not begun to serve cannot be the cause of restraint which the statute makes the subject of
inquiry.
Considerations which have led this Court to hold that habeas corpus may not be used as a
writ of error to correct an erroneous judgment of conviction of crime, but may be resorted to
only where the judgment is void because the court was without jurisdiction to render it, Ex
parte Watkins, supra, 3 Pet. 203, 7 L.Ed. 650 [653]; Knewel v. Egan, 268 U.S. 442, 445, 447,
45 S.Ct. 522, 69 L.Ed. 1036 [1039, 1040], lead to the like conclusion where the prisoner is
lawfully detained under a sentence which is invalid in part. Habeas corpus may not be used to
modify or revise the judgment of conviction. Harlan v. McGourin, 218 U.S. 442, 31 S.Ct. 44,
54 L.Ed. 1101, 21 Ann.Cas. 849; United States v. Pridgeon, 153 U.S. 48, 63, 14 S.Ct. 746, 38
L.Ed. 631 [637]. Even when void, its operation may be stayed by habeas corpus only through
the exercise of the authority of the court to remove the prisoner from custody. That authority
cannot be exercised where the custody is lawful.
Wherever the issue has been presented, this Court has consistently refused to review,
upon habeas corpus, questions which do not concern the lawfulness of the detention. In re
Graham, 138 U.S. 461 [462], 11 S.Ct. 363, 34 L.Ed. 1051; In re Swan, 150 U.S. 637, 653, 14
S.Ct. 225, 37 L.Ed. 1207 [1211]; Harlan v. McGourin, [21S U.S. 442, 31 S.Ct.
[218 U.S. 442, 31 S.Ct. 44, 54 L.Ed. 1101, 21 Ann.Cas. 849], supra; United States v.
Pridgeon, [153 U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631], supra; Nishimura Ekiu v. United States,
142 U.S. 651, 12 S.Ct. 336, 35 L.Ed. 1146; Iasigi v. Van de Carr, 166 U.S. 391, 17 S.Ct. 595,
41 L.Ed. 1045; Hale v. Henkel, 201 U.S. 43, 77, 26 S.Ct. 370, 50 L.Ed. 652 [666]; Ex parte
Wilson, 114 U.S. 417, 421, 5 S.Ct. 935, 29 L.Ed. 89 [90]. The lower federal courts have
generally denied petitions for the writ where the prisoner was at the time serving a part if his
sentence not assailed as invalid.
A significant statement occurs in footnote 6, on pages 139, 140 of 293 U.S., on page 28 of
55 S.Ct., pages 243, 244 of 79 L.Ed., which is as follows:
The Courts of Appeals in circuits other than the 8th have uniformly denied petitions for
writs of habeas corpus when the prisoner was not at that time serving the part of the sentence
said to be invalid. Carter v. Snook, [5 Cir.], 28 F.2d 609; Eori v. Aderhold, [5 Cir.], 53 F.2d
840, 841; De Bara v. United States, [6 Cir.], 99 F. 942; United States [ex rel. Wash.] v.
Carpenter, [9 Cir.], 151 F. 214, 9 L.R.A.,N.S., 1043, 10 Ann.Cas. 509; Mabry v. Beaumont,
[9 Cir.], 290 F. 205, 206; Dodd v. Peak, 60 App.D.C. 68, 47 F.2d 430, 431. And to the like
effect, see Woodward v. Bridges, D.C. 144 F. 156; Ex parte Davis, c.c., 112 F. 139.
This was the view of the Court of Appeals for the Eighth Circuit in Connella v. Haskell,
158 F. 285, 289. But in O'Brien v. McClaughry [8 Cir.], 209 F. 816, 820, 821, that court, in
order that the prisoner might apply for parole for the valid part of his sentence, remanded the
prisoner with directions to the District Court to discharge the prisoner from custody with
respect to the invalid sentence, but to remand him to custody upon the valid sentence. This
procedure was followed by the same court in Cahill v. Biddle [8 Cir.], 13 F.2d 827- 829. But
see Morgan v. Sylvester [8 Cir.], 231 F. 886, SS7; Hostetter v. United States [S Cir.], 16
F.2d 921, 923; and Schultz v. Biddle [S Cir.],
887; Hostetter v. United States [8 Cir.], 16 F.2d 921, 923; and Schultz v. Biddle [8 Cir.], 19
F.2d 478, 480, in the same court.
In Colson v. Aderhold, 5 F.Supp. 111, the district court for northern Georgia entertained a
writ for habeas corpus, reduced the sentence from fifty to thirty-five years, and remanded him
for custody to serve the valid part of his sentence.
Petitioner, in his brief, has cited O'Brien v. McClaughry, Warden, 8 Cir., 209 F. 816,
referred to in said footnote 6, also, Munson v. McGlaughry, 8 Cir., 198 F. 72, 42 L.R.A.,N.S.,
302. In the Munson case, Charles Munson, the petitioner, had been indicted, convicted, and
sentenced upon two separate counts charging, respectively, burglary of a post-office building
with intent to commit larceny therein, and larceny actually committed at the same time. He
applied for a writ of habeas corpus, which was denied by the United States District Court for
the district of Kansas, and he then appealed to the Circuit Court of Appeals for the eighth
circuit. Before applying for the writ, Munson had served his sentence for burglary, and was
being detained upon the sentence of larceny. The gist of the circuit court's holding is
contained in the syllabus, and is as follows:
Criminal lawsentenceburglary and larceny.
1. The sentence of a defendant, convicted on two separate counts of an indictment, under
sections 5478 and 5456, or 5475, Revised Statutes (U.S.Comp.Stat. 1901, pp. 3683, 3694,
3696 [18 U.S.C.A. 1707, 2112, 2115]) of burglary of a postoffice building with intent to
commit larceny and of larceny committed at the same time and as a part of a continuous
criminal act, to separate punishments for the burglary and the larceny, is ultra vires and void
as to the sentence for the larceny, and after the defendant has satisfied the sentence for the
burglary, he is entitled to his release on habeas corpus.
Habeas corpusexcessive judgment.
2. The excess of a judgment beyond the jurisdiction of the court which renders it is as
void as a judgment without any jurisdiction, and a prisoner held under such excess is entitled
to his release by writ of habeas corpus.
In this Munson case, the fundamental principle of the law of habeas corpus hereinbefore
stated was not departed from. The prisoner was, when he made application for the writ,
presently deprived of his liberty upon what the appellate court found to be an unlawful
sentence, and was entitled to his immediate release.
The opinion in the case of O'Brien v. McClaughry, supra, referred to, and followed,
Munson v. McClaughry, supra, but in its holding the court went far beyond the scope of its
decision in Munson v. McClaughry, supra. The situation was similar, in that O'Brien was
accused, convicted, and sentenced upon separate counts for breaking and entering a post
office with intent to commit larceny, and for actually committing larceny therein, both acts
having been committed simultaneously and as part of a continuing transaction. But O'Brien's
petition for habeas corpus was presented while still serving the sentence upon the first court,
for burglary, which was admittedly a lawful detention, and at a time when he was not entitled
to his immediate release. He did so in order that he might be eligible for parole upon having
served one third of his sentence of five years upon the first count, instead of upon having
served one third of eight years, the aggregate of the terms of both sentences. The circuit court
for the eighth circuit, following Munson v. McClaughry, held, in effect, that the sentence on
the second count was void, and reversed and remanded the case, with directions to the district
court to discharge the petitioner from the custody of the warden, as to the charge of larceny,
but to remand him upon the charge of breaking into a post office. The learned Circuit Judge
Smith, who wrote the opinion, stated, on page 821 of 209 F.: "We cannot conceive that the
second sentence against the petitioner, utterly void as it was and is, should be used to
defer his right to apply for a parole.
We cannot conceive that the second sentence against the petitioner, utterly void as it was
and is, should be used to defer his right to apply for a parole. United State v. Pridgeon, 153
U.S. 48, 14 S.Ct. 746, 38 L.Ed. 631. * * *
This reasoning was logical enough, and perhaps just, but it clearly disregarded the
fundamental principles of habeas corpus, in that the prisoner's detention, at the time of the
court's decision in the O'Brien case, was not presently unlawful, nor was he then entitled to
his immediate discharge, his remand in order to complete serving his sentence for burglary,
being essential.
The United States supreme court, however, in the case of Morgan v. Devine, 237 U.S. 632,
35 S.Ct. 712, 59 L.Ed. 1153, in the opinion by Mr. Justice Day, decided in 1915, about three
years after the decision in Munson v. McClaughry, supra, and about one and a half years after
the decision in O'Brien v. McClaughry, supra, referred to the Munson case, and disagreed
with and, in effect, overruled same, holding in effect, under the acts of Congress involved (in
all three cases), that, notwithstanding the breaking and entering with intent to commit larceny,
and the actual larceny itself, were a continuing transaction, and the acts emanated from a
single criminal intent, the Congress had seen fit to make the burglarious entry with intent to
commit larceny a complete offense, and, also, the actual larceny itself a separate and distinct
offense. Manifestly, the effect of this decision by the supreme court was to disapprove both
the decision in the Munson v. McClaughry, supra, and that in O'Brien v. McClaughry, supra,
for, in the O'Brien case, following the court's reasoning in the Munson case, the opinion, in its
holding that the sentence upon the second count, for larceny, was void, and that the prisoner
was entitled to release therefrom upon habeas corpus, in order that he might earlier apply for
parole, obviously was predicated upon the theory that the criminal acts of the prisoner
constituted only the one offense, burglary, and not two offenses, burglary and also larceny,
and that the conviction and sentence for larceny was excessive and void.
the conviction and sentence for larceny was excessive and void. This theory was clearly
rendered untenable by the force and effect of the supreme court's decision in Morgan v.
Devine, supra.
In the much later case of Hostetter v. United States, 1926, 16 F.2d 921, a case also decided
by the circuit court of Appeals for the eighth circuit, it is stated, on page 923 of 16 F.2d, in
the opinion by Scott, district judge:
Point VI. Because of excessive sentence defendant (or plaintiff in error) will be deprived
of his right to petition for parole at the time entitled thereto under the provisions of the Parole
Act of June 25, 1910,' as amended (Comp.St 10535-10544 [18 U.S.C.A. 3570, 4164,
4202-4207, 4281]).
This point is attempted to be sustained by citation of the case of O'Brien v. McClaughry,
[8 Cir.], 209 F. 816. The opinion in the cited case, as written, is not in our opinion an
authority on the proposition quoted. It may not be inappropriate to say, however, that the case
of O'Brien v. McClaughry follows the case of Munson v. McClaughry [8 Cir.], 198 F. 72, 42
L.R.A.,N.S. 302, and that the United States Supreme Court, in the case of Morgan v. Devine,
237 U.S. 632, at page 640 et seq., 35 S.Ct. 712, 59 L.Ed. 1153, disapproved the case of
Munson v. McClaughry, and we think both the McClaughry Cases in effect overruled.
It is clear from the foregoing statement in Hostetter v. United States, supra, that since
Morgan v. Devine, supra, the circuit court of appeals of the eight circuit has fallen in line with
the other United States circuit courts of appeals of all other United States circuits in adhering
to the fundamental principles of the law as to habeas corpus, hereinbefore stated and
explained. And McNally v. Hill, supra, decided by the United States supreme court in 1934,
containing the masterly opinion by Mr. Justice Stone (from which we have herein before
extensively quoted) appears to confirm and make unmistakably clear the position of the
federal courts upon the phases of the law as to habeas corpus which are applicable in the
instant case.
upon the phases of the law as to habeas corpus which are applicable in the instant case.
Hereinbefore, reference has also been made to the fact that the state courts, generally, have
adhered to the principles of habeas corpus law hereinabove discussed, and mention has been
made of eight states in which cases, cited in the footnotes to page 443 of 39 C.J.S., Habeas
Corpus, sec. 13, have been decided, and from said page 443 quotation has been made of a
clear statement of those principles.
2-4. It has been held repeatedly, and, in fact is one of the cardinal principles of the law as
to habeas corpus, that the remedy of habeas corpus must not be permitted to be converted into
a mere substitute for remedy by appeal, writ of error or certiorari. When, as in the instant
case, a party is not being illegally deprived of his liberty and is not entitled to immediate
release from custody, but seeks to be relieved from a judgment and sentence which he
contends has been unlawfully imposed, even though same may require his imprisonment to
commence at a future time, the remedy in Nevada is, generally, by appeal, and, in certain
situations, by certiorari. If a party seeking release from a void or voidable judgment has
permitted his time to take an appeal to expire, without taking the necessary steps to initiate
such appeal, he cannot obtain relief by habeas corpus from such judgment, unless he is
unlawfully restrained of his liberty thereunder.
The respondent has cited, in that connection, the case of Ex parte Tani, 29 Nev. 385, 91 P.
137, 13 L.R.A., N.S., 518. In that case Mr. Justice Talbot, in the opinion, included an
exhaustive collection of authorities pertaining to, or showing the proper application of the
remedy of habeas corpus. Among other things, the learned justice stated the following in said
opinion, as reported on page 399 of 29 Nev., and page 141 of 91 P.:
This court has decided that the writ of habeas corpus is not intended to take the place of
an appeal, writ of error, or certiorari, and cannot be used for the purpose of reviewing errors
or irregularities in the proceedings of a court having jurisdiction {Ex parte Smith, 2 Nev.
33S
of a court having jurisdiction (Ex parte Smith, 2 Nev. 338; Ex parte Maxwell, 11 Nev. 428;
Ex parte Winston 9 Nev. 71; Ex parte Twohig, 13 Nev. 302; Ex parte Bergman, 18 Nev. 331,
4 P. 209); that, if the prisoner is held under a valid commitment, the legality of other
commitments need not be considered until his term of service under the good commitment
has expired (Ex parte Ryan, 17 Nev. 139, 28 P. 1040; Ex parte Ryan, 10 Nev. 261); * * *.
See, also, Ex parte McKay, 63 Nev. 262, 168 P.2d 315, and, particularly, the numerous
authorities cited, on pages 267, 268 of 63 Nev., and on pages 317, 318 of 168 P.2d in the
opinion by Mr. Justice Ducker.
5, 6. The law is well settled in this state that a prisoner serving under a valid judgment and
sentence, and held under a valid commitment, cannot invoke the remedy of habeas corpus to
relieve him from another judgment, sentence and commitment under which he has not
commenced to serve, for the reason that he is not, by such second commitment, unlawfully, or
at all, presently deprived of his liberty. Such an application for habeas corpus, under such
circumstances, is premature. The petitioner in the instant proceeding, if and when his
sentence and commitment for murder in the first degree shall have been lawfully terminated,
and he has commenced to serve his sentence for grand larceny, will then, but not before, be in
a position in which he can appropriately seek relief by habeas corpus, by establishing, if he
can sufficiently do so, that the judgment, sentence and commitment for grand larceny is void.
In view of the overwhelming weight of the authorities, both of the federal and state courts,
and of the former holdings and pronouncements of this court, it is incumbent upon us to
dismiss the instant proceeding. It is, therefor, ordered that this proceeding be, and hereby is,
dismissed, and petitioner is remanded to the custody of the warden of the state prison.
____________
66 Nev. 51, 51 (1949) First Nat'l Bank v. Wolff
FIRST NATIONAL BANK OF NEVADA, Administrator with the Will Annexed of
LEONARD H. WOLFF, Deceased, Respondent, v. SYLVIA L. WOLFF, Appellant.
No. 3566
February 15, 1949. 202 P.2d 878.
1. Divorce.
On death of party to divorce action pending appeal from decree therein, appeal abates, unless
property rights are involved.
2. Divorce.
In granting divorce, court may make such disposition of parties' community property and set apart
such portion of husband's separate property for wife's support as is just and equitable. N.C.L.1931-1941
Supp., sec.9463.
3. DivorceHusband and Wife.
Where property rights are not in issue in divorce action, a decree limited to granting divorce does not
prejudice such rights, but each spouse's former separate property becomes his or her individual property
and former community property is held by parties as tenants in common.
4. Divorce.
Either party to divorce decree may enforce his or her property rights in separate action for such
purpose.
5. Divorce.
Since divorce decree in action wherein no issue concerning property is raised does not prejudice
wife's rights to furniture, furnishings, and household articles given to or purchased by spouses or brought
into household by wife, action cannot be revived for purpose of determining such rights.
6. Divorce.
The primary and substantive subject of litigation in divorce suit is parties' personal relation, and their
right to community property is but incidental thereto.
7. Divorce.
Where one of parties to divorce action dies before decision on question of their right to community
property, action cannot be continued for purpose of determining property rights, and, if there was
originally no issue on such subject, action cannot be revived for purpose of adjudicating question in case
of death after judgment.
8. DivorceHusband and Wife.
In absence of reference to community property in divorce decree, parties to suit become tenants in
common of such property, and plaintiff's death after entry of judgment does not impair defendant's right
thereto, but such right must be enforced in independent action to which all who may have any interest in
property should be made parties.
9. Divorce.
On motion to dismiss appeal from decree granting husband a divorce, parties' alleged joint property
rights under laws of foreign state cannot be considered, in absence of showing of present existence of
such rights, of what they consist or consisted, particular laws giving rise thereto, manner in which they
were or are connected with divorce action, or absence of proper remedy by separate action to enforce
them.
10. Divorce.
Spouses' rights, created by their acts and without basis in marital status, as distinguished from rights
granted by law and based on marital relationship are not property rights preventing abatement of appeal
from divorce decree on death of party thereto.
11. Descent and Distribution.
The legal meaning of word inheritance is limited to property descending to an heir, though word is
sometimes used to refer to property acquired either by descent or under will.
An inheritance is an estate descended to heir by single operation of law, and inheritance,
descent, or hereditary succession refers to acquisition of decedent's estate by right of representation
as his heir at law.
An inheritance is perpetuity in lands to a man and his heirs or right to succeed to estate of person
dying intestate.
A right to inheritance is conferred by operation of law, and, when wife is husband's heir, right is based
on marital relationship.
15. Wills.
A husband has complete testamentary freedom, unhampered by any right of his wife, marital or
otherwise, in disposition of his separate property.
16. Divorce.
Questions, raised on wife's appeal from decree granting husband divorce, as to her claim to interest in
his property under his will, devising half of his estate to wife if they were married at time of his death,
were moot, where he died after entry of decree and denial of wife's motion for new trial, as she could not
take under will in any event.
17. Divorce.
Complete dissolution of marriage relation and restoration of spouses to status of single persons
immediately follows rendition of final divorce decree.
Appellate review being in nature of writ of error, perfection of appeal does not vacate or suspend
judgment appealed from.
19. Wills.
Since a will speaks as of testator's death and takes effect at time thereof, status of beneficiaries
thereunder must be determined as of that particular time.
20. Wills.
An express condition or limitation, showing that testator does not intend testamentary gift to his wife
to take effect unless she is still his wife at time of his death, will be enforced.
21. Divorce.
A claim of decedent's divorced wife that decree granting decedent divorce deprived her of property
rights in that she would be entitled to family allowance from decedent's estate if restored to status of his
widow, cannot prevent abatement of her appeal from decree, as such right is purely personal right to
support for limited time and cannot be assigned, and such allowance would probably be made only to
minor child if claimant has reasonable maintenance derived from other property. N.C.L.1931-1941
Supp., sec. 9882.118.
Action by Leonard H. Wolff against Sylvia L. Wolff for a divorce. From a decree granting
plaintiff a divorce and denying defendant's motion for a new trial, she appealed, and, after
plaintiff's death, the First National Bank of Nevada, as administrator with the will annexed of
plaintiff's estate, was substituted as plaintiff. On substituted plaintiff's motion to dismiss the
appeal. Appeal dismissed.
Norman H. Samuelson, of Reno, for Appellant.
John S. Belford, of Reno, for Respondent.
OPINION
By the Court, Eather, J.:
The case is before the court on a motion to dismiss the appeal.
The action was brought by plaintiff, Leonard H. Wolff, to secure a divorce from
defendant, Sylvia L.
to secure a divorce from defendant, Sylvia L. Wolff, appellant herein, upon the ground of
extreme cruelty. It was alleged in the complaint and admitted in the answer that there was no
community property belonging to the parties. The only relief sought by the answer was a
denial of the divorce.
The trial of the action was had on September 9, 1948, and a decree of divorce granted to
plaintiff. No issue concerning property was raised in the trial court, and except for the finding
that there is no community property belonging to the parties, no mention of property is
made either in the findings or decree.
Thereafter, a motion for a new trial was made by defendant and denied on October 22,
1948. It is from the decree and the order denying this motion that the appeal is taken.
Plaintiff died on October 23, 1948. In due course his will was admitted to probate and
letters of administration with the will annexed issued to respondent, First National Bank of
Nevada. Thereafter respondent, as such administrator, was substituted as plaintiff in the
action.
After the appeal was perfected respondent moved to dismiss the same upon the following
grounds:
1. That Leonard H. Wolff, plaintiff below, died on October 23, 1948.
2. That the action is one relating to a purely personal status and that the death of Leonard
H. Wolff abates the same.
3. That no property rights are involved in this action.
4. That the questions raised on the appeal have now become moot and that it is futile to
pursue the appeal further.
In opposition to the motion appellant filed two affidavits setting forth certain property
rights which she claims will be prejudiced unless the decree is reversed.
1. Where a party to a divorce action dies pending an appeal from the decree, the appeal
abates unless property rights are involved.
an appeal from the decree, the appeal abates unless property rights are involved. This rule is
supported by the great weight of authority and has twice been approved by this court. See
Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212, 148 A.L.R. 1104, and Morrow v. Morrow, 62 Nev.
492, 156 P.2d 827. The reasons for the rule are set forth in those cases and need not be
repeated here. This brings us to a consideration of whether or not property rights are involved
in this action.
Appellant relies upon the following as constituting property rights, as that term is used
in cases which have considered this question; her interest in furniture, furnishings and
household articles which were given to the parties, purchased by them or brought into the
household by appellant; substantial joint property rights under the laws of the State of
Colorado; her right to take under decedent's will, and to a family allowance from his estate
should the decree be reversed.
2. In granting a divorce, the court may make such disposition of the community property
of the parties and set apart such portion of the husband's separate property for the support of
the wife as is just and equitable. Sec. 9463, N.C.L. Supp.1931-1941, as amended by stats.
1943, p. 117. However, in this case there was no community property and no issue
concerning property of any kind was tendered to the lower court for determination.
3. It is doubtful if the title of the parties to the furniture, furnishings and household
equipment could have been litigated in the trial court, Lemp v. Lemp, supra, but this question
is not before us for decision. However, it is fundamental that where property rights are not in
issue in a divorce action, a decree which is limited to granting a divorce in no way prejudices
such rights. Upon the entry of such a decree the former separate property of the husband and
wife is his or her individual property, and the property formerly held by the community is
held by the parties as tenants in common.
Ambrose v. Moore, 46 Wash. 463, 90 P. 588, 11 L.R.A., N.S., 103; Le Baron v. Le Baron, 23
Ariz. 560, 205 P. 910.
4. From the necessities of the case the right of either party after a divorce has been granted,
to enforce his or her rights to such property in a separate action brought for that purpose
cannot be doubted. De Godey v. Godey, 39 Cal. 157; Johnson v. Swanson, 209 Ark. 144, 189
S.W.2d 803.
5. Since the decree appealed from in no way prejudices any rights of appellant to such
furniture, furnishings or equipment, and since no issue as to such property was raised in the
lower court, the action cannot be revived for the purpose of determining such rights.
6-8. The primary and substantive subject of litigation in a suit for divorce is the personal
relation of the parties, and their right to the community property is but incidental thereto. If,
before a decision under that question is made, one of the parties dies, the action cannot be
continued for the purpose of determining the rights of property; and, if there was originally no
issue upon this subject, it cannot be revived, in case of death after judgment, for the purpose
of having this question adjudicated. In the absence of any reference thereto in the decree, the
parties to the suit became tenants in common of the community property, and the death of the
plaintiff after the entry of judgment did not impair the appellant's right thereto; but this right
must be enforced in an independent action (De Godey v. Godey, 39 Cal. 157), in which all
who may have any interest therein should be made parties. Kirschner v. Dietrich, 110 Cal.
502, 42 P. 1064, 1065.
9. As to the claim of appellant that * * * there were substantial joint property rights under
the laws of the State of Colorado, no showing is made that these rights now exist, or of what
they consist or consisted, what particular laws of Colorado give rise to them, in what manner
they were or are connected with the divorce action or that appellant's proper remedy is not a
separate action to enforce them.
a separate action to enforce them. In the absence of such a showing we are unable to consider
such alleged rights.
The decedent's will (Par. 1) provides as follows:
To my wife, Sylvia Wolff, I give one-half of my estate if we are married at the time of my
death; if we are not married at the time of my death, I give the portion which would otherwise
have gone to my wife, to my sister, Louise Elzer.
Appellant contends that her interest under the will is a property right and that if the decree
be reversed she will take thereunder as though she had, in fact, been married to decedent at
the time of his death. In support of this position great reliance is placed upon the following
statement in Lemp v. Lemp, supra [62 Nev. 91, 141 P.2d 216]:
Though there is no controversy as to property rights in this case, it could be argued that
there may be property rights in fact, and that appellant might be denied her right of
inheritance or other property rights unless the judgment awarding plaintiff a divorce be
reversed.
10. In the cases called to our attention which are concerned with the question now before
the court, rights granted by operation of law and based upon the marital relationship, such as
dower and homestead rights, are held to be property rights. On the other hand, rights
created by act of the parties and having no basis in the marital status, such as a debt, are not
property rights.
11-13. Although the word inheritance is sometimes loosely used to refer to property
acquired either by descent or under a will, its legal meaning is limited to property which
descends to an heir.
InheritanceAn estate which has descended to the heir and has been cast upon him by
the single operation of law. Inheritance, descent or hereditary succession is the title whereby a
man, on the death of an ancestor, acquires his estate by right of representation as his heir at
law. Ballentine's Law Dictionary.
InheritanceA perpetuity in lands to a man and his heirs; the right to succeed to the
estate of a person who dies intestate."
heirs; the right to succeed to the estate of a person who dies intestate. Bouvier's Law
Dictionary, Rawle's Third Rev.
14. It is to be noted that a right to an inheritance is conferred by operation of law, and
when the wife is the heir of the husband, is based upon the marital relationship. It is therefore
similar to the marital rights discussed above. If, in this case, we held that the word
inheritance included property received by devise or bequest, we would not only improperly
extend the meaning of the word, but would also extend the meaning of the term property
rights as it is commonly understood in cases of this kind. We perceive no reason why this
should be done.
15, 16. The interest of appellant under decedent's will is entirely different from a right of
inheritance, dower, homestead or other marital right. It is not a right arising by operation of
law and based upon marital status. Since everything that would pass under the will of
decedent was his separate property, he had complete testamentary freedom, unhampered by
any right of appellant, marital or otherwise. The fact that appellant would have taken under
the will had she been married to decedent at the time of his death, does not alter the situation.
She would have taken, not by right of statute, but by choice of the testator, precisely as would
any other beneficiary under the will.
Another reason, sufficient in itself, for holding the questions raised by the appeal to be
moot, so far as appellant's claim under the will is concerned, is that she can, in no event, take
thereunder.
17. A complete dissolution of the marriage relation and restoration of the parties to the
status of single persons immediately follows the rendition of the final decree of divorce.
Keezer on Marriage and Divorce, 2d Ed. sec. 535.
18. Since an appellate review in this state is in the nature of a writ of error, the perfection
of an appeal does not vacate or suspend the judgment appealed from.
Cain v. Williams, 16 Nev. 426; Brooks v. Nevada Nickel Syndicate, 24 Nev. 311, 53 P. 597.
19. Under the circumstances appellant and decedent were not married to each other on
October 23, 1948, the date of his death. We are not concerned here with the question of the
restoration of rights by the reversal of a decree, but rather with the construction of a will.
Since a will speaks as of the death of the testator, and since, A will takes effect at the death
of the testator; not before and not after, Page on Wills, sec. 938, the status of the parties is to
be determined as at that particular time.
20. An express condition, or a limitation, which shows that testator does not intend the
gift to take effect unless the beneficiary is his wife at the time of his death, will be enforced.
Life time edition, volume 1, Page on Wills, sec. 522.
Appellant was not the wife of decedent at the time of his death and the will in question
contains such an express condition. We see no reason why it should not be enforced.
21. As stated above, appellant claims that the decree appealed from deprives her of
property rights in that she would be entitled to a family allowance from decedent's estate if
she were restored to the status of his widow. There are at least two reasons why this claim
cannot prevent the abatement of the appeal.
Such a right is merely one for support for a limited period of time; a right which cannot be
assigned and which can be enjoyed by the recipient alone. It is therefore a purely personal
right. Foy v. Smith's Estate, 58 Nev. 371, 81 P.2d 1065.
If appellant has a reasonable maintenance derived from other property the allowance, in all
probability, would be made only to a minor child. See sec. 9882.118, N.C.L. Supp.
1931-1941. No showing was made by the appellant as to her needs.
The appeal is dismissed.
Horsey, C. J., and Badt, J., concur.
____________
66 Nev. 60, 60 (1949) Cunningham v. Washoe County
MAE CUNNINGHAM, Appellant, v. WASHOE
COUNTY, Respondent.
No. 3557
March 7, 1949. 203 P.2d 611.
1. Common Law.
Under statute adopting principles of the common law, repeal of common law, if not expressly
authorized by terms of a statute, must appear by plainest and most necessary implication in statute itself.
2. Nuisance.
Statutes outlawing houses of prostitution within 400 yards of a school or church or on main street of a
town, do not by implication legalize such houses in other areas. N.C.L.1929, secs. 10193, 10194.
3. Nuisance.
Maintenance and public operation of house of prostitution was a nuisance within statute defining
nuisance as something indecent and offensive to the senses, and as such was properly enjoined by district
court at suit of county commissioners. N.C.L.1929, secs. 2043, 9051.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Action by Washoe County against Mae Cunningham to enjoin defendant from using
certain premises in the city of Reno as a house of prostitution. From an order denying
defendant's motion to dissolve a temporary restraining order, and denying a motion to dismiss
the action, defendant appeals. Order affirmed.
Emerson J. Wilson, of Reno, for Appellant.
Harold O. Taber, District Attorney and Gordon R. Thompson, Deputy District Attorney,
both of Reno, for Respondent.
OPINION
Washoe County, a political subdivision of the State of Nevada, commenced this action in
the court below to enjoin the defendant Mae Cunningham from using premises known as
No.
enjoin the defendant Mae Cunningham from using premises known as No. 900 East
Commercial Row, in the city of Reno, as a house of prostitution. On ex parte application of
plaintiff the district court issued a temporary restraining order restraining defendant from
using the premises as a house of prostitution. Defendant moved to dissolve the restraining
order and dismiss the action, and has appealed from the court's order denying such motion.
The proceedings were initiated under authority of section 2043, N.C.L., quoted in full in
the margin,
1
which requires the board of county commissioners of any county to direct the
district attorney to notify any person responsible for maintaining a nuisance to abate the same,
and in case of disobedience of said notice to bring an appropriate action for the purpose. The
nuisances referred to are such nuisances as defined by section 9051, N.C.L., likewise quoted
in full in the margin.
2
The complaint in the action sets forth as an exhibit a written
complaint filed with the board of county commissioners signed by B. H. Caples, M. D.,
health officer and state director of the State Board of Health, which alleged in some detail
that defendant was publicly operating said premises as a house of prostitution, employing
therein some eleven prostitutes, with six maids, cook and a housekeeper as part of her
organization, that she appropriated the earnings of the prostitutes, all of whom were
alleged, on information and belief, to have been brought into the state with
transportation furnished by the defendant, that the defendant was engaged in
constructing additional quarters for the purpose of bringing into the state some five or six
additional prostitutes and was making further provision for further enlargement of her
business.

____________________

1
Abating Nuisances, Action For.Penalty for Official Neglect. 1. 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 Complied Laws of Nevada [ 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 a court of justice to 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.

2
Nuisance Defined.Abatement of.Actions Instituted. By Whom. 562. 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
The complaint in the action sets forth as an exhibit a written complaint filed with the board
of county commissioners signed by B. H. Caples, M. D., health officer and state director of
the State Board of Health, which alleged in some detail that defendant was publicly operating
said premises as a house of prostitution, employing therein some eleven prostitutes, with six
maids, cook and a housekeeper as part of her organization, that she appropriated the earnings
of the prostitutes, all of whom were alleged, on information and belief, to have been brought
into the state with transportation furnished by the defendant, that the defendant was engaged
in constructing additional quarters for the purpose of bringing into the state some five or six
additional prostitutes and was making further provision for further enlargement of her
business. The complaint filed in the district court alleged the filing of such complaint with the
county commissioners, the making of an appropriate order by that board, the service of notice
by the district attorney and the failure of the defendant to comply, all as required by section
2043. It also alleged in seven additional and separate causes of action (1) the violation of the
provisions of N.C.L., section 10539 in that the defendant knowingly accepted money, without
consideration, from the proceeds of prostitutes; (2) the violation of the provisions of section
10541 in that the defendant transported prostitutes into the state; (3) the violation of the
provisions of section 10127, sub. 2, in that she received compensation for placing women in a
house of prostitution; (4) that defendant violated subdivision 3 of said section by giving
compensation to prostitutes; (5) that she violated subdivision 5 of said section by living with
common prostitutes in said premises; (6) that she violated subdivision 6 of said section by
decoying, enticing and inducing women to become inmates of said premises for said
purpose; {7) that the operation of said premises for the purpose of prostitution, etc.,
annoys, injures, and endangers the safety, health and comfort of the citizens of the
county and offends public decency, defined to be a public nuisance under the provisions
of section 10244.
____________________
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.
inducing women to become inmates of said premises for said purpose; (7) that the operation
of said premises for the purpose of prostitution, etc., annoys, injures, and endangers the
safety, health and comfort of the citizens of the county and offends public decency, defined to
be a public nuisance under the provisions of section 10244.
The additional allegations referred to as Nos. (1) to (7) above are embraced within causes
of action numbered second to eighth, inclusive, of the complaint in the district court. In all
such cases appropriate sections constitute violation of the provisions a misdemeanor
punishable by fine and imprisonment. Although a considerable part of the briefs is devoted to
a consideration of these sections, counsel for the respondent county frankly conceded in the
oral argument that inasmuch as the procedure adopted was that authorized by section 2043
which, in turn, limited the abatement proceedings to the abatement of nuisances as defined by
section 9051, the second to eighth causes of action need not be directly considered as
supporting the injunctive order.
We are thus led to a consideration of N.C.L., sections 10193, 10194, and 10166. The
last-named section makes it a misdemeanor to keep any disorderly house by which the peace,
comfort or decency of the immediate neighborhood is habitually disturbed or to keep an inn
in a disorderly manner. The facts appearing in the record do not bring the case within the
contemplation of this section and it need not be considered further. The other two sections
read respectively as follows:
10193. Houses of Ill-Fame, Location of. 245. 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."
within four hundred yards of any church edifice, building or structure erected for and used for
devotional services or religious worship in this state.
10194. Certain Property Not to be Rented for Hurdy House, or Prostitution. 246. It
shall be unlawful for any owner or agent of any owner or any other person to keep, let or rent
for any length of time, or at all, any house fronting on the principal business street or
thoroughfare of any of the towns of this state, for the purpose of prostitution or for the
purpose of keeping any dance house or house commonly called a hurdy house, or house
where wine, beer or spirituous liquors are sold or served by females or female waiters or
attendants, or where females are used or employed to attract or solicit custom, nor shall any
entrance or exit way to any house referred to in this section be made or used from the
principal business street or thoroughfare of any of the towns of this state.
Opposing the position of the respondent county that the maintenance and operation of a
house of prostitution is a nuisance both under the common law and under section 9051,
appellant contends that sections 10193 and 10194, by outlawing houses of prostitution within
400 yards of a school or church or on the principal business street of a town clearly and
unequivocally * * * repudiated the common law which made houses of prostitution unlawful
wherever they might be located, and insists that it must be concluded that such houses are
lawful in this state, when located in an area not prohibited by law, and conducted in a manner
not forbidden by law.
1. Nevada has by statute adopted the principles of the common law and has in a number of
instances modified the common law by statutory enactment. That this may be done by way of
a constructive repeal of the common law (as in cases where a statute has revised the whole
subject) or that it may be the result of the clear and unquestionable implication from
legislative acts,"3 as maintained by appellant, we may concede to be true where such
situations sufficiently appear.
and unquestionable implication from legislative acts,
3
as maintained by appellant, we may
concede to be true where such situations sufficiently appear. However, to sustain a
justification of the particular acts under this theory, where such acts are not authorized by the
express terms of the statute under which the justification is made, we should have to find the
plainest and most necessary implication in the statute itself. This rule appears to be frankly
admitted even in the authorities submitted by appellant.
2. The district court, in refusing a dissolve the temporary restraining order, refused to find
in sections 10193 and 10194 such clear and unquestionable implication, or such plain and
necessary implication as to warrant the conclusion that the outlawing of houses of prostitution
within 400 yards of a school or church or on the main street of a town intended to declare that
they were lawful in other areas. We are satisfied that the district court was correct in thus
rejecting the defendant's construction of these sections.
3. The maintenance and operation of the house of prostitution in question being a nuisance
under the common law and being within the definition of a nuisance as found in N.C.L.,
section 9051 as being something 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 and not being authorized by statute, either expressly or by plain
or clear or unequivocal or necessary implication, it was properly enjoined and restrained by
the district court. See opinion by Mr. Chief Justice Ducker, speaking for this court in Kelley
v. Clark County, 61 Nev. 293, 127 P. 2d 221, 224, although in that case, which sustained
abatement proceedings initiated under section 2043, the premises involved were within 400
yards of a church and declared to be unlawful under the provisions of section 10193.
____________________

3
39, Am.Jur. 483, Nuisances, 206, n. 18; 46 C.J. 672, Nuisances, 40, id. 674, 41.
involved were within 400 yards of a church and declared to be unlawful under the provisions
of section 10193. Despite this distinction, many of the expressions used by the chief justice
are directly applicable to this case and support the views herein expressed.
Respondent phrases the question for our determination as follows: Does section 10193
make lawful the operation of a house of prostitution located more than 400 yards from a
public school house or church? Respondent insists that the question would be more nearly
correct phrased as follows: Do the various statutory enactments of the Nevada legislature
concerning prostitution and its conduct, constitute it a lawful activity when practiced in an
area not prohibited by statute, or conducted in a manner not forbidden by a statute?
Respondent says that this leads directly to the following question: Do such enactments of the
Nevada legislature stand as a repudiation of the common law determination which declared
such an activity unlawful and therefore a public nuisance? Adopting respondent's two
questions as those for our ultimate consideration, we must answer both of them in the
negative. The nuisance resulting from the operation of a house of prostitution is aggravated
by its location within 400 yards of a school or church, for which the legislature imposed an
additional and criminal liability without limiting the right to the initiation of abatement
proceedings under section 2043. In Kelley v. Clark County, supra, it said:
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.
The penal statutes mentioned in this opinion clearly negative any implication that the
legislature, by making it a penal offense to operate a house of prostitution within 400 yards of
a school or church, intended so to modify existing law as to declare it lawful when operated
elsewhere.
modify existing law as to declare it lawful when operated elsewhere. That it could do so,
confining its regulation only to rules of conduct is beyond the question. See L'Hote v. City of
New Orleans, 177 U.S. 587, 20 S.Ct. 788, 44 L.Ed. 899, a case cited by appellant.
We have carefully considered the other points and authorities presented by appellant but in
view of the conclusions reached above do not find it necessary to discuss them.
The order denying the motion to dissolve the temporary restraining order and denying the
motion to dismiss is affirmed.
Eather, J., concurs.
Horsey, C. J., did not participate.
____________
66 Nev. 67, 67 (1949) Ormachea v. Ormachea
THOMAS ORMACHEA, Appellant v. MARGUERITE
LUCILLE ORMACHEA, Respondent.
On Motion for Allowances Pending Appeal
No. 3575
March 14, 1949. 203 P.2d 614.
Divorce.
On wife's motion in supreme court for allowance of attorneys' fees and support of herself and spouses'
minor children pending husband's appeal from divorce decree, evidence sufficiently showed wife's
necessities and husband's ability to pay therefor, so as to justify order for his payment of wife's accrued
hotel bill of $465.41, $1,000 attorneys' fees, and $250 per month for support of wife and minor children,
until determination of appeal on merits.
Appeal from First Judicial District Court, Churchill County; Frank McNamee, Presiding
Judge.
Action by Marguerite Lucille Ormachea against Thomas Ormachea for divorce. Judgment
for plaintiff, and defendant appeals. On plaintiff's motion for allowances of attorneys' fees
and for support of plaintiff and the parties' minor children.
the parties' minor children. Judgment ordering defendant to pay plaintiff's accrued hotel
bill, attorneys' fees in specified amount, and a stated sum monthly for support of
plaintiff and the minor children.
A. L. Haight, of Fallon, and Kearney & Adams, of Reno, for Appellant.
Griswold & Vargas, of Reno, and James W. Johnson, Jr., of Fallon, for Respondent.
OPINION
Per Curiam:
Upon the appellant husband's appeal the respondent wife has moved this court for the
allowance of an attorney fee in the sum of $5,000, and for support for herself and the four
minor children whose custody was awarded to her by the decree in the sum of $500 per
month. The motion was argued and submitted on affidavits and counter affidavits and by
references to the files, papers and pleadings and evidence adduced in the trial of the case as
the same appear in the bill of exceptions. The law as to the right and duty of this court to
make allowances on behalf of the wife being well settled, counsel confined the oral argument
to a discussion of the facts appearing in the affidavits and in the record and by which they felt
the court should be governed in any order made in the premises. We shall mention only so
much of the factual situation as would appear necessary for the purpose at hand.
The court found that the parties had intermarried in October 1930, and that there were
seven children as the issue of said marriage; that the defendant had been guilty of extreme
cruelty to the plaintiff for a period of several years up to the time of the separation of the
parties, all without fault on the part of the plaintiff; that plaintiff owned an undivided one
quarter interest in certain property known as the Kallenbach Ranch, and that all other
property standing in the name of either or both of the parties was community property;
that the plaintiff was entitled to have awarded to her the custody of the four younger
minor children and that the three older minors over the age of fourteen should have the
right to nominate and select his or her own guardian; that mutual rights of visitation
should be allowed; that there should be allotted to the plaintiff the full title to the
Kallenbach Ranch in Churchill County, Nevada, with certain livestock and equipment
subject to the option of the defendant for a period of thirty days to purchase the same
from plaintiff for $30,000; that there be allotted to plaintiff an additional $10,000 and an
additional $70,000, which last-mentioned sum was payable in not less than equal annual
installments over a period of seventeen years; that plaintiff should have her costs and
disbursements, etc.; that she be allowed $35 per month per child for the children in her
custody, which sums should come out of the $10,000 above mentioned; that the $70,000
item be secured by a lien on all of the property.
parties, all without fault on the part of the plaintiff; that plaintiff owned an undivided one
quarter interest in certain property known as the Kallenbach Ranch, and that all other property
standing in the name of either or both of the parties was community property; that the
plaintiff was entitled to have awarded to her the custody of the four younger minor children
and that the three older minors over the age of fourteen should have the right to nominate and
select his or her own guardian; that mutual rights of visitation should be allowed; that there
should be allotted to the plaintiff the full title to the Kallenbach Ranch in Churchill County,
Nevada, with certain livestock and equipment subject to the option of the defendant for a
period of thirty days to purchase the same from plaintiff for $30,000; that there be allotted to
plaintiff an additional $10,000 and an additional $70,000, which last-mentioned sum was
payable in not less than equal annual installments over a period of seventeen years; that
plaintiff should have her costs and disbursements, etc.; that she be allowed $35 per month per
child for the children in her custody, which sums should come out of the $10,000 above
mentioned; that the $70,000 item be secured by a lien on all of the property. Judgment and
decree of divorce in accordance with the findings of fact and conclusions of law were duly
entered on October 13, 1948, which judgment taxed the costs in the sum of $212.18.
In August 1948, the trial court had ordered appellant to pay respondent $500 a month. A
controversy as to the exact construction, nature and extent of this order need not here be
considered, although it appears that four of such $500 payments were made, the last being in
November 1948. The case had been tried before Honorable Clark J. Guild, district judge, who
made the findings and entered the judgment above referred to. On October 13, 1948,
Honorable Frank McNamee, presiding in said court in place of Judge Guild, on application of
the defendant made an order fixing amount of undertaking staying execution on appeal,"
wherein such undertaking was fixed in the sum of $20,000, and further ordering: "Upon
the filing and approval of such undertaking the execution of such judgment be and the
same is hereby stayed, pending the final conclusion of the proceedings on said appeal."
undertaking staying execution on appeal, wherein such undertaking was fixed in the sum of
$20,000, and further ordering: Upon the filing and approval of such undertaking the
execution of such judgment be and the same is hereby stayed, pending the final conclusion of
the proceedings on said appeal.
Appellant's affidavit recites that she is without funds; that she is living at a hotel at Fallon,
Nevada, with one of the minor children, and that there is an accrued and unpaid hotel bill in
the sum of $465.41 for board, room and laundry; that $500 a month is reasonably required for
the support of herself and the minor children awarded to her custody; that the properties of
the parties as disclosed by the evidence in the trial have a value of in excess of $189,000; that
board and room at the hotel for herself and the minor child presently living with her cost $150
per month, laundry $10 per month, clothing $20 per month, in addition to certain sundries;
that she has no money to pay counsel fees on the appeal and that by reason of the order
staying execution of the judgment is unable to borrow any; and that the defendant is
financially able to pay the sums asked for.
Appellant's affidavit insists that the evidence in the case shows that shortly before plaintiff
filed her complaint for divorce on October 1, 1947 she left the defendant's home taking with
her the sum of approximately $3,600 and that this sum, together with the four $500 payments
made respectively on July 9, September 20, October 4, and November 4, 1948, indicate that
her allegations as to her destitute condition are not justified, especially in view of the fact that
since about November 1948 only one of the minor children has continued to live with her and
that the other children are living happily and contentedly with defendant at his ranch; that
plaintiff is a well, strong and able-bodied woman in her early forties, capable of earning a
good living for herself, but has made no effort to find employment and has continued to live
in idleness at the hotel at Fallon; that his own resources have been materially diminished
through loss of livestock and feeding expense because of the unprecedented storms and
cold weather of the past winter and that further heavy losses are anticipated; that the
present values of the property are considerably less than $150,000.
through loss of livestock and feeding expense because of the unprecedented storms and cold
weather of the past winter and that further heavy losses are anticipated; that the present values
of the property are considerably less than $150,000.
Expressions contained in the findings and in the arguments of counsel indicate that the
marriage between the parties was found to be a common-law marriage. The oral arguments
further indicate that the appeal on the merits will involve appellant's contention (despite the
said minor children, the issue of said marriage) that there was no common-law marriage and
that the trial court erroneously found that there was a common-law marriage; also that the
entire property of the parties at the time of the divorce, with the exception of respondent's one
fourth interest in the Kallenbach Ranch, comprised rents, issues, profits, increase,
substitutions, etc., of appellant's original properties at the time of the marriage, including
some 4,000 sheep and 100 cattle and that the court erroneously found the property to be the
community property of the parties. The record on appeal comprises between 500 and 600
pages. Property awarded to the plaintiff aggregated some $110,000. Presentation of the points
of law above indicated, as well probably as others of importance, will involve a careful
preparation and presentation. The earnestness with which counsel presented their respective
views at the oral argument of the present motion indicates their conscientious adherence to
their respective contentions and the earnestness and ability with which the appeal on the
merits will be presented. We think the facts sufficiently show the necessities of the
respondent and the ability of the appellant to pay. The $3,600 taken by plaintiff at the time of
filing her divorce was fully within the knowledge of the trial court at the time of the entry of
its final judgment. These parties lived together for some seventeen years during which time
seven children were born to the respondent and during which time she apparently lived upon
the ranch property as the wife of a rancher and stockraiser.
a rancher and stockraiser. This connotes much to those familiar with such situations, although
at this stage of the proceedings we have not read the record nor concerned ourselves with the
merits of the appeal.
After due consideration
1
we have considered the following allowances to be proper and
they are hereby ordered to be paid forthwith, namely, the payment by appellant of
respondent's accrued hotel bill in the sum of $465.41, which shall be payable directly to
Grand Hotel, Fallon, Nevada; the sum of $1,000 to respondent's attorneys as attorney fees on
this appeal; the sum of $250 per month for the support of respondent and the minor children
in her custody, commencing on or before ten days after the entry of this order and payable on
the corresponding day on each month thereafter until the determination of this appeal on the
merits, or the further order of this court.
Any determination as to whether such monthly payments shall be chargeable against the
$10,000 item as allowed by the district court may abide the determination of the appeal on the
merits.
The order and bond staying execution may otherwise remain in effect. Each party will pay
his own costs on the present motion.
Horsey, C. J., did not participate in the foregoing.
On Motion to Vacate Former Order For Allowances
Pending Appeal, Etc.
June 6, 1949. 206 P.2d 753.
1. Divorce.
Order granting allowances for support pending appeal from divorce decree would be
vacated on marriage to another of female plaintiff, who would be directed to return
any payments made after such marriage.
____________________

1
See McLaughlin v. McLaughlin, 48 Nev. 153, 228 P. 305, 238 P. 402, 240 P. 1115; Cunningham v.
Cunningham, 60 Nev. 191, 192, 102 P.2d 94, 105 P.2d 398; Wallman v. Wallman, 48 Nev. 239, 229 P. 1, 35
A.L.R. 1096; Afriat v. Afriat, 61 Nev. 321, 117 P.2d 83, 119 P.2d 883; Dirks v. Dirks, 61 Nev. 267, 125 P.2d
305; etc.
female plaintiff, who would be directed to return any payments made after such
marriage.
2. Divorce.
Where pending appeal from divorce decree the appellant paid respondent's accrued
hotel bill and respondent's attorneys the sum of $1,000 allowed as attorneys' fees on
appeal, and it appeared that female respondent had married another and had borne a
child of which such other person was the father, any order with respect to the
restoration of such sums would be held in abeyance pending disposition of the cause on
the merits.
3. Divorce.
Where female respondent had married another pending appeal from divorce decree
and appellant moved that allowances theretofore made to respondent be set aside and
that respondent be compelled to return payments received by her after her second
marriage, the respondent's motion for an additional allowance of attorney fees to defend
the motion would be denied.
Appeal from First Judicial District Court, Churchill County; Frank McNamee, Judge
Presiding.
On motion to vacate former order for allowances pending appeal, etc. Motion granted in
part and denied in part.
A.L. Haight, of Fallon, and Kearney & Adams, of Reno, for Appellant.
Griswold & Vargas, of Reno, and James W. Johnson, Jr., of Fallon, for Respondent.
OPINION
Per Curiam:
On March 14, 1949 we granted the motion of the respondent wife for certain allowances
pending appeal. As to the facts and circumstances under which the order was made and as to
the extent of the order, see our former opinion, 66 Nev. 67, 203 P.2d 614.
1. The appellant husband now asks this court to vacate that order, to relieve the
appellant from payment of any further allowances, to order the return to appellant of the
sums heretofore paid to respondent under that order, and for a further order changing the
custody of the minor child or children now residing with respondent and placing the
custody of such child or children with appellant.
vacate that order, to relieve the appellant from payment of any further allowances, to order
the return to appellant of the sums heretofore paid to respondent under that order, and for a
further order changing the custody of the minor child or children now residing with
respondent and placing the custody of such child or children with appellant. The grounds of
the motion are that the best interests of the child or children would be best served thereby,
that respondent is not a fit or proper person to have such custody, that the allowances ordered
by our former order were obtained by fraud, fraudulent representations and by the
withholding of and concealment of facts which, if presented, would have defeated
respondent's application for allowances, thus constituting a fraud upon this court. The facts
most strongly relied upon in support of the motion were the marriage of respondent to one
David Erquiga on March 16, 1949, two days after our order for allowances of March 14, and
six days after the presentation of the argument and motion for allowances. The certificate of
said marriage of March 16, 1949 was recorded April 8, 1949. On April 1, 1949 a child was
born to respondent, which child, as shown by the birth certificate, was named David Erquiga,
Jr. The father is recited to be David Erquiga. The child was accordingly conceived about July
1948. On December 22, 1948 respondent filed her motion and affidavit for allowances, and
on March 10, 1949 filed a supplemental affidavit for allowances. During the oral argument
counsel for respondent conceded that she would be entitled to no allowances for her support
after her marriage to David Erquiga, March 16, 1949, and that our former order for the
payment of $250 a month should be vacated so far as the same applied to any sums payable
after March 16, 1949. As to such payment, the order is accordingly vacated. It was not made
clear whether any of the $250 monthly payments were made after March 16, 1949. If any
such were made, it is ordered that the same be refunded by respondent to appellant.
were made, it is ordered that the same be refunded by respondent to appellant.
Only one of the minor children of the parties continues to reside with respondent, namely,
a daughter Margaret, going on thirteen years of age. We do not believe that a sufficient
showing has been made to justify a change in her custody.
Pursuant to our order of March 14, 1949, appellant paid respondent's accrued hotel bill in
the sum of $465.41 and paid respondent's attorneys the sum of $1,000 allowed by us as
attorney fees on the appeal. Appellant strongly urges that these sums should be refunded,
first, because of respondent's misconduct and, secondly, because she was not in necessitous
circumstances, the concealment of which facts was a fraud upon this court. It is further urged
that we should probably not have made our order of March 14 had we then known that
respondent, eight months pregnant with Erquiga's child, had planned her immediate marriage
to him.
2, 3. The motion is not without merit. Respondent has made no attempt either to deny or to
explain her relations with Erquiga or his paternity of her child. Indeed the marriage certificate
and the birth certificate (copies of which are annexed as exhibits to the affidavit supporting
appellant's motions) speak for themselves. In support of the claim that it now appears (and
would have appeared at the time of our former order but for the alleged fraudulent
concealment) that respondent's present husband is financially able to finance respondent's
defense of the appeal, appellant has filed an affidavit executed by one of his attorneys on
information and belief, to the effect that David Erquiga conveyed certain real property in
1946 for approximately $13,000, of which $6,000 was paid in cash and $7,000 was payable
in installments and secured by a deed of trust under which Erquiga received $2,200 in
November 1948, and that a balance of $3,000 and interest is still due thereunder, and that he
is possessed of other means or securities of considerable value.
under, and that he is possessed of other means or securities of considerable value. Such
affidavit was filed at the time of the argument of the pending motions and respondent has
made no request for an opportunity to file any affidavits in response.
Counsel for both parties appear to agree that the entire matter lies within the sound
discretion of this court. Indeed, ever since Lake v. Lake, 17 Nev. 230, 30 P. 878 (see cases
cited in footnote to our opinion on the former motion), such has been the rule in this state. We
are not called upon to condone respondent's relations with Erquiga. Statements made in the
course of the oral argument indicate that the nature of that relationship enters largely into the
600 page record on appeal. We have not read that record, as the merits of the appeal are not
before us. Her concealment of the facts that at the time she filed her affidavit in support of her
motion for allowances she was in the eighth month of her pregnancy is more serious. That
such situation, if it had been brought to our knowledge at the time of the arguments of March
14, 1949 on the motion for allowances would have affected the extent of our order, does not,
however, necessarily follow. Since that argument and since our order of March 14, appellant
has filed his opening brief on appeal. It is a document comprising ninety-seven typewritten
pages. Its index (which is all we have read) indicates that many important and serious points
are raised and we are loath to order the return of any part of the $1,000 attorney fee heretofore
allowed for the defense of the appeal. We feel the more satisfied in reaching this conclusion
for the reason that upon the submission of the appeal upon merits we shall be in position, and
the right is hereby reserved, to remedy any inequities that may be shown. Nor are we satisfied
(despite the failure of respondent to deny the allegations made by appellant's attorney on
information and belief, as to the financial ability of respondent's present husband, and
despite her failure to request an opportunity to deny the same) that the affidavit as to
Erquiga's ability to pay is sufficient to counteract the effect of respondent's affidavit as to
her necessitous circumstances.
belief, as to the financial ability of respondent's present husband, and despite her failure to
request an opportunity to deny the same) that the affidavit as to Erquiga's ability to pay is
sufficient to counteract the effect of respondent's affidavit as to her necessitous
circumstances.
On the presentation of respondent's motion to vacate the former orders, etc., appellant
applied, on shortened notice, for an order for an additional allowance of $250 attorney fees to
defend the present motion. We are not inclined to make an additional allowance for the
purpose.
It is accordingly ordered as follows:
1. Appellant's motion for an order changing the custody of the minor child or children
remaining with respondent is denied.
2. Appellant's motion to vacate the order for the payment to respondent of $250 per month
for her support is granted, as to any future payments.
3. If any of such $250 monthly payments, or any part thereof, has been paid to respondent
subsequently to March 16, 1949, the date of her marriage to Erquiga, such payment is ordered
refunded to appellant.
4. Appellant's motion for an order for the return of the $1,000 attorney fee paid under our
former order and his motion for the return of the sum of $465.41 for respondent's hotel bill
are denied.
5. Respondent's motion for the allowance of an additional $250 attorney fee for the
opposition of appellant's motion is denied.
6. No allowance of costs or fees will be made on the present motions.
Horsey, C. J., did not participate.
____________
66 Nev. 78, 78 (1949) Caye v. Caye
OLIVIA J. CAYE, Appellant, v. GERARD H.
CAYE, Respondent.
On Motion For Costs And Attorney Fees On Appeal
No. 3573
March 19, 1949. 203 P.2d 1013.
1. Divorce.
On wife's appeal from decree of divorce where, subsequent to wife's motion for an allowance of
expenses on appeal, the undertaking was secured and the wife had filed transcript and other record no
allowance would be made for such items.
2. Divorce.
The supreme court has power to grant allowances to wife on appeal from divorce decree in favor of
husband.
3. Divorce.
The record showed that wife's appeal from divorce decree was in good faith and that wife was entitled
to allowance of $150 attorney's fee.
Action for divorce by Gerard H. Caye against Olivia J. Caye, who filed a cross-complaint
for a decree of separate maintenance. From a judgment for plaintiff, the defendant appeals.
On appellant's motion for an allowance to her of an attorney's fee and other expenses. Order
in accordance with opinion.
Clel Georgetta, of Reno, for Appellant.
Joseph P. Haller, of Reno, for Respondent.
OPINION
Per Curiam:
1. The lower court granted the plaintiff husband a decree of divorce on the ground of three
years' separation of the parties as against the wife's defense and against her cross-complaint
for a decree of separate maintenance.
66 Nev. 78, 79 (1949) Caye v. Caye
maintenance. She has appealed and has filed her record on appeal herein and now asks this
court for an allowance to her of an attorney fee of $500, cost of undertaking on appeal in the
sum of $10, transcript in the sum of $201.60, and other record on appeal in the sum of
$54.90. The undertaking on appeal has already been secured by the appellant wife and she has
been able to file herein the transcript and other record. Accordingly no allowance may be
made for such items. Cunningham v. Cunningham. 60 Nev. 191, 200, 102 P.2d 94, 105 P.2d
398; Afriat v. Afriat, 61 Nev. 321, 328, 117 P.2d 83, 119 P.2d 883.
2. The law as to the granting of allowances on appeal is well settled in this state and need
not be discussed.
1
The cases cited in the footnote and others in this state cover a variety of
situations, and include cases in which the unsuccessful husband in the court below was the
appellant as well as those in which the unsuccessful wife appealed.
In the instant case the wife resided in New York and the trial court allowed her $242.75
travel expense, $20 expense enroute to Reno, $280 for four weeks living expense at Reno, a
preliminary attorney fee of $150, and an additional attorney fee of $350, court costs in the
sum of $10, $50 for her return expense to New York, and permanent alimony in the sum of
$60 per week. This alimony has been paid to date. The items noted were allowed for the
defense of the action in the district court, which court denied appellant's motion for further
allowances to perfect her appeal.
Appellant's affidavit supporting her motion shows
____________________

1
Lake v. Lake, 16 Nev. 363; Buehler v. Buehler, 38 Nev. 500, 151 P. 44; Hannah v. Hannah, 57 Nev. 239,
62 P.2d 696; Wallman v. Wallman, 48 Nev. 239, 229 P.1, 35 A.L.R. 1096; Herrick v. Herrick, 54 Nev. 323, 15
P.2d 681; Jeffers v. Jeffers, 55 Nev. 69, 25 P.2d 556; Lamb v. Lamb, 55 Nev. 437, 38 P.2d 659; that the
decree was made September Cunningham v. Cunningham, 60 Nev. 191, 192, 102 P.2d 94, 105 P.2d 398;
Dirks v. Dirks, 61 Nev. 267, 125 P.2d 305; McLaughlin v. McLaughlin, 48 Nev. 153, 228 P. 305, 238 P.402,
240 P. 1115; Ormachea v. Ormachea, 66 Nev. 67, 203 P.2d 614.
66 Nev. 78, 80 (1949) Caye v. Caye
that the decree was made September 18, 1948, and motion for new trial was denied October
28, 1948. Appellant perfected her appeal November 9, 1948, and filed her record on appeal
herein January 26, 1949. In addition to the $60 weekly alimony being paid by respondent,
appellant earns $40 a week, which gives her an aggregate income of something over $400 a
month. She alleges that she is without suitable clothes and has been compelled to borrow
money for living expenses and is indebted in the sum of $600, which she has been unable to
repay; that respondent is well able to defray her expense of appeal; that she has no money to
pay her attorney.
Respondent's affidavit recites that he is employed by the city engineer's office at Reno and
that his take home pay after deductions is $225 per month and that to augment his income he
works at night as a bartender on Friday and Saturday nights, for which he receives additional
income of $73.75 per month, making his aggregate income from all sources $298.75 per
month, and that he has no other source of income or other property; that he formerly owned
certain stocks and bonds which he was compelled to sell whose proceeds were used in part to
comply with orders of allowances made by the district court; that he had a $690 balance of
such proceeds which, however, are now under attachment by appellant in a separate cause of
action. The oral argument indicated that this action was for recovery of unpaid balances due
under a prior agreement entered into by the parties.
Both parties to the proceeding made reference to the transcript on appeal, a material part of
which is devoted to an examination of a stock interest which appellant claimed to be owned
by respondent in Caye Construction Company, a corporation of $3,000,000 assets and
possessing at various recent times a working capital of $1,000,000. Respondent's affidavit
recites that he has no interest in this corporation.
66 Nev. 78, 81 (1949) Caye v. Caye
no interest in this corporation. It is apparent, however, that during a considerable portion of
the marital life of the parties they lived in a comparative affluence on part of the earnings of
this corporation, the majority of whose stock was owned by respondent's father.
Respondent contends that appellant's appeal is prosecuted in spite and for the purpose of
harassing respondent; that there is a presumption of the validity of the judgment and of the
proper exercise by the trial court of its discretion in the granting of a divorce on the grounds
of three years' separation without cohabitation, and that in consideration of the appellant's
alleged superior financial position, no sums whatsoever should be allowed.
The learned district judge in announcing his decision said:
I am compelled to do something in this case that I think all judges in the State refrain
from doing except in extraordinary cases. The defendant in this case rests on her complaint
for the charges alleged therein and asks for separate maintenance.
During the many years of my practice, and the few years that I have acted as judge, I have
learned that a separate maintenance decree never settles anything, and while the plaintiff and
the defendant are the paramount individuals involved in this matter, society should have a
voice, and even so far as the plaintiff and defendant are concerned they are apparently not
fully conversant with the future prospects. I think a decree of separate maintenance would
lead the plaintiff to complete degradation. A decree of separate maintenance in favor of the
defendant would prevent her in the near or any future time until the decree was set aside from
finding another home for herself where the happiness which she has not had may be found. At
the present time I think I can appreciate the feeling of the defendant in her prayer for relief,
but it would be a menace to both of the parties as well as a serious menace to good
society.
66 Nev. 78, 82 (1949) Caye v. Caye
to both of the parties as well as a serious menace to good society. For that reason, I feel
constrained to render a divorce and the Court will decree a divorce to plaintiff on the ground
of three years separation, and the Court will direct that plaintiff pay to defendant for her
support and maintenance the sum of Sixty Dollars a week during her lifetime or until she
shall remarry, and the Court feels that the plaintiff should pay the costs of this action.
* * * (to the plaintiff) This Court is still in session, Mr. Caye, and the Court couldn't help
but observe your smirking countenance at the Court's decision. I have nothing to do with your
future life but if your future life is going to be what your parents probably anticipate, there is
going to be quite a change in your moral conduct. I am frank to say that if your wife had
asked for a decree of divorce I would have given it to her on nearly any grounds in her
complaint. The exhibits that you were responsible for having come into this Court disclose
that your conduct toward your wife has been reprehensible. Outwardly, it may have met the
military requirements but otherwise it was reprehensible. I wouldn't have said that but your
smirking smile when you looked up indicated to me that you had the same contempt for this
Court that you have had for your marital obligations.
3. The exhibits referred to by the court were numerous love letters to respondent by
another woman, and the reprehensible conduct referred to by the court had apparent
reference to the respondent's frank admissions that he had fallen in love with another woman
and desired a divorce. It is further indicated that appellant contends that the period of
separation relied upon by respondent for his cause of action was caused solely by his services
in the armed forces, a situation beyond the control of either of the parties and one which is
contended not to be within the contemplation of the statute. Under these circumstances we
cannot say that the appeal is not taken in good faith.
66 Nev. 78, 83 (1949) Caye v. Caye
It is ordered that respondent pay to appellant's attorney the sum of $150, and appellant's
motion is granted pro tanto. Respondent requests that the attachment of the sum of $690
hereinabove referred to be ordered released by this court to such extent as to permit him to
pay the attorney fee out of such attached fund, but it is evident that the jurisdiction of this
court has not been properly invoked for the purpose of interfering in any way in the
attachment suit. The $60 weekly alimony payments being made under the judgment of the
district court are in no way affected by this order. The court will feel free to make other and
additional orders in its disposition of the appeal on the merits. The appeal will stand in
abeyance until payment by respondent of the attorney fee herein ordered, unless the appellant
shall voluntarily elect to proceed despite any failure of compliance. Each party will pay its
own costs on this motion.
Badt, and Eather, JJ., concur.
Horsey, C. J., did not participate in the foregoing.
On the Merits
November 2, 1949. 211 P.2d 252.
1. Divorce.
Under statute authorizing granting of divorce when spouses lived separate and
apart for three consecutive years without cohabitation, separation may result from
refusal to live together and need not result from mutual consent, nor need separation be
made with intent to bring marriage to an end by divorce; and the parties have
separated within statute whenever marital association is severed or when spouses
intend to live apart because of their mutual purpose to do so, or because one spouse,
with or without acquiescence of the other, intends to disrupt marriage. St.1931, c. 111,
as amended by St.1939, c. 23.
2. Divorce.
Fact that one spouse has been obliged by business or compelled by government
because of military duty, or for some other reason, to live apart from spouse for
required period, does not entitle him to divorce under statute authorizing granting of
divorce when spouses lived separate and apart for three consecutive years without
cohabitation.
66 Nev. 78, 84 (1949) Caye v. Caye
for three consecutive years without cohabitation. St.1931, c. 111, as amended by
St.1939, c. 23.
3. Divorce.
Conclusions reached as to facts by trial court in divorce suit on conflicting testimony
are conclusive upon supreme court on appeal.
4. Divorce.
On appeal from divorce decree, supreme court must presume that fact findings of
trial court support decree.
5. Divorce.
Finding of trial court in divorce suit that parties lived separate and apart without
cohabitation for more than three consecutive years immediately preceding filing of
complaint implied a voluntary separation by at least one party, and supported divorce
decree, as against contention that findings of fact were deficient because there was no
finding as to whether separation was voluntary or whether parties lived separately for
one of the necessary three years because husband was called away for military duty.
St.1931, c. 111, as amended by St.1939, c. 23.
6. Divorce.
Divorce decree would not be reversed on appeal on ground that findings were
insufficient to support decree, where appellant on motion to modify findings of fact and
conclusions of law did not call such deficiency to attention of trial court as required by
statute. N.C.L.1931-1941 Supp. sec. 9385.65.
7. Affidavits, Depositions, Trial, Witnesses.
Except in special proceedings, provided for by statute or rule of court, relevant and
material facts, if established by testimony, must be proved by testimony given in open
court, or by deposition taken, so that other party can cross-examine witness, and an ex
parte affidavit is not competent as evidence in a trial upon merits of cause if offered to
prove existence of fact it recites.
Where incompetent evidence is admitted in a trial of cause by court sitting without a
jury, reversal of judgment is only warranted when it is apparent from record that
competent evidence was insufficient to support judgment, or when it is affirmatively
shown that improper evidence affected result.
9. Divorce.
In divorce suit tried to court without a jury, admission over defendant's proper
objection of ex parte affidavit to show that plaintiff no longer owned certain stock was
not prejudicial to defendant where facts set out in affidavit were testified to by plaintiff,
and plaintiff's testimony was not discredited by cross-examination or contradicted by
other competent evidence.
66 Nev. 78, 85 (1949) Caye v. Caye
10. Divorce.
Evidence sustained decree granting husband a divorce on ground that parties had
lived separate and apart for more than three consecutive years without cohabitation
immediately preceding commencement of action. St.1931, c. 111, as amended, by
St.1939, c. 23.
Action for divorce by Gerard H. Caye against Olivia J. Caye, who filed a cross-complaint
for a decree of separate maintenance. From a judgment for plaintiff, the defendant appeals.
Affirmed.
Clel Georgetta and Howard W. Babcock, both of Reno, for Appellant.
Joseph P. Haller, of Reno, for Respondent.
OPINION
Respondent instituted suit against appellant in the District Court of the Second Judicial
District, in and for the County of Washoe, to obtain a decree dissolving the bonds of
matrimony. Appellant has appealed from an adverse judgment and from an order denying her
motion for a new trial.
The respondent, in his complaint filed on March 8, 1948, alleged that since the marriage
plaintiff and defendant have lived separate and apart for more than three consecutive years,
without cohabitation, immediately preceding the commencement of this action. This the
appellant denied in her answer.
The evidence establishes that respondent and appellant were married in Detroit, Michigan,
on the 30th day of April 1937, and lived together for a period of approximately six years.
66 Nev. 78, 86 (1949) Caye v. Caye
of April 1937, and lived together for a period of approximately six years. During the major
part of that time the husband was employed by the Caye Construction Company. The husband
entered the United States Navy in June 1943, and respondent and appellant continued to live
together as man and wife until August 1943, when the husband was sent to an over-seas
station in Trinidad. After he left the United States, the appellant returned to reside at the
home of the parties, and remained there until November 1943, when she moved to
Washington, D. C., to work for the United States government.
After the respondent had been stationed in Trinidad for approximately a year, he returned
to the United States in August of 1944, and was at that time given leave for twenty to thirty
days. After this leave the husband was sent to the Naval Station at Norfolk, Virginia, for
re-assignment, and while there received orders transferring him to duty in the Pacific area.
This occurred early in the month of November 1944. Before reporting to his new assignment
in the Pacific area, the husband was given several days' leave. It is uncontradicted that while
stationed at Norfolk, Virginia, the respondent wrote his wife a letter stating that he desired a
divorce. The testimony of the parties is in conflict as to whether his attitude persisted after his
re-assignment and during the few days' leave before reporting for duty in the Pacific area.
Briefly, it was the testimony of the respondent that he continued to impress upon the
appellant his desire for a divorce, and that certain preliminary arrangements were made with a
firm of attorneys. It was the appellant's testimony that prior to his departure for the Pacific,
the parties were reconciled and that, in fact, no separation occurred until the respondent's
return from the Pacific area about a year later.
The appellant has assigned as error the granting of a decree of divorce upon the ground
alleged in respondent's complaint.
66 Nev. 78, 87 (1949) Caye v. Caye
a decree of divorce upon the ground alleged in respondent's complaint. The appellant
maintains that for the period of one year, while respondent was on duty with the United States
Navy in the Pacific, the parties were compelled to live apart. This statement of the assignment
assumes that the respondent and appellant had not separated prior to respondent's departure
for the Pacific area. But if it was unnecessary under the statute to prove a separation occurred
prior to respondent's reporting for duty in the Pacific area, we can dispose of the question by
ascertaining whether the prescribed period elapsed. Thus for the first time in this court it has
become necessary to construe the statute providing for this ground for divorce, as to that
point.
Appellant's interpretation of the statute providing for this cause for divorce (State.1931, c.
111, p. 180, as amended, Stats.1939, c. 23, p. 16) is that to make out a case under the statute
the plaintiff, in addition to the other proof required by the statute, must show that the
separation of the parties resulted from the voluntary act of the parties, with the intent to bring
to an end the marital relation. Appellant proposes this construction of the statute as preferable
to the view that the trial judge may grant a divorce upon this ground when a showing has
been made that the parties lived apart for the prescribed length of time, and without taking
into consideration the cause of their so living apart. In arguing the question, the parties, and
we at all times, assume that the prescribed period of three consecutive years has elapsed, and
that the trial judge has exercised his discretion in determining whether the best interests of
society and the parties will be served by granting a divorce.
1, 2. We agree with the appellant's interpretation of the statute to the effect that to make
out a case for a divorce upon this ground the separation must result from the voluntary and
intentional act of at least one of the parties.
66 Nev. 78, 88 (1949) Caye v. Caye
of the parties. The separation may result from the refusal of one of the parties to live with the
other, although such separation need not necessarily be with the intention to bring the
marriage to an end by a divorce.
The parties must live apart for the prescribed period as the consequence of a separation.
The fact that one of the parties has been obliged by his business, or compelled by his
government because of military duty, or, for some other reason, to live apart from his spouse
for the required period of time does not entitle him to any relief under our statute. This
circumstance does not result in the separation of the parties as we define it, unless such
business or obligation to the government is undertaken with the avowed purpose of separating
from a spouse. The verb to separate means to part from each other. The status exists
whenever the marital association is severed or when married persons intend to live apart
because of their mutual purpose to do so, or because one of the parties, with or without the
acquiescence of the other, intends to disrupt the marital relationship. One does not separate
from his spouse, in the sense of disrupting the marriage, by being called to duty in the armed
forces, or by being called away on business.
We think this interpretation conforms with what has heretofore been expressed by this
court as the purpose and policy of the statute. Herrick v. Herrick, 55 Nev. 59, 25 P.2d 378;
George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983. It is also in accord with the only
statement on the point which we have been able to find in a sister jurisdiction having a
similar statute. Otis v. Bahan, 209 La. 1082, 26 So. 2d 146, 166 A.L.R. 494.
This result has been implied by this court in the case of George v. George, supra, 56 Nev.
at page 17, 41 P.2d at page 1060, 97 A.L.R. 983, where the court approved the following
statement: It is evident that the conjugal life and the family life of the parties are
permanently disrupted. There is no inclination for and no prospect of a reconciliation.
66 Nev. 78, 89 (1949) Caye v. Caye
prospect of a reconciliation. Nothing is left of the marriage relation but the legal tie.' It is
manifest that there can be no reconciliation unless there has been disagreement and
separation.
Appellant argues that if we accept her view of the statute, on the point just discussed, then
respondent's complaint should be dismissed. It is asserted that the proof shows that for the
first year respondent and appellant were living apart, the respondent was away from home on
duty with the United States Navy. The respondent contends, on the other hand, that the
evidence shows that in the brief interval he was at home on leave, and before his departure for
duty in the South Pacific, the parties separated, that respondent made it clear to appellant
that he intended and contemplated a divorce.
3. If this is simply a matter of resolving a conflict of evidence on a fact, material to the
issues, we would refer the appellant to the rule that conclusions reached as to the facts by the
trial court upon conflicting testimony are conclusive upon this court on appeal. Cut-Rate
Drug Co. v. Scott & Gilbert Co., 54 Nev. 407, 20 P.2d 651; Ward v. Scheeline Banking &
Trust Co., 54 Nev. 442, 22 P.2d 358; Butzbach v. Siri et al., 53 Nev. 453, P.2d 533. The
appellant insists, however, that on her motion to modify the findings of fact and conclusions
of law, the trial court was specifically requested to make a finding as to whether there was
voluntary separation in the year 1944, or whether the parties lived apart for a year as a result
of respondent's being called away on duty.
We have already noted that the respondent stated his cause of action in the words of the
statute and in her answer the appellant denied this allegation. The finding of the court on this
point reads: That since said marriage plaintiff and defendant have, for a period of more than
three consecutive years immediately preceding the filing of the complaint, which is dated
March 8, 1948, lived separate and apart without cohabitation. This Court finds that said
plaintiff and defendant have not cohabited, nor have they lived together under the same
roof, nor have they been together as husband and wife, for a period of more than three
consecutive years immediately preceding the filing of the plaintiff's complaint, namely,
since the month of November, 1944; and that there is no advantage in continuing this
marriage any further; that nothing is left of the marriage relationship but the legal ties.
66 Nev. 78, 90 (1949) Caye v. Caye
Court finds that said plaintiff and defendant have not cohabited, nor have they lived together
under the same roof, nor have they been together as husband and wife, for a period of more
than three consecutive years immediately preceding the filing of the plaintiff's complaint,
namely, since the month of November, 1944; and that there is no advantage in continuing this
marriage any further; that nothing is left of the marriage relationship but the legal ties. The
conduct of the parties, by living separate and apart for more than three consecutive years
without cohabitation, has made it impossible for them to live together in happiness, and the
best interest of the parties and the state is promoted by granting of a divorce. The family life
of the parties has been permanently disrupted; there is no prospect of a reconciliation; and
there is no probability of their living together in such manner as to be to their best interest and
the best interest of society.
When a party to an action proposes that the court make a finding on a fact such as this, his
request must be made in the manner prescribed by section 9385.65, 1931-1941 Supp. In this
instance the appellant protests that the findings are insufficient to support the judgment and
decree, because it nowhere appears that the court made a finding that there was a voluntary
separation in 1944. Yet we have examined the appellant's proposed findings and proposed
modification of respondent's findings and cannot find where in accordance with the statute
such a deficiency, if any there is, was called to the court's attention. It is true the appellant
noticed a motion to modify findings of fact and therein in at least sixteen instances averred
the findings were deficient. In not one of these instances has the appellant suggested that the
findings were such as would not support a judgment because of omission of a material fact. In
every instance, on the contrary, the appellant alleges the findings are deficient because the
court failed to find facts favorable to appellant's case.
4-6. It is the duty of this court to presume that the findings of the lower court have been
such as will support the judgment.
66 Nev. 78, 91 (1949) Caye v. Caye
findings of the lower court have been such as will support the judgment. Edwards v. Jones, 49
Nev. 342, 246 P. 688. We are satisfied that the findings do support the judgment. To be
consistent with our expression above that to separate means more than to live apart, we must
hold that in the finding of the court that for a period of more than three consecutive years
immediately preceding the filing of the complaint, which is dated March 8, 1948, lived
separate and apart without cohabitation, implies a voluntary act of at least one of the parties.
We find further support of this view in the expression, the conduct of the parties living
separate and apart, and in this expression, There is no prospect of reconciliation, We hold,
therefore that not only did the appellant fail to make this point to the trial court in the manner
prescribed by statute, but that in fact there is language which clearly indicates the court made
a finding that the parties separated prior to respondent's departure for the Pacific area on
military duty.
The appellant's next assignment of error is that the court was in error in refusing
appellant's prayer for separate maintenance in view of respondent's failure to sustain his cause
of action. Appellant admits that this assignment is based upon the assumption that the
respondent failed to establish his cause of action. Thus, we have already disposed of this
assignment of error.
The next assignment is that the court committed error in admitting into evidence, over
proper objection, the affidavit of Edna C. Tourjee, for the purpose of establishing that the
respondent was no longer the owner of certain stock. This affidavit had been introduced on a
motion for allowances, attorney's fees and costs, and was, therefore, an ex parte affidavit.
Issues had been joined by the pleadings as to whether the respondent was, or was not, the
owner of said stock.
7. We agree with the appellant that an ex parte affidavit is not competent as evidence if it
is offered for the purpose of proving the existence of the facts it recites, in a trial upon the
merits of the cause.
66 Nev. 78, 92 (1949) Caye v. Caye
in a trial upon the merits of the cause. It is, as appellant states, a basic rule of evidence that
except in special proceedings, provided for by statute or rule of the court, relevant and
material facts, if established by testimony, must be proved by testimony given in open court,
or by deposition taken so that in any event the other party is accorded the opportunity to
cross-examine the witness. Judd v. Letts, 158 Cal. 359, 111 P. 12, 41 L.R.A.,N.S., 156;
Graham et ux. v. Smart et al., 42 Wash. 205, 84 P. 824; 2 C.J.S., affidavits, sec. 28 (2), page
985.
8, 9. The appellant has not satisfied us, however, that this error had such a prejudicial
effect as to require reversal. Where incompetent evidence is admitted in a trial of the cause by
a court sitting without a jury, reversal is only warranted when it is apparent from the record
that competent evidence was insufficient to support the judgment, or, when it is affirmatively
shown that the improper evidence affected the result. Rehling v. Brainard, 38 Nev. 16, 144 P.
167, Ann.Cas.1917C, 656.
The appellant has not pointed out to us, and an examination of the transcript does not
reveal, the manner in which this affidavit affected the result. The trial court, in ruling on the
objection, pointed out that everything set forth in the affidavit was already in evidence, except
one fact which we do not find material to the issue. We go further and state that the facts set
out in the affidavit were testified to by the respondent, and his testimony was not discredited
by cross-examination or contradicted by other competent evidence.
10. A review of all of the briefs and the oral arguments in the appeal make it clear that the
entire matter (concluding, as we have, that in order to start the three year statute running,
there must be a separation in the sense of a disruption of the marriage relationship through the
intentional act of at least one of the parties) turns upon the factual determination of what
occurred at and about the time of the separation. Despite the bitter and perhaps justified
denunciation by appellant of respondent's testimony, it does not lie with us to say that
the trial court should have accepted the evidence adduced by appellant.
66 Nev. 78, 93 (1949) Caye v. Caye
bitter and perhaps justified denunciation by appellant of respondent's testimony, it does not lie
with us to say that the trial court should have accepted the evidence adduced by appellant. In
this connection appellant contends that the trial court did not necessarily accept the testimony
of respondent, for the reason that the trial court's theory of the law was that three years'
separation authorized a decree of divorce in the court's discretion despite the fact that the first
year's separation of such three years was without any intention on the part of either party to
disrupt their relationship. We do not, however, find this contention borne out by the record.
As all assignments of error have been dealt with specifically or covered by this court in
this opinion, the order should be that the judgment and decree, and the order denying the new
trial be affirmed, and that the respondent pay all costs not heretofore ordered paid by him.
Eather, J., being absent on account of illness, the Governor designated Hon. Taylor H.
Wines, Judge of the Fourth Judicial District, to sit in his place.
____________
66 Nev. 94, 94 (1949) Benson v. Benson
ANNA M. BENSON, Appellant, v. CLIFFORD G.
BENSON, Respondent.
No. 3554
March 25, 1949. 204 P.2d 316.
1. Divorce.
Supreme court has right to make an order directing payment of attorneys' fees on appeal in a divorce
case.
2. Divorce.
Motion for allowances of attorneys' fees in divorce action can apply only prospectively and be made
to cover future expenses.
3. Divorce.
Respective financial conditions of parties and husband's ability will be considered in fixing amount of
attorney's allowances for appeal in a divorce case.
4. Divorce.
Where husband received a salary of $55 per week and was paying $70 a month for support of wife
and minor child, wife's attorneys would be entitled to $150 for services rendered after filing of motion for
allowances which consisted of preparation for, and presentation of argument on appeal from judgment for
husband in divorce action.
5. Continuance.
Withdrawal on eve of trial of attorney for one of parties to a divorce action, leaving such party
unprepared for trial, is not ipso facto a ground for continuance, particularly where withdrawal is
unexplained, where no diligence in inducing counsel to remain in case or in securing new counsel is
disclosed, and where it is not shown that party is free from fault in matter.
6. Continuance.
When new counsel is engaged just prior to trial date, alleged lack of preparation on part of such
counsel is not necessarily a ground for continuance, particularly where party has been guilty of
negligence in employing new counsel or where such recently retained counsel could have prepared
himself for trial by exercise of reasonable diligence, but where he could not thus have prepared himself,
cause may in a proper case be continued.
7. Continuance.
In event of a party being represented by two or more attorneys, fact that part of them had been
retained only a short time before trial furnishes no ground for a continuance where remaining attorneys
had been connected with case for some time, or where, in fact, case is well prepared and recently retained
attorneys have a thorough understanding of issues thereof, and continuance will not be granted to permit
a party to secure additional counsel to assist attorney already retained where party has failed to
exercise reasonable diligence in employing such additional counsel.
where party has failed to exercise reasonable diligence in employing such additional counsel.
8. Appeal and Error. Continuance.
A motion for continuance is addressed to discretion of trial court, and its action in granting or denying
a motion will not be reversed except for most potent reasons.
9. Continuance.
Trial court did not abuse discretion in denying motion for continuance in divorce action on ground
that counsel had not become acquainted with case, where necessity of moving party of engaging new
counsel a day before trial was due entirely to her own negligence and lack of diligence.
10. Husband and Wife.
Judgment of separate maintenance does not bar granting of a decree of divorce on ground of three
years separation. N.C.L. 1931-1941 Supp., sec. 9467.06.
11. Divorce.
Husband was entitled to divorce from wife on ground of three years separation, where parties lived
separate and apart for over five years and there was no evidence to justify finding that a reconciliation
between them would be possible, notwithstanding pendency of litigation between parties in another state
during major portion of separation and fact that husband served in armed forces for about six months
during that time. N.C.L.1931-1941 Supp., sec. 9467.06.
Action by Clifford G. Benson against Anna M. Benson for divorce. From a judgment for
the plaintiff, defendant appeals. Affirmed.
Carville & Carville, of Reno, for Appellant.
Withers, Sanford & Horgan, of Reno, for Respondent.
OPINION
The respondent obtained a decree of divorce from the appellant in the Second judicial
district court of Washoe County, and an appeal therefrom has been taken to this court.
court. The matter is now before the court on this appeal and, by stipulation of counsel, upon
the motion of the wife for an allowance of $500 fees for her counsel in presenting the appeal.
1. The right of this court to make an order directing payment of attorneys' fees upon appeal
is well established. Lake v. Lake, 17 Nev. 230, 238, 30 P. 878; Buehler v. Buehler, 38 Nev.
500, 151 P. 44.
2. Motion for allowance in this case was not filed until after appellant had perfected her
appeal, paid her filing fees, filed her record on appeal and filed her opening and closing
briefs. The law is well-settled that motion for allowances can only apply prospectively and be
made to cover future expenses. Cunningham v. Cunningham, 1 Nev. 93, 116 P.2d 188;
Fleming v. Fleming, 58 Nev. 179, 72 P.2d 1110.
3. The respective financial conditions of the parties and the husband's ability will be
considered in fixing the amount of such allowances. Baker v. Baker, 59 Nev. 163, 87 P.2d
800, 96 P.2d 200; Afriat v. Afriat, 61 Nev. 321, 329, 117 P.2d 83, 119 P.2d 883; Dirks v.
Dirks, 61 Nev. 267, 125 P.2d 305.
4. In the present case it appears that the respondent receives a salary of approximately $55
per week and has been paying $70 a month for the support and maintenance of the appellant
and the minor child of the parties. In view of the fact that the only services rendered after the
filing of motion for allowances, comprised the preparation for and presentation of argument
on appeal, and considering the respective financial conditions of the parties, the sum of $150
attorneys' fees seems reasonable and is ordered to be paid forthwith by the respondent to the
appellant or to her counsel, Messrs. Carville and Carville.
The facts in this case show that the respondent's complaint was filed on April 6, 1948;
summons was personally served on the appellant in East Hartford, Connecticut on the 13th
day of April 1948. The appellant, through her attorneys, Pike, McLaughlin and Furrh, filed a
general demurrer on May 4, 194S, which was in due course overruled and appellant given
fifteen days to answer.
Furrh, filed a general demurrer on May 4, 1948, which was in due course overruled and
appellant given fifteen days to answer. On May 24, 1948, appellant filed her answer,
consisting of a general denial of the allegations of the complaint. On June 1, 1948, the case
was set for trial on the 2d day of July 1948. The appellant had employed eastern counsel, one
Isadore M. Waxman, who had duly authorized Messrs. Pike, McLaughlin and Furrh to act as
Reno counsel for her. It appears that Isadore M. Waxman notified Mr. McLaughlin on May
26th that the appellant had changed her mind with reference to the divorce proceeding and
desired no further representation; that Messrs. Pike, McLaughlin and Furrh received no
further information in the matter until the 25th day of June 1948 when they were advised by
an attorney, one Walter F. Foley of Connecticut, that the appellant would arrive in Reno on
June 30, 1948 and would contact the clerk of the court for further advice. Appellant arrived in
Reno on June 30, 1948 and on July 1, contacted E. H. Beemer, clerk of the court, and Messrs.
Pike, McLaughlin and Furrh.
The appellant testified she had consulted an attorney in Connecticut named Mrs.
Hemmelstein, who advised her to withdraw from the Nevada proceeding. Whereupon, she
had advised Attorney Waxman of her desire and had been informed that she could not
withdraw as she had already submitted herself to the jurisdiction of the Nevada courts; that as
a result of this conversation, she discharged Attorney Waxman and told him in the latter part
of May that she did not want him or Mr. McLaughlin to represent her and wished to withdraw
from the action; that on July 1, about 4 o'clock in the afternoon, the appellant employed
Messrs. Carville and Carville to present her case; that the case came on for trial at 2 p. m. on
July 2, 1948, at which time Messrs. Carville and Carville presented a motion for continuance.
The court sustained the respondent's objection to a continuance and proceeded to trial.
The evidence further shows that the parties had not lived or cohabited together since
November 1942, and that beginning in 1943 and continuing until shortly before the
plaintiff came to Reno in 194S, divorce litigation was pending between them in the courts
of Connecticut; and that during 1943 or 1944 the respondent had served for
approximately six months in the United States Navy.
lived or cohabited together since November 1942, and that beginning in 1943 and continuing
until shortly before the plaintiff came to Reno in 1948, divorce litigation was pending
between them in the courts of Connecticut; and that during 1943 or 1944 the respondent had
served for approximately six months in the United States Navy.
The appellant based her appeal upon the ground:
1. That the court abused its discretion in refusing to grant a continuance.
2. That the court abused its discretion in granting a divorce on the ground of three years
separation
1
where litigation had been pending between the parties in Connecticut during the
major portion of their separation.
It is admitted by both parties that the granting of a continuance is within the discretion of
the court and that this discretion is subject to review.
5-7. The general rule under facts such as exist in the case at bar is:
The withdrawal, on the eve of trial, of the attorney for one of the parties to an action,
leaving such party unprepared for trial, is not ipso facto a ground for continuance, particularly
where the withdrawal is unexplained, where no diligence in inducing counsel to remain in the
case or in securing new counsel is disclosed, and where it is not shown that the party is free
from fault in the matter.
Likewise when new counsel is engaged just prior to the trial date, the alleged lack of
preparation on the part of such counsel is not necessarily a ground for continuance,
particularly where the party has been guilty of negligence, such as inexcusable delay in
employing the new counsel, or where such recently retained counsel could have prepared
himself for trial by the exercise of reasonable diligence; but where he could not thus have
prepared himself, the cause may, in a proper case, be continued.
____________________

1
Divorce from the bonds of matrimony may be obtained, in addition to the causes now provided by law and
subject to the same procedure and requirements for the following cause:
When the husband and wife have lived separate and apart for three consecutive years without cohabitation
the court may, in its discretion, grant an absolute decree of divorce at the suit of either party. N.C.L.1931-1941
Supp., sec. 9467.06.
could have prepared himself for trial by the exercise of reasonable diligence; but where he
could not thus have prepared himself, the cause may, in a proper case, be continued. In the
event of a party being represented by two or more attorneys the fact that part of them had
been retained only a short time before the trial furnishes no ground for a continuance where
the remaining attorneys have been connected with the case for some time, or where, in fact,
the case is well prepared and the recently retained attorneys have a thorough understanding of
the issues thereof. A continuance will not be granted to permit a party to secure additional
counsel to assist the attorney already retained where the party has failed to exercise
reasonable diligence in employing such additional counsel.
8. Likewise, this court in the case of Neven v. Neven, 38 Nev. 541, 546, 148 P. 354, 356,
154 P. 78, Ann.Cas. 1918B, 1083, said:
It is needless for us to cite authority in support of a proposition that has become almost
universally recognized: That a motion for continuance is addressed to the discretion of the
court. The reason for this rule is manifest. The trial court is apprised of all the circumstances
concerning the case, and the previous proceedings, and has before it the parties, from whose
conduct and utterance it has opportunity to judge as to whether or not the motion is made in
good faith, or as to whether or not deception and fraud are being perpetrated on the court with
a view to delaying the proceedings. It is for these reasons that courts of review generally have
taken a position that the action of the trial court, in granting or denying a motion for
continuance, will not be reversed, except for the most potent reasons.
The rule has been laid down by some courts (and, in our judgment, advisedly so) that a
greater degree of liberality should be accorded in matters of continuances in divorce cases
than in any other civil actions; the reason for this being that the public, as well as the parties
to the action, are interested in the result of the suit.
parties to the action, are interested in the result of the suit. However this may be, we concur in
the expression of the Supreme Court of California, in the case of Barnes v. Barnes, 95 Cal.
171, 30 P. 298, 16 L.R.A. 660, that a defendant must be held to the exercise of good faith and
diligence, and cannot be heard to complain if the failure to present his defense results from an
attempt to subordinate the business of the court to his own business engagements and
convenience.
So also the California District Court of Appeal in the Case of Berger v. Mantle, 18
Cal.App.2d 245, 63 P.2d 335, 337, said:
It cannot be set down as a rule that litigants may in all cases demand a continuance by
engaging new counsel just prior to the trial date. If such were the rule one or the other of the
litigants could indefinitely avoid trial of the issues by making late substitutions. Such a
procedure would result in the obstruction of justice.
9. It is clear from the facts that no blame can attach to Messrs. Pike, McLaughlin and Furrh
for their withdrawal from the case which was brought about by the appellant's direct request.
Likewise, it is clear that no blame can attach to Messrs. Carville & Carville, whose services
were not engaged by the appellant until the day before the trial of the case. It is equally clear
that the necessity the appellant found of engaging new counsel the day before the trial was
due entirely to her own negligence and lack of diligence. This being true, the court did not
abuse its discretion in refusing to grant the continuance.
10. This court has held on numerous occasions that an actual judgment of separate
maintenance did not necessarily bar the granting of a decree of divorce upon the ground of
three years separation. George v. George, 56 Nev. 12, 41 P.2d 1059, 97 A.L.R. 983; Herrick
v. Herrick, 55 Nev. 59, 25 P.2d 378; Lagemann v. Lagemann, 65 Nev. 373, 196 P.2d 1018.
11. In the Lagemann case, supra, this court stated that the real question involved was not
so much which party was at fault or why the parties were living separate and apart, but
rather the question of whether or not there was any reason to believe that the parties
would be able to live together in a manner to the best interest of themselves and society.
that the real question involved was not so much which party was at fault or why the parties
were living separate and apart, but rather the question of whether or not there was any reason
to believe that the parties would be able to live together in a manner to the best interest of
themselves and society. In this case, the parties have lived separate and apart for over five
years and there is no evidence to justify the finding that a reconciliation between them would
be possible. In fact, during the great bulk of their separation they were definitely at
loggerheads and involved in litigation. Such prolonged litigation could only result in intense
animosity. If a decree of separate maintenance does not prevent a divorce on the ground of
three years separation, it cannot be consistently argued that the mere pendency of litigation
during the major portion of the time the parties had lived separate and apart, would prevent
the granting of a decree.
Nor can this court see any reason to hold that where the parties had lived separate and
apart for more than five years, the fact that the plaintiff served in the armed forces for
approximately six months of that time, could be any reasonable grounds for denying a divorce
on the ground of three years separation.
It is the judgment of this court that no error was committed by the lower court, and that
there was no abuse of discretion in either the order or judgment under attack.
The judgment of the lower court and the order of the lower court denying appellant's
motion for a new trial, are affirmed.
Badt, J. concurs.
Horsey, C. J., did not participate in this case.
____________
66 Nev. 102, 102 (1949) State v. Varga
THE STATE OF NEVADA Respondent, v. LASZLO
VARGA, Appellant.
No. 3548
April 29, 1949. 205 P.2d 803.
1. Criminal Law.
In prosecution for murder where physician testified that he examined body at about 1 a.m. on March
23, 1948, and that deceased could have been dead about six or seven hours, jury were justified in
rejecting defendant's contention that defendant could not have committed the crime since he had departed
from the town where killing was committed prior to 6 p. m. on March 22, 1948.
2. Homicide.
Evidence sustained conviction of murder in the first degree.
3. Criminal Law.
Conviction will not be reversed upon the ground that the verdict is contrary to the evidence if there is
any substantial evidence to support it.
4. Criminal Law.
In prosecution for murder where absence of fingerprints was injected into the case by counsel for
defendant, defendant was in no position to complain of remarks on the subject by the district attorney and
was not prejudiced by such remarks and such remarks did not constitute perjury or false or fraudulent
testimony, particularly in view of court's instruction that statements made by counsel in argument were
not evidence.
5. Jury.
In prosecution for homicide contention that defendant was denied a fair and impartial trial by reason
of a prejudiced jury and unqualified jurors was not sustained by the record.
6. Criminal Law.
In prosecution for murder, where record disclosed that one juror did not serve because he was
excused by defendant on fourth peremptory challenge and that another juror could have been removed by
defendant on a peremptory challenge, the defendant could not claim any prejudicial error in respect of
such jurors.
7. Jury.
In prosecution for murder evidence showed that juror who had expressed an unqualified opinion as to
the guilt or innocence of defendant was not a disqualified juror.
8. Criminal Law.
Where there was no attempt on part of the district attorney to inject into the trial or prove in any
manner the commission of any other crime by defendant and statements volunteered by witness
concerning such matter were immediately stricken out by the court upon objection by counsel
for defendant and the jury were admonished in each instance to regard such
statement, no prejudice to the defendant was shown.
66 Nev. 102, 103 (1949) State v. Varga
out by the court upon objection by counsel for defendant and the jury were admonished in each instance
to regard such statement, no prejudice to the defendant was shown.
9. Criminal Law.
In prosecution for murder where there was a complete absence of proof that any force, duress or
promises of leniency were made by any one to induce defendant to confess and the record showed that
before defendant made one statement, he was expressly warned by district attorney and deputy sheriff
that any and all statements made by him would be used against him, no error was committed by the court
in admitting defendant's statements in evidence.
10. Criminal Law.
In prosecution for murder no error was committed by the trial judge in permitting physician to testify
that skull fracture could have been caused by rolling pin or in admitting rolling pin in evidence where a
proper foundation was laid in each instance.
11. Homicide.
In prosecution for murder, trial court under the evidence properly refused to give requested
instructions on manslaughter or to submit to jury form of verdict for manslaughter.
12. Criminal Law.
In prosecution for homicide, denial of defendant's motion for a new trial was within sound discretion
of the court and was justified in view of the evidence produced at the trial. N.C.L. 1929, sec. 11032, as
amended.
13. Criminal Law.
In prosecution for homicide, evidence sustained allegation that crime had been committed in Wells,
Elko County, Nevada, as charged in indictment.
Appeal from the Fourth Judicial District Court, Elko County; Taylor H. Wines, Judge.
Laszlo Varga was convicted of murder in the first degree and from such conviction and
sentence of death and from an order denying motion for arrest of judgment and an order
denying motion for a new trial, he appeals. Affirmed with directions.
George F. Wright, of Elko, for Appellant.
Alan Bible, Attorney General, Geo. P. Annand and Homer Mooney, Deputy Attorneys
General and Alexander Puccinelli, District Attorney of Elko, for Respondent.
66 Nev. 102, 104 (1949) State v. Varga
OPINION
By the Court, Brown, District Judge:
The appeal in this case is from a judgment and sentence of the district court based upon a
verdict rendered by a jury finding the defendant Laszlo Varga guilty of murder in the first
degree, and fixing the penalty at death, and from an order denying a motion for an arrest of
judgment, and an order denying a motion for a new trial, made by the district court. The
defendant is the appellant, and the plaintiff is the respondent in this court. The parties will be
referred to herein as plaintiff and defendant, as in the lower court.
The errors relied upon by the defendant in his appeal are as follows:
1. The verdict is not supported by the evidence.
2. The defendant has been convicted through perjury and fraud, thus taking life without
due process of law.
3. The district attorney, in his closing argument to the jury, committed misconduct by
bringing in fraudulent and false evidence.
4. The defendant was denied a fair and impartial trial by reason of a prejudiced jury and
unqualified jurors, thus violating the Constitution of the United States and of the State of
Nevada.
5. Misconduct at the trial by injection of another crime.
6. Error in admitting the defendant's confession and alleged statement to another jail
inmate.
7. The court erred in admission of improper evidence over objection.
8. Errors of instruction.
9. Failure to submit to the jury the issue of voluntary or involuntary manslaughter.
10. The motion in arrest of judgment should have been granted.
66 Nev. 102, 105 (1949) State v. Varga
11. The motion for new trial should have been granted.
12. The state did not establish the venue of the crime.
A careful study of the transcript filed in this appeal discloses the following facts which
have been summarized therefrom:
On the evening of March 21, 1948, between the hours of 7:30 and 8 o'clock p. m., the
defendant entered the Eagle Service Station, in the city of Elko, State of Nevada, which is
situated on the west end of Elko, and asked one Vern Ishmael, who is the constable of Elko
Township, whether or not there was a Lutheran Councilor in Elko. The defendant was
advised that there was none, and that the nearest one available would probably be in Salt Lake
City. He was then directed to the bus depot, and the defendant left the service station.
That same night, sometime between 9 and 10 o'clock p. m., the defendant went to the
Commercial Hotel, in Elko, Nevada, and registered, under the name of Laszlo Varga.
Previously, the defendant had been directed to the Commercial Hotel by one Father
Brockman, the Episcopal minister, who had called the hotel and consented that the charge for
the room be placed on the account of the Episcopal Church.
The next day, March 22, 1948, the defendant left the Commercial Hotel about 12 o'clock
noon, and went to the east end of town on Highway 40, where he started hitch-hiking. He was
picked up by Mr. Aubrey Roberts, who lives at the Tower Service Station, about fifteen miles
east of Elko, on Highway 40. While they were traveling together from Elko to the Tower
Service Station, the defendant volunteered the information that he had been hitch-hiking for
thirty-one days, having started in New York and traveled to California and back. When they
arrived at the Tower Service Station, the defendant walked east on Highway 40 about two
hundred or three hundred yards to a point commonly known in Elko as the North Fork
Bridge.
66 Nev. 102, 106 (1949) State v. Varga
defendant walked east on Highway 40 about two hundred or three hundred yards to a point
commonly known in Elko as the North Fork Bridge. He had been there for a short time when
Henry Gravil, an employee of Bing Crosby, came along in a pickup truck, traveling east on
Highway 40, destined for Twin Falls, Idaho. Mr. Gravil picked up the defendant at the North
Fork Bridge and continued east on Highway 40. While they were riding, the defendant
inquired if there was a minister in Wells, Nevada, and Mr. Gravil answered that he did not
know. Upon arriving at Wells, Nevada, Mr. Gravil advised the defendant that he was going to
eat, and the defendant stated that he could not eat because he didn't have any money,
whereupon Mr. Gravil volunteered to buy the lunch for the defendant, and they went to the
Trail 40 Cafe in Wells, Nevada. After they had finished their lunch, Mr. Gravil continued on
his way towards Twin Falls, and the defendant was seen walking from the Trail 40 Cafe
towards Highway 40.
Shortly thereafter and on the same day, the defendant, Laszlo Varga, entered the Supp
Motor Company, which is located at the extreme east end of Wells, Nevada, on Highway 40,
and in a conversation with one Howard Prince, an employee of this company, the defendant
asked about a Council of Churches, stating to Mr. Prince that he had come from New York
City and was working his way with the aid and assistance of these Councils. Mr. Prince
told the defendant that he knew nothing about the Council of Churches, but that he did know
the Mornings, who were interested in all church work, and that they could probably inform
the defendant. Mr. Prince then proceeded to give specific instructions to the defendant as to
how he could go to the Morning residence from the Supp Motor Company. In giving the
defendant these instructions, he specifically told the defendant that when he reached the block
where the Morning residence was located, the Morning home would be the third house after
the apartment house on the corner.
66 Nev. 102, 107 (1949) State v. Varga
Morning home would be the third house after the apartment house on the corner. The
defendant then left the Supp Motor Company.
Between 2:30 and 3 o'clock p. m., on the afternoon of March 22, 1948, the defendant
entered the yard of one Pauline Weeks, who resided immediately next door to Mr. and Mrs.
Morning, her house being the third house in the block if you counted the apartment house as
number one. Upon entering the yard the defendant asked where the Presbyterian minister
lived, and Mrs. Weeks advised him that the minister lived next door, whereupon the
defendant left the Weeks' yard and proceeded to the Morning residence.
The record shows that Mrs. Morning was seen alive at about 2 o'clock p. m., that
afternoon, by an employee of the Standard Oil Company, who was delivering stove oil at the
Morning residence.
At about 4:50 o'clock p. m., on the same day, the defendant was again seen at the Supp
Motor Company, where he cashed a check made payable to himself, and signed by Mrs.
Morning, and endorsed Laszlo Varga. At about 5 o'clock p.m., on the same day, the
defendant was seen at the Trail 40 Cafe in Wells, Nevada, where he contacted the proprietor,
Ola Dalmonego, and advised her that he had no money, but desired to cash a check,
whereupon he exhibited a check to her, made payable to Laszlo Varga, and signed Billie
Rhae Morning. When the defendant was told that she did not cash a personal check, the
defendant stated, A minister's check is always good, and he further advised that the minister
had a telephone. Mrs. Dalmonego checked the telephone directory, but found no listing for
the Mornings, whereupon she again refused to cash the check, and the defendant left the cafe.
About fifteen minutes later the defendant returned to the Trail 40 Cafe and this time he
engaged one Dottie Supp in conversation, and advised her that he could not get the check
cashed, and that he had numerous pennies in his pocket, but nobody wanted them, and
inquired as to bus schedules, and advised the said Dottie Supp that he was going to return
to Elko to get work.
66 Nev. 102, 108 (1949) State v. Varga
in his pocket, but nobody wanted them, and inquired as to bus schedules, and advised the said
Dottie Supp that he was going to return to Elko to get work. Miss Supp suggested that he go
to the post office, believing that they might take the pennies in exchange for coins of larger
denominations.
Sometime between 5:15 and 5:30 o'clock p. m., of March 22, 1948, the defendant entered
the post office in Wells, Nevada, and attempted to cash the check. When he was advised that
they did not cash personal checks, the defendant said, This isn't exactly a personal check, it
is a minister's check. There was some additional conversation between the defendant and the
postmaster, and during the course of this conversation the defendant said: This check isn't
any good, I go up and demand she give me money for it. Thereafter, at approximately 5:20
o'clock p. m., the defendant entered the Southern Pacific ticket office in Wells, Nevada. He
wanted to purchase a ticket to Elko, but was advised that the next train was scheduled to
arrive at 11:45 o'clock a. m., the next day, on March 23, 1948, whereupon the defendant tried
to cash the check, and was again advised by the agent, William Toombs, that he could not
cash personal checks. The defendant then left the railroad station and was last seen walking
toward Highway 40 in Wells, Nevada.
Mr. Wylie James Emerson, an employee of Insured Driver Way Service of Salt Lake City,
Utah, who was driving a United States government fire truck to Sacramento, California, saw
the defendant thumbing a ride at the west end of Wells, Nevada, while he was driving west on
Highway 40. Mr. Emerson picked up the defendant, and together they proceeded to drive in
the direction of Elko, Nevada. While they were traveling between Wells and Elko, the
defendant volunteered the information that he was hitch-hiking from New York, and that he
had been on the road nineteen days, and was going to San Francisco, California. Mr. Emerson
stated that they passed through Elko to a point about five miles west of Elko, where they
ran out of gasoline.
66 Nev. 102, 109 (1949) State v. Varga
stated that they passed through Elko to a point about five miles west of Elko, where they ran
out of gasoline. The defendant volunteered to return to Elko and buy some gasoline. Shortly
thereafter the defendant obtained a ride in a pickup truck which was traveling east on
Highway 40.
Between 6:45 and 7:15 o'clock p. m., on March 22, 1948, the defendant again entered the
Commercial Hotel, and the clerk on duty was the same clerk who had been on duty the
previous night, when the defendant first registered into the hotel. The defendant advised the
clerk that he desired to pay for his room and cash a check, which check was on the minister's
wife in Wells. The clerk examined the check and noticed that it was made payable to Laszlo
Varga, and signed Billie Rhae Morning, whereupon he cashed the check. The defendant
further volunteered the information that he had run out of gasoline and wanted a taxi. Shortly
thereafter the defendant left the hotel in company with a cab driver.
At about 7 o'clock p.m., on the same day, the defendant and the cab driver went to the
Eagle Service Station, which is the same service station that the defendant visited the
previous night, when he inquired as to the whereabouts of a Lutheran Church, and the
attendant on duty was the same man, Vern Ishmael, who had been on duty the night before.
When asked what he was doing back in Elko, the defendant stated that he was going west.
The defendant purchased five gallons of gasoline, and then left in the taxi, traveling on
Highway 40 in a westerly direction. They reached the location where the fire truck had run
out of gasoline, put the gasoline into the truck, and the defendant and Mr. Emerson then
continued on to Carlin, Nevada, where they stopped at a service station on the highway. The
defendant and Mr. Emerson entered a coffee shop, which adjoins the service station, and
ordered pie and coffee. While they were in the coffee shop the defendant proceeded to
take out some small change from his pockets, consisting of some silver dollars and
forty-five pennies, which the defendant had changed into coins of larger denominations.
66 Nev. 102, 110 (1949) State v. Varga
were in the coffee shop the defendant proceeded to take out some small change from his
pockets, consisting of some silver dollars and forty-five pennies, which the defendant had
changed into coins of larger denominations. While they were in the coffee shop a westbound
Greyhound Bus marked San Francisco stopped at the station. The defendant inquired as to
its destination, and then purchased a ticket, and boarded and left on the bus. This was about
8:20 o'clock p. m.
At about midnight on March 22, 1948, Reverend Richard Morning, who had been absent
from Wells all day, returned to his home. Upon entering the home, he proceeded to the back
bedroom of his house, and discovered his wife dead. She was lying across the bed, near the
head of the bed, gagged and tied, hand and foot, by what appeared to be light cords. He also
found his child, then about eight months old, dressed in ordinary day clothes, and not
prepared for bed, although it was the general practice to have the child prepared for bed each
evening between the hours of 6 and 7 o'clock p. m.
Mr. Morning went to the telephone to summon help, and found that the phone wires had
been cut, whereupon he left the premises and called the police.
The investigation made by the police disclosed, among other things, that a jar which
Reverend Morning generally kept in a bureau drawer and used for small coins received from
Sunday school collections was broken and empty. It was further disclosed that a checkbook
was laying on the dresser in the same room where Mrs. Morning was found dead, with three
checks gone from the checkbook; that all dresser drawers had been opened and the contents
disturbed, and that a book of matches from Powell's Luxury Hotel, of Eureka, California, was
found in the dining room.
Mr. Homer Murphy, constable of Wells, Nevada, and Dr. Walter E. Kuhn, also of Wells,
Nevada, made an investigation at the home of Reverend Morning shortly after midnight, early
in the morning on March 23, 1948, and found Mrs.
66 Nev. 102, 111 (1949) State v. Varga
and found Mrs. Morning dead lying across the bed with both hands and both legs tied to the
rail of the bed with a towel and an electric light cord. Her knees were flexed, and tied to the
back of the bed rail. Her right shoulder was tied with a towel to the head of the bed, to the
rail, and another towel between the head of the bed and the body that was tied down to the
rail. Also, there was a towel that was twisted up, about as tight as a rope, and that was around
her neck, just as tight as it could be pulled, and that was tied down to the side of the bed to
the rail. There was a bloody towel over her head, and her head was lying in a pool of blood,
and there was some blood on the wall near the head of the bed. Her body was badly bruised
generally, and her head was very swollen, eyes closed, and about a four-inch skull fracture
with blood and brains oozing out of the fracture. Her mouth was very much pried open, with
a pair of women's panties stuffed very tightly in it. Dr. Kuhn stated that death was produced
by strangulation, suffocation, or skull fracture, and a combination of the three together.
The evidence also showed that there was a rolling pin found on the bed, about a foot from
Mrs. Morning's head.
The defendant was thereafter apprehended in California, and in subsequent statements
made by the defendant he disclosed, among other things, that he had resided in Eureka,
California, and that Eureka, California had been his last place of residence prior to coming to
Nevada.
The facts in this case disclose a most brutal slaying.
Counsel for the defendant lays great stress upon the testimony given by Dr. Kuhn in
reference to the length of time that Mrs. Morning had been dead prior to the time that she was
examined by the doctor, at approximately 1 o'clock a. m. on March 23, 1948. Dr. Kuhn
testified as follows:
Q. And did you ascertain when you made your examination at about 1:00 o'clock A.M.
the length of time that Mrs.
66 Nev. 102, 112 (1949) State v. Varga
examination at about 1:00 o'clock A.M. the length of time that Mrs. Morning had been dead?
A. In my opinion she could have been dead about six or seven hours.
1. Counsel for the defendant would have it appear that such testimony positively precludes
her death prior to 6 o'clock p. m., on the evening of March 22, 1948. We do not so interpret
his testimony, and feel that it does not justify such an inference. Dr. Kuhn merely gave an
opinion that Mrs. Morning could have been dead six or seven hours prior to 1 o'clock a. m. on
the morning of March 23, 1948. There is no testimony in the record which absolutely and
positively fixes the time of her death. Therefore, the contention made by counsel for the
defendant that the defendant could not have committed the crime, due to the fact that he
departed from Wells prior to 6 o'clock p. m., on March 22, 1948, is not well founded, and the
jury was fully justified in rejecting this contention.
Thereafter, and while the defendant was in the Elko County jail, he made three different
statements with reference to the death of Mrs. Morning.
On April 15, 1948, the defendant said to Deputy Sheriff Jess C. Harris, in the Elko County
jail, in a very low and controlled tone of voice: I kill Mrs. Morning, I did it. Later, on the
same day, after having been warned, by both the district attorney and the deputy sheriff, that
any statements made by the defendant would be used against him, he made the following
voluntary statement, in the presence of the deputy sheriff, the district attorney, and the
secretary of the district attorney, to-wit:
I, Laszlo Varga, tell all story about murder at Pastor's wife in Wells, to Mr. Puccinelli and
Mr. Harris and Mrs. Sadie Unamuno, in Jail Office in Court House in Elko, on 15 April,
1948. I tell story free and voluntarily. Nobody give me anything to make me tell, nobody beat
me or hurt me in this Jail, I tell story myself and I know that what I tell can be used against
me.
66 Nev. 102, 113 (1949) State v. Varga
myself and I know that what I tell can be used against me.
My name is Laszlo Varga, I born Hungary, August 26, 1929. I came to America
September 30, 1946. I came from New York City to Eureka, California about forty-five days
ago now. I leave Eureka, California with Joseph Barbas, at night time for twelve-thirty in a
bus station, I and Joseph for taxi company Number 727. I leave Eureka with Joseph because
Joseph come to see me, he want to take money which belong to Laseo Fish Company. I tell
him No.' He come back second night. Second night I work myself. I went out on street, I see
radio car and I tell them and then I go home. I go to work second night and I see one man who
tell me he give me better work than Laseo Fish Company. Then Joseph make me leave
Eureka. We leave Eureka in bus and go to San Francisco. Before I leave Eureka I go tell
police I leave Eureka because one time before F.B.I. tell me I have to tell when I leave. They
think I come from Russia. I no come from Russia, I just open my mouth big.
When Joseph and I leave Eureka we go San Francisco in bus. From San Francisco we
come on Highway Forty-Ninety-Nine. We come to Elko Sunday night about six o'clock, 21st
March.
Sunday night I get money from minister, and one room. Joseph he no stay this town, he
leave, tell me he say I go next town, you meet me Number Forty Road outside town.' Next
day, Monday, I get up about twelve o'clock, something like this, and I go on Number Forty
Road, hitch-hike. One man in truck give me ride fourteen mile other side Elko, other man
with cut lip give me another ride thirty-seven one-half mile. We get to other town. When we
get to this town this man who give me second ride buy me eat. He buy me three scrambled
egg, one cup coffee.
After I finish eat I go to this man's truck and get my overcoat, then I walk to Number
Forty Road and I meet Joseph on road Number Forty other side town.
66 Nev. 102, 114 (1949) State v. Varga
I meet Joseph on road Number Forty other side town. Joseph say Let's go back to town' I say,
What you want in town, you can't get job?' He say I don't want job.' I say I go myself.' He
say You go as far as my gun shot,' so I stop. I go back town with Joseph. When we go back
town we stop at service station. Joseph go in and he come back and see me and he ask
Where you get money in Elko last night?' I tell him Pastor of church.' Then he say Let's go
to town and see pastor.' So then we go to pastor's house. Together we murder the woman
dead.
In house of pastor we find pastor's wife. I show her ship of cards, we go inside house.
Pastor's wife want to make for me eat and I say Thank you I not hungry, I just eat in
restaurant.' She show me letter in German and ask if I read German. Joseph know German so
he read for change from German to English. Then Joseph tell me Take away his money.' So
Joseph hold the woman, I tie his hands, this was in bedroom. After I tie hands this woman,
Joseph ask questions, he speak good English, not just speaking, he read and writing
everything. She say she no have any money, but I got check.' He tell Where be the check?'
She say On desk, outside on the desk.' Desk is in room, front part of house on left side when
you go in. Joseph go get the check, I get lady's wallet, we take them to bedroom and I give
wallet to baby. Joseph ask pastor's wife how she writing name, she show and Joseph write
check. Then I say, Let him go, this woman, not bad enough, you take his money?' And he
say, No, hit him in head.' Joseph got gun in his pocket, shoot seven pieces. He got small belt
with ammunition, thirty-five pieces. He take gun and he make me hit lady on head with one
piece of wood. He hit him first, I hit him second. When I tie up pastor's wife hands Joseph put
something in her mouth so she no can talk, she can answer questions with head. After we hit
woman on head with wood, I put baby on bed and give him two pieces bread and mother's
wallet, then I leave the house.
66 Nev. 102, 115 (1949) State v. Varga
mother's wallet, then I leave the house. I have two checks.
Joseph stay in house with rubber gloves his hands. Joseph say he meet me in Michigan,
Detroit, so I go town and cash one check in service station. I go bus station, post office and
try to cash check but can't cash check. When Joseph stay in house and I come out I don't
know what to do, so I scared and I start to run, I don't know where I going. Joseph stay in
town in the house, what time he leave I don't know. I catch ride with one man in red truck. I
come to Elko, other side, we run out of gas. I come back Elko, cash one check at hotel, take
taxi, buy gas and take to truck. We put gas in truck and go another town.
In this other town I get bus, I go California. I want to go back to Eureka for work where I
can work. Where I work before have good time, these people like me. In this other town
where I catch bus I give lady in restaurant lots pennies which I get from pastor's house. Pastor
have money, about one hundred pieces. Joseph take this money from Pastor's house and give
it to me. I give these to lady in restaurant which I catch bus.
This paper has been read to me and it is the truth. Nobody forced me in any way to say
this. What I say is my own idea and I sign my name before A. L. Puccinelli and Mr. J. C.
Harris.
(Signed:) Laszlo Varga
Later, on May 4, 1948, the defendant dictated the following statement in the Elko county
jail, which was written down by Jerry Howard, who was a jail inmate, and after having been
read back to the defendant, Laszlo Varga, was signed by him, to-wit:
Your Honor; This is my true statement. My real name is Laszlo Varga. My born is
Hungarian, Birth place is Tet Hungary, August 26, 1929. Your Honor, can you inform me
why do I have to go to court too many times? Today is my twentieth day since I plead guilty
on my side, but I can not plea guilty for Joseph Barabas side.
66 Nev. 102, 116 (1949) State v. Varga
Barabas side. This is true, I and Joseph murdered the woman. Woman's name is Mrs.
Morning, on March 22, 1948. That's all of it I know. When I left the house, Joseph stayed in
the house after what happen I don't know. This is all of it I know. Signed, Laszlo Varga. Your
Honor, I told my lawyer I am guilty, but, he said he do not accept it, and I don't want a
lawyer. So sentence me now. Because, Joseph and I murder the woman. Your Honor, word
what I say are true. Eureka, California, Lascia Fish Company, I work there. March 18, 1948,
Joseph Barabas come to see me. When I was working in the kitchen. About 12:00 o'clock and
Joseph want to steal Lascio Fishes Company's money. He went in the office and wanted to
break the safe and I was in office, and I went to the other office, on the wall there was five
different kinds of guns, and I took one, and told Joseph to leave the safe alone and get out.
And, he got out. I got home one o'clock and I went back two o'clock and I see Joseph, and I
told I want to talk to you, and he came to my house and I told him to wash yourself and eat.
When he was eating I told the street police the description of Joseph and I went home. When I
went home, Joseph was not home and went to bed. Twenty minutes later Joseph came back.
This statement was later delivered to the deputy sheriff, Jess C. Harris, by the defendant,
Laszlo Varga.
While in the two statements made by the defendant he refers to a Joseph Barbas or
Barabas, as having been connected with the commission of the crime, it was undoubtedly
inconceivable to the jury how the defendant could have been in the town of Wells, Nevada,
for several hours with this other person and not be observed with him by anybody at any time,
especially in view of the fact that the defendant was seen alone and not with anyone else, by
so many people and at so many different places. It can well be when all of the circumstances
of the case are considered, that the defendant endeavored to relieve his own conscience by
sharing the perpetration of this atrocious act with some fictitious character.
66 Nev. 102, 117 (1949) State v. Varga
to relieve his own conscience by sharing the perpetration of this atrocious act with some
fictitious character.
2, 3. Upon a thorough analysis of all of the evidence, we feel that the verdict of the jury is
amply supported by the evidence. It is a well settled rule that no judgment of conviction will
be reversed upon the ground that the verdict is contrary to the evidence if there is any
substantial evidence to support it. State v. Hunter, 48 Nev. 358, 367, 232 P. 778, 235 P. 645;
State v. Boyle, 49 Nev. 386, 248 P. 48; State v. Watts, 53 Nev. 200, 296 P. 26; State v.
Soares, 53 Nev. 235, 296 P. 1081; State v. McNeil, 53 Nev. 428, 4 P.2d 889; State v. Squier,
56 Nev. 386, 54 P.2d 227.
Number II and Number III of the errors claimed by the defendant will be considered
together. It appears from the record that following the opening argument by the state, counsel
for the defendant stated, in substance, that the defendant could not have committed the crime
charged because had he done so he undoubtedly would have left his fingerprints on some
object in the Morning residence, and that there was a complete absence of proof by the state
of any fingerprints of the defendant. In the closing argument by the district attorney, he made
the following statements:
Before I go into the discussion of that, however, let's go to another factor, the absence of
finger prints. I can't explain that, unless I again refer to his statement. I can't answer why there
were no finger prints. I wish that I could, but I can't tell you, excepting that he tells me in this
statement, Joseph stay in house, with rubber gloves his hands.' Therefore, I will say that the
absence of finger prints, is because this buddy of Laszlo's stayed in the house and that he
operated with rubber gloves, and that that is why we couldn't find any finger prints of he and
Barbas.
The following discourse was then had between counsel and the court:
Mr. Wright: If the Court please, May I ask to have the record read where there is any
evidence that there are no finger prints found?
66 Nev. 102, 118 (1949) State v. Varga
the record read where there is any evidence that there are no finger prints found?
Mr. Puccinelli: That was argument put up to the jury that there was no finger prints in the
house, and I sought to answer it, if your Honor please.
The Court: I think the argument is fair, Mr. Wright.
Mr. Wright: I think he can say as far as there is no evidence, there are not finger prints.
There is evidence there is no finger prints, because there is no evidenceno finger prints
found.
Mr. Puccinelli: I will say we couldn't find a finger print.
Mr. Wright: If Mr. Puccinelli was to testify, he should have testified in order, and not
testify now, and I ask that the jurors be instructed to disregard the remarks of the District
Attorney as not evidence to this case.
The Court: Well, the distinction is very slight, Mr. Wright. You pointed out that there
was no proof of finger prints. The District Attorney confessed that he was unable to find
finger prints. Would you state your distinction again?
Mr. Wright: The evidence of the case has been closed for testimony, and the District
Attorney has been identified as being there. Now, he is trying to testify, he testifies. You can
not argue this case to the jury and he was not sworn and he has not testified, and the officer
has not stated whether there were or were not finger prints found, and therefore his statement
that I'll go further and say there were no fingerprintsthere is no evidence in the record of
that, if the Court please, and if Mr. Puccinelli decided to testify in the case, why didn't he
testify then as a witness, not now and say, I'll go further and say that we never found any
finger prints.' And, I wish the jury to be instructed to disregard it, any attempt of testimony by
Mr. Puccinelli as not evidence to this case, and also, if there is any evidence on the subject
that there are or are not finger prints, that it be read to the jury and let the jury be so
instructed.
66 Nev. 102, 119 (1949) State v. Varga
there is any evidence on the subject that there are or are not finger prints, that it be read to the
jury and let the jury be so instructed.
The Court: The request will be denied, but the jury will be instructed to disregard any
statement or confession by Mr. Puccinelli in open court that they were unable to find finger
prints.
Mr. Puccinelli: If the Court please, inference was made by Mr. Wright as to absence of
finger prints.
The Court: That is correct. He argued on that point, and you may answer.
Mr. Puccinelli continued his summation to the jury.
The Court: The Court now calls for any additional instructions made necessary by the
arguments.
Mr. Puccinelli: The State has none, if your Honor please.
Mr. Wright: If the Court please, I think that one phase is covered by the instructions. Let
me check. If the Court please, I would like to have one additional instruction.
The Court: Made necessary by the arguments?
Mr. Wright: Yes, if the Court please.
The Court: Do you submit it?
Mr. Wright: Yes, byI think probably in writing, or I can tell you without telling what it
is to the jury in private. I thinkmay I approach the Bench?
The Court: You may approach the Bench. (At this point, Mr. Wright and Mr. Puccinelli
approached the Bench.)
The Court: Gentlemen of the Jury, your are instructed that statements made by counsel in
argument is not evidence.
4. It is obvious to the court that the district attorney was replying to the argument of
counsel for the defendant, when for the first time the absence of fingerprints was injected into
the case by counsel for the defendant himself, and that reference was made by the district
attorney only to the absence of fingerprints of the defendant.
66 Nev. 102, 120 (1949) State v. Varga
defendant. Consequently, the defendant is in no position to complain, and was not prejudiced
by the remarks of the district attorney. Further, such remarks did not constitute perjury or
false or fraudulent testimony. In addition, at the request of counsel for the defendant the court
instructed the jury as follows:
You are instructed that statements made by counsel in argument is not evidence.
5. Specification of Error Number IV, that the defendant was denied a fair and impartial
trial by reason of a prejudiced jury and unqualified jurors, thus violating the Constitution of
the United States and of the State of Nevada, we find to be without any merit. The
examination of the jurors on voir dire consumes approximately two hundred pages of
transcribed testimony.
The prospective jurors were examined as to an unqualified opinion with reference to the
guilt or innocence of the defendant, and all stated positively that they had no definite or fixed
opinion, but would be guided by the evidence and the law given by the court.
6. The defendant specifically cites three jurors as being disqualified: Thos. H. Payne, Pete
Elia and Robert L. Kane. The record discloses that Payne did not serve, due to the fact that he
was excused by the defendant on the fourth pre-emptory challenge; that Pete Elia could have
been removed by the defendant exercising a pre-emptory challenge. Therefore, the defendant
can not claim any prejudicial error as to these two jurors.
With reference to the juror Robert L. Kane, although he stated that he had formed and
expressed an unqualified opinion as to the guilt or innocence of the defendant, upon a careful
analysis of his whole examination, the record disclosed the following:
Q. Is that a fixed opinion? A. I don't think so.
Q. In that connection, if you were selected as a juror, could you enter in and upon the
deliberations and be governed exclusively by the testimony as adduced in this courtroom
and the instructions as given to you by the Court? A. I would.
66 Nev. 102, 121 (1949) State v. Varga
and be governed exclusively by the testimony as adduced in this courtroom and the
instructions as given to you by the Court? A. I would.
Q. In other words, Mr. Kane, if selected as a juror, do you feel that you could act fairly
and impartially to both the State and the Defense? A. I think so.
Q. Do you know of any reason, Mr. Kane, why you would not make a fair and impartial
juror? A. No, I don't.
Q. If you did, you would so state? A. I would.
Again, under examination by defendant's counsel:
Q. And have you discussed the case with any of the officials connected with the County?
A. No, I haven't.
Q. Have you an opinion concerning the guilt or the innocence of the defendant? A. I have.
Q. Now, is that opinion a fixed opinion? A. No.
Q. And is it an opinion that would affect your deliberations in this case? A. No.
Q. Is it an opinion that would place a greater burden or proof on either one side or the
other? A. I don't think so.
Again under examination by the district attorney:
Q. Do you understand the meaning of unqualified opinion'? A. Well, I think I do.
Q. What do you understand as being an unqualified opinion? A. You have an unqualified
opinion, that would be one where you wouldn't be able to change your frame of mind. You
would have a set opinion.
Q. Therefore, your opinion is not set? A. No.
Q. You have an opinion? A. Yes, I have an opinion.
Q. Now, if you were selected as a juror in this case, would you set that opinion aside? A.
I would.
Q. And therefore, would you be governed exclusively by the testimony as testified to by
the witnesses during this case? A. I would.
Q. Therefore, whatever decision you might reach, would be the result exclusively of the
testimony and of the Court's instructions? A. I would.
66 Nev. 102, 122 (1949) State v. Varga
would be the result exclusively of the testimony and of the Court's instructions? A. I would.
Q. And what you previously heard or read would not in any way influence you in
reaching that decision? A. That is right.
7. In view of such testimony by Mr. Kane, the court is satisfied that he was not a
disqualified juror under the law. State v. Millain, 3 Nev. 409; State v. Williams, 28 Nev. 395,
82 P. 353.
Counsel for the defendant stated in his brief, but the jurors were all so bad that it was a
question to try to get along with Mr. Elia or to gamble on the next one.
If such were actually the case, counsel for the defendant had a remedy under the law,
which was to request a change of venue. This was not done.
Under Specification of Error Number V, the defendant contends misconduct at the trial by
injection of another crime. During the examination of Jess C. Harris as to the date when the
note was delivered to him by Laszlo Varga, which had been previously taken down in writing
by the jail inmate, Jerry Howard, he testified as follows:
It was on the day the defendant struck Wilbur Hines, the jailor.
Upon objection by counsel for the defendant, which was sustained, the answer was
stricken, and the court immediately instructed the jury to disregard the answer given by the
deputy sheriff. Again, the deputy sheriff testified with reference to a conversation with the
defendant, Laszlo Varga, on the morning of June 11, 1948, as follows:
It was immediately after the defendant had gotten out of his cell, and torn, what we call
the bull pen in general, that
Upon the objection by counsel for the defendant, the answer was stricken and the jury was
instructed to disregard the answer given by the witness.
The deputy sheriff then testified as follows: "Q.
66 Nev. 102, 123 (1949) State v. Varga
Q. You asked the defendant why he didn't behave himself. He said, Why should I behave
myself? I act crazy down here in jail all the time, then when you take me to Court I act crazy
again. I make everybody believe I am crazy. The judge will think I am crazy, and send me to a
hospital for two weeks, and then send me back to my country.'
8. There was no attempt on the part of the district attorney to inject into the trial, or prove
in any manner, the commission of any other crime. The remarks made by the deputy sheriff
were immediately stricken by the court, upon objection by counsel for the defendant, and the
jury were admonished, in each instance, to disregard the answers. Under such circumstances
the defendant could not have been prejudiced.
9. With reference to Specification of Error Number VI, that the trial court committed error
in admitting the defendant's confession and alleged statement to another jail inmate, the court
finds that all statements made by the defendant were entirely voluntary on his part, and that
there is a complete absence of proof that any force, duress, or promises of leniency were
made by anyone to induce the defendant to make such statements. Further, the record shows
that in one instance, before the defendant made the statement which was taken down by the
district attorney's secretary, the defendant was expressly warned by the district attorney and
deputy sheriff that any and all statements made by him would be used against him. Certainly,
under such circumstances no error was committed by the trial court in admitting the various
statements, made by the defendant in evidence.
Under Specification Number VII the defendant contends that the following evidence was
improperly admitted:
1. Dr. Kuhn was asked whether or not the skull fracture could have been caused by the
rolling pin. An objection was made by the defendant, which was overruled, and the doctor
answered in the affirmative.
66 Nev. 102, 124 (1949) State v. Varga
2. The rolling pin was admitted in evidence over objection by the defendant.
10. In both instances we find that a proper foundation was laid for the admission of such
evidence, and that no error was committed by the trial judge in admitting the same.
11. As to Specifications of Error Number VIII and IX, with reference to instructions on
manslaughter which were refused by the court, and a form of verdict for manslaughter, which
was also refused by the court, we find, after consideration of all of the evidence, that the
court, in its sound discretion, properly made such refusals on the ground that there was no
evidence to justify such instructions and such a verdict.
Specification Number X, in reference to the trial court's denial of the defendant's motion in
arrest of judgment, was waived by the defendant.
12. The denial of the motion for a new trial, under Specification Number X, deals with
Specifications of Error Numbered II and III, with reference to statements made by the district
attorney, in his closing argument, with reference to the absence of fingerprints of the
defendant, and is heretofore covered in this opinion. No proper showing having been made to
the trial court to justify the granting of a new trial, the order denying the same was within the
sound discretion of the court and thoroughly justified under all of the evidence produced at
the trial. State v. Bauer, 34 Nev. 305, 122 P. 76; section 11032, N.C.L.1929, as amended.
Under Specification Number XII, the defendant contends that the plaintiff did not establish
the venue of the crime as being in the county of Elko, State of Nevada.
13. When all of the evidence introduced at the trial is considered as a whole, there is ample
proof that the crime was committed in Wells, Elko County, Nevada. Deputy Sheriff Jess C.
Harris testified as follows:
Q. Will you state your name, please? A. Jess Harris.
66 Nev. 102, 125 (1949) State v. Varga
Q. And, where do you live, Mr. Harris? A. Elko, Nevada.
Q. And, do you occupy any official position? A. I do.
Q. And, what is that official position? A. Undersheriff, County of Elko.
Q. Were you such Undersheriff on the 22nd and 23rd days of March of this year? A. I
was.
Q. Now, I will ask you to state whether or not, in your capacity as Undersheriff of Elko
County, you were directed to proceed to Wells in the early morning of March 23rd, 1948? A.
I was.
Q. And, at whose direction? A. Sheriff Smith's.
Q. And, at what time did Sheriff Smith direct you to Wells? A. Approximately 12:45
A.M., March 23rd, 1948.
Q. And, did you proceed to Wells? A. The message was to pick the District Attorney up,
and proceed to Wells, which I did.
Q. And, did you, in company with myself, travel to Wells? A. We did.
Q. What time did you arrive in Wells? A. Approximately 1:30 A.M.
Q. On the morning of the 23rd? A. 1948.
Q. And where, if anyplace, did you go Mr. Harris? A. We drove to the Southern Pacific
Ticket Office.
Q. And, from there where did you go? A. We met Officer Murphy at the ticket office, and
then drove to the Morning home.
Q. And upon arrival at the Morning home, what, if anything, did you do? A. Upon
entering the doorway, Officer Murphy, together with Officer Dansie, took us to the back
bedroom on the right side of the house.
Q. And, upon arriving at this particular bedroom, what, if anything, did you note? A.
After stepping into the bedroom, I noticed a body lying on the bed.
Q. Do you knowstrike that. Did you know the identity of the body that was lying on the
bed? A. No, except that it was a female person.
66 Nev. 102, 126 (1949) State v. Varga
Q. Incidentally, Mr. Harris, did you know Mrs. Rhae Morning during her life time? A. No
sir.
Q. Or did you know Mr. Morning prior to that date? A. No, sir.
Q. At the time that you entered the bedroom that you mentioned, did you make an
examination of the bedroom and the body? A. Yes. There was an investigation made.
Such testimony considered with all of the other testimony of the other witnesses positively
places the scene of the crime in Wells, Elko County, Nevada.
We find that none of the errors assigned by the defendant justify a reversal of the judgment
and sentence and order denying the motion for a new trial made by the district court.
It is therefore ordered that the judgment of conviction and sentence of the death penalty
upon the defendant, Laszlo Varga, and the order denying the motion for a new trial, are
hereby affirmed, and the district court is hereby directed to issue a warrant of execution to
carry into effect the judgment and sentence heretofore entered, as provided by law.
Horsey, C. J., being absent on account of illness, the Governor commissioned Hon.
Merwyn H. Brown, District Judge of the Sixth Judicial District, to sit in his stead.
____________
66 Nev. 127, 127 (1949) State v. Butner
THE STATE OF NEVADA, Respondent, v. OWEN
CAUDLE BUTNER, Appellant.
No. 3545
May 10, 1949. 206 P.2d 253.
1. Homicide.
In prosecution for first-degree murder with defense of insanity, where jury found that defendant was
sane at the time of the homicide, supreme court had no duty to weigh the evidence, but its jurisdiction
was limited to questions of law alone. Const. art. 6, sec. 4.
2. Homicide.
In prosecution for first-degree murder, whether defendant was sane at the time of the homicide was
properly submitted to the jury.
3. Criminal Law.
Opinion evidence of a layman or nonexpert as to sanity or insanity of an accused before or after time
of alleged crime is admissible provided witness possesses adequate knowledge, based on an opportunity
to observe conduct of one whose mental condition is an issue.
4. Criminal Law.
Questions of qualifications of lay witnesses to testify on issue of insanity of accused, is left to the
discretion of the trial judge, and where testimony is admitted, unless it clearly appears that there has been
an abuse of that discretion, supreme court on appeal will not interfere.
5. Criminal Law.
Where witness is permitted to testify as to condition of an accused's mind at time previous and
subsequent to homicide from impressions made at time of observations on ground that it tends to show
his mental condition at time of homicide, allowing testimony of such condition existing at exact time of
homicide, when based on actual observation of accused at that time is proper.
6. Criminal Law.
A layman whose opportunity for observation of accused covered only a period of three to eight
minutes immediately before, during and immediately after shooting of deceased, when layman was in a
highly precarious condition because of danger to his own personal safety, was properly permitted, in
exercise of trial court's discretion, to express an opinion of the sanity of accused at time of the shooting.
7. Homicide.
Evidence of intoxication of accused at time of homicide was insufficient to dispel element of
premeditation, required for murder in the first degree, so as to justify supreme court in reducing degree of
crime from murder of the first degree to murder in the second degree.
8. Homicide.
Where defendant's use of intoxications before shooting was to create in him sufficient courage to
commit the crime which had been in his mind for more than three months before its occurrence,
intoxication was of no avail to mitigate the degree of the crime from first-degree murder to that of the
second degree.
9. Criminal Law.
Where defense witness on direct examination testified as to accused's mental condition,
cross-examination whether defendant after shooting his wife had disposed of the gun and after being
arrested showed the officers where it was, was not improper on ground that the factual disposition of the
gun should have been included in the question, where it was conceded that after the homicide, defendant
deliberately parted with the gun.
10. Criminal Law.
Ruling in failing to sustain an objection to a question was not reviewable where objection was not
made until after the answer was given.
Owen Caudle Butner was convicted of murder of the first degree and he appeals.
Affirmed.
John R. Ross, of Carson City, and Griswold & Vargas, of Reno, for Appellant.
General, and Harold O. Taber, District Attorney, John C. Bartlett and Gordon R. Thompson,
Deputy District Attorneys, all of Reno, for Respondent.
OPINION
By the Court, McNamee, District Judge:
Appellant, Owen Caudle Butner, was convicted in the district court of Washoe County of
the crime of murder of the first degree. The jury by its verdict fixed the penalty at death.
penalty at death. Appeal is taken from the judgment and order denying appellant's motion for
a new trial.
Conviction herein resulted from appellant's killing of Mildred Butner, his estranged wife,
at Reno, Nevada, by shooting her three times with a pistol, on December 30, 1947.
Appellant had married decedent in 1933. They lived together thereafter, first in Nevada
and then in California. A son was born of this union. They returned to Nevada in 1941, when
appellant accepted a position with the Reno Police Department as patrolman, which he held
until August 15, 1947. While appellant was in Reno, decedent obtained her first divorce from
him, but they remarried each other shortly thereafter. In September 1947, decedent obtained
her second divorce from appellant, and on the same day appellant obtained employment as a
deputy sheriff of Douglas County, Nevada. He returned to Reno in October 1947, and did not
obtain regular employment again until December 17, 1947, when he went to work for the
Mapes Hotel, as floor man. On December 29, 1947, the day before the fatal shooting, after
receiving his pay check for his work at the Mapes, he went to decedent's home on Locust
Street, where he was met at the door by Gertie Lou Eaton, a friend of decedent. While he and
Mrs. Eaton were talking outside the door, decedent came to the door, and appellant put his
hand inside his coat. Mrs. Eaton warned decedent to close the door, and then asked appellant
for the gun. He refused her, saying that he was going to the edge of town and blow his brains
out. Prior to this, and on September 8, 1947, appellant had stated to decedent's sister that he
guessed he would have to kill decedent and then himself.
On the fatal day, December 30, 1947, just before 6 p. m., appellant had a taxi driven by
Bob Wiseman, take him past decedent's home. Since no one appeared to be there, he was
driven to the home of Mrs. Knight, decedent's mother, and inquired of her where decedent
was. Upon leaving, he put his arm around Mrs. Knight and said, three times, "Mother, I
hate to do this to you because I love you so much."
and said, three times, Mother, I hate to do this to you because I love you so much. He then
had the taxi take him back to the Locust Street home, where he went into the house and
turned on the lights. Just then decedent arrived in another taxi, driven by Jack Watkins.
Seeing that the lights in the house were on, she stated she was afraid to go in, but nevertheless
she did go in, when Watkins was willing to accompany her. Appellant came from another
room into the kitchen, just as they arrived therein, and were setting down their parcels. He
endeavored to get decedent to talk to him in private, but she refused and told Watkins not to
leave, that she was going back to town with him. Watkins walked out the back door to his
cab, followed by decedent and appellant, who was still endeavoring to talk to decedent in
private. As decedent was about to return to the house to lock the door, appellant shot her three
times, and she fell. Appellant pointed the gun at Watkins, and said, Roll her over and see if
she is dead. Watkins replied that she was, and added, Don't shoot me. This is a family
affair. Put that thing in your pocket and beat it. Appellant put the gun in his pocket, and went
back into the house. Appellant then went to Haddock's bar, where he had several drinks and
was apprehended by police. He directed the arresting officers to the place where the gun was,
and, on the way, inquired about decedent. When told she was dead, he stated, God, that's too
bad, but I had to do it. She was an awfully nice woman. I suppose I will have to take the gas,
but I had to do it. At the police station, he was booked and gave the required information
without difficulty, and requested that George Vargas be called as his attorney.
It is conceded by appellant that the state successfully proved by competent witnesses that
Mildred Butner came to her death as a result of bullet wounds inflicted by appellant. The
defense is based on the legal insanity of appellant at the time, and for some time both before
and after, the crime was committed.
and after, the crime was committed. Appellant contends that the evidence is insufficient to
justify a conclusion that the appellant was sane at the time of the commission of the crime.
He claims that a review of the record will show that he has proven, by a preponderance of
evidence, that he was insane when the shots were fired.
1, 2. That there was a conflict in the evidence on the issue of insanity cannot be denied.
Numerous witnesses, expert and nonexpert, were produced both by appellant and by the state,
to prove and disprove the insanity of appellant. The jury by its verdict found that the
defendant was sane at the time of the homicide. It is not now the duty of this court to weigh
such evidence. State v. Watts, 52 Nev. 453, 290 P. 732; State v. Soares, 53 Nev. 235, 296 P.
1081; State v. McNeil, 53 Nev. 428, 4 P.2d 889; State v. Fisco, 58 Nev. 65, 70 P.2d 1113.
The jurisdiction of this court in a criminal case in which the offense charged amounts to a
felony is limited to questions of law alone. Constitution of Nevada, Art. VI, sec. 4; State v.
Millain, 3 Nev. 409, 467; State v. Mills, 12 Nev. 403; State v. Boyle, 49 Nev. 386, 248 P. 48.
Appellant concedes this to be the law, but contends that the conflict on this issue comes
within the exception to the general rule set forth in Consolazio v. Summerfield, 54 Nev. 176,
10 P.2d 629, 630, when this court said:
The general rule * * * is that when the evidence is conflicting and there is substantial
evidence to sustain the judgment it will not be disturbed. But there is an exception to the
general rule to the effect that where, upon all the evidence, it is clear that a wrong conclusion
has been reached, the judgment will be reversed.
It will be noted that the foregoing exception to the general rule was enunciated in a civil case.
This court has very carefully guarded and restricted its possible application in criminal cases.
State v. Boyle, 49 Nev. 386, 403, 248 P. 48; State v. Van Winkle, 6 Nev. 340; State v.
Buralli, 27 Nev. 41
State v. Buralli, 27 Nev. 41, 71 P. 532. The evidence adduced on the part of the state, through
the testimony of expert and lay witnesses, as to the sanity of the defendant, leaves no room
for the application of this exception to the general rule in the instant case.
Appellant strongly urges that the trial court in allowing Jack Watkins to testify as to the
sanity of appellant committed reversible error, because, if it be conceded that the evidence
was substantial as to both sanity and insanity, the consideration by the jury of incompetent
testimony on this matter might very well have tipped the scales against appellant's contention.
The record discloses that Jack Watkins had seen appellant only on the day of the homicide,
and at that time for a period of from three to eight minutes, being the time when he and
decedent encountered appellant in the kitchen of her home, while the three of them walked to
his taxi in the front of the home, and until after the shooting took place. This witness was
permitted, over appellant's objection, to state that in his opinion appellant was sane at the
time of the shooting. On cross-examination, he testified further on this subject, as follows: I
noted at the time of the occurrence that when he pointed the gun at me and told me to roll her
over and see if she was dead, that he wasn't drunk, or he wasn't crazy. I mean, he was
deliberate and cold.
Q. Did you form your opinion at that moment? A. Wouldn't you? I thought it was going
to be my last one.
3. There is no question in this state but that opinion evidence of a layman or nonexpert as
to the sanity or insanity of an accused before or after the time of the alleged crime may
properly be received in evidence, provided the witness possesses adequate knowledge, based
on an opportunity to observe the conduct of the one whose mental condition is in issue. State
v. Lewis, 20 Nev. 333, 22 P. 241:
That such an opportunity (to observe the accused) is necessary, no one has doubted.
is necessary, no one has doubted. The doubt comes only as to the exact phrasing of the test to
be applied. A precise definition, which shall be at once both flexible enough to meet various
situations and exact enough to be a rule at all, is difficult, if not impossible. It has at any rate
not been devised to the satisfaction of all the courts. The truth is that the test should be left in
the hands of the trial judge. Neither its exact phrasing, nor its application in a given instance
should be made to occupy the time of the highest courts. The attempt to invent an
all-sufficient form of words is as inexpedient as it is vain. III Wigmore on Evidence, 3d Ed.,
paragraph 689 (2).
4. The determination of the qualifications of such lay witnesses in this state is left to the
discretion of the trial judge; and where the testimony is admitted, unless it clearly appears that
there has been an abuse of that discretion, this court, on appeal, has not interfered. State v.
Lewis, supra.
5, 6. Although Jack Watkins' opportunity for observation of appellant covered a period of
only three to eight minutes, it covered that period immediately before, during, and
immediately after the shooting. His testimony was positive and clear regarding the mental
condition of the accused. It was based upon his own knowledge and impression of the
accused's conduct at that time. Where the law allows a witness to testify as to the condition of
an accused's mind at times previous and subsequent to the homicide, from impressions made
at the time of observation, on the ground that it tends to show his mental condition at the time
of the homicide, a fortiori it is proper to allow testimony of such condition existing at the
exact time of the homicide, when the same is based on actual observation of the accused at
that time. Watkins found himself at the actual time of the homicide in a condition highly
tense and precarious to his own personal safety, and which required him to heed every
movement, word and gesture of the accused.
accused. The trial judge, in the exercise of his discretion, believed Watkins competent to
express his opinion as to the sanity of appellant at the time of the shooting. We are asked to
review that discretion. Whether we are compelled to do so under the authority of State v.
Lewis, supra, or whether the test of competency should be left entirely in the hands of the trial
judge, as suggested by Wigmore, supra, we do not now decide, because we have no hesitation
in saying that the trial judge, in our opinion, did not in this instance abuse his discretion.
Our views just expressed are entirely consistent with the opinion in the case of State v.
Plunkett, 62 Nev. 258, 265, 142 P.2d 893, 142 P.2d 101, 110, wherein the trial court
sustained an objection by the state to a question asked a lay witness as to the mental capacity
of the defendant. This court, on appeal, held in that case that there was no improper exercise
of discretion by the trial court, and quoted with approval the following language from the
case of State v. Lewis, supra:
The court must be satisfied that the witness has had opportunity, by association and
observation, to form an opinion as to the sanity of the person in reference to whom he is to
speak; but as to the extent and character of the evidence, no better rule can be established than
to leave it within the discretion of the court.
Appellant has cited many cases from other jurisdictions as being in conflict with our
opinion just expressed. They are likewise in conflict with the rule in this state as expressed in
State v. Lewis, supra, and in State v. Plunkett, supra. At common law, opinions of lay
witnesses as to sanity or insanity were received without question. But many of the courts in
this country have modified the common law in this respect to such an extent that its
application has been materially restricted. Such decisions cited by appellant are for the most
part a result of inadvertent departures from the common law, and they make no impression
upon us insofar as they are in conflict with the established law in this state.
are in conflict with the established law in this state. The rules prevailing in each particular
jurisdiction are exhaustively set forth in Wigmore on Evidence, 3d Ed. vol. III, paragraph
689, p. 10, n. 2; vol. VII, paragraphs 1933, 1938 and note. See, also, the text in vol. II
paragraph 659.
7. It is urged on this appeal that there was sufficient evidence of appellant's intoxication at
the time of the homicide to dispel any element of wilfullness, premeditation, or deliberation
required for murder of the first degree, and that this court should modify the judgment by
reducing the degree of the crime from murder of the first degree to murder of the second
degree. With this we are unable to concur.
8. As with the question of insanity, there was substantial evidence pro and con regarding
appellant's state of sobriety at the time the crime was committed. If appellant was under the
influence of intoxicating liquor or drugs to any extent at that time, there was adequate
evidence for the jury to conclude that appellant was not devoid of his powers of deliberation.
A man may be drunk and at the same time be able to deliberate. 15 Am.Jur. 30, paragraph
340, n. 8. Furthermore, appellant admitted that his drinking was his own voluntary act, and
the jury was justified in believing from all the evidence that appellant's use of intoxicants
before the shooting was to create in him sufficient courage to commit the crime which had
been in his mind for more than three months before its occurrence. Intoxication under such
circumstances is of no avail even to mitigate the degree of the crime. 15 Am.Jur. 31, n. 15.
Several other alleged errors were specified in appellant's opening brief, but were not
argued orally.
9. Dr. Bromberg, a witness for the defense, after testifying on direct examination as to the
accused's mental condition, was asked on cross-examination, Doctor, in your diagnosis of
this fugue, did you know that the defendant, after shooting his wife had disposed of the gun
and after being arrested showed the officers where it was?"
gun and after being arrested showed the officers where it was? Objection was made on the
ground that the question was unfair in that the factual disposition of the gun should have been
included in the question. We do not agree with this contention. It is conceded that after the
homicide appellant deliberately parted with the gun. It is immaterial whether he dropped it in
an unconcealed place or secreted it. The pertinent fact is he got rid of the gun, and the verbs
disposed of, get rid of, relinquish possession of, or part with equally connote his
conduct in this respect. The witness was in no way misled by the question. He answered as
follows: I investigated to a degree what happened after the shooting and took that into
consideration in making the diagnosis as I did all other actions both before and after.
Appellant contends that the trial court erred in permitting, over objections, certain leading
and suggestive questions. We do not deem it necessary to quote the individual questions
which form the basis of these objections, because in our opinion they are neither leading nor
suggestive.
10. Exception was noted to the failure of the trial judge to sustain an objection to a
question by the state on cross-examination of a defense witness. The objection was not made
until after the answer was given, and for the reasons stated in State v. Clarke, 48 Nev. 134,
228 P. 582, this court on appeal will not consider its admissibility.
As no error appears in the record, the judgment and order denying a new trial are affirmed,
and the district court is directed to make the proper order for the carrying into effect by the
warden of the state prison of the judgment rendered.
Horsey, C. J., being ill, the Governor designated Honorable Frank McNamee, Judge of the
Eighth Judicial District, to sit in his stead.
On Petition For Rehearing
August 11, 1949.
Per Curiam:
Rehearing denied.
Reporter's note: Petition for a writ of certiorari in the above case was denied by the
Supreme Court of the United States, on February 6, 1950.
____________
66 Nev. 137, 137 (1949) Blouin v. Blouin
JANETTE R. BLOUIN, Appellant, v. EMILE G.
BLOUIN, JR., Respondent.
No. 3553
May 17, 1949. 206 P.2d 608.
In addition to judgment roll, supreme court will consider only such papers as are incorporated in a
duly settled bill of exceptions, subject to right to amplify such record under certain circumstances.
District court reporter's conclusion that a fragment of a transcript covered all testimony or
proceedings on a given subject matter could not be substituted for statutory requirement for district
judge's certificate or parties' stipulation as comprising a bill of exceptions. N.C L.1929, sec 9385.81.
Instruments which were certified by clerk of district court as being true copies of originals there filed,
but which did not comprise a part of judgment roll as defined by statute and were not pleadings as
defined by statute, would be stricken on respondent's motion, where such clerk's record was not settled
by district court or by stipulation as comprising a bill of exceptions. N.C.L.1929, secs. 8593, 8829,
9385.81.
Where appeals from order denying motion to vacate and set aside decree, from order denying new
trial and from order denying motion for allowances were without support in record, appeals would be
dismissed upon respondent's motions.
Supreme court will dispose of appeals on their merits whenever possible.
Power of supreme court to correct errors in transcript or bill of exceptions under supreme court rules
would not be exercised, in absence of application by appellant for relief under such
rules.
exercised, in absence of application by appellant for relief under such rules. Rules of the Supreme Court,
rules 7, 8.
Assignment of error on appeal that amended complaint did not state facts sufficient to constitute a
cause of action could be considered by supreme court so far as any errors appeared in judgment roll itself
without a duly settled bill of exceptions. N.C.L.1929, secs. 8829, 9385.81, 9385.86.
8. Divorce.
Wife's motion for allowances pending appeal in divorce action could be allowed only prospectively.
9. Divorce.
Where wife had already met all of expenses of preparing record on appeal in divorce action and had
met expense and attorney fees of filing her opening brief on the merits, no allowances could be made for
such items.
10. Divorce.
Where wife had already met all expenses of preparing her record on appeal in divorce action and had
met expense and attorney fees of filing her opening brief on the merits, and only further attorney fee
involved would be for preparation of her reply brief in argument on merits before supreme court, no
allowance would be made therefor in view of limitation of appeal only to issue as to whether amended
complaint stated facts sufficient to constitute cause of action.
11. Divorce.
Wife's motion for alimony pending appeal in divorce action would be denied, where only issue to be
considered on appeal was whether amended complaint stated facts sufficient to constitute a cause of
action, and argument on such point could be promptly set by court of its own motion or at request of
either party and period involved would be so brief as not to warrant granting alimony.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Divorce action by Emile G. Blouin, Jr., against Janette R. Blouin. From judgment granting
divorce, from order denying motion to vacate decree, from order denying new trial and from
order denying motion for allowances, the defendant appeals. On several motions by each of
the parties. Order in accordance with opinion.
George E. McKernon, of Reno, and Clarence M. Watkins, of Auburn, California, for
Appellant.
Frank B. Gregory and W. E. Baldy, both of Carson City for Respondent.
OPINION
Several motions were duly noticed, argued and submitted to the court. They include (1)
respondent's motion to strike certain papers from the files, (2) respondent's motion to dismiss
the appeal from the judgment, (3) respondent's motion to dismiss the appeal from the order
denying appellant's motion to vacate and set aside the decree, (4) respondent's motion to
dismiss the appeal from the order denying motion for new trial, (5) respondent's motion to
dismiss the appeal from order denying defendant's motion for allowances, and (6) appellant's
motion for allowances by way of costs, attorney fees and alimony pending the appeal.
The appeals are: (1) from a judgment granting respondent a divorce January 29, 1948; (2)
from order denying motion to vacate the decree, made July 29, 1948; (3) from order denying
a new trial, made March 3, 1948; and (4) from an unidentified order denying a motion for
allowances.
Motion to Strike
The motion to strike is directed to the following papers:
Notice of Motion and Motion For Leave to Amend Complaint to Conform to Proof.
Affidavit in Support of Motion to Amend Complaint.
Order Granting Leave to File Amendment to Complaint to Conform to Proof.
All Minute Orders (Except Order Overruling Demurrer).
Defendant's Exhibit B With Clerk's Certificate Attached Thereto.
Defendant's Exhibit A.
Conclusions of Law.
Notice of Motion and Motion for New Trial.
Letter Dated February 20, 1948 addressed to Frank Gregory.
Affidavit of Mailing Certified Copy of Notice of Denial of Motion for New Trial.
Notice of Denial of Motion for New Trial.
Notice of Motion and Motion to Vacate and Set Aside Decree and Order Denying Motion
for New Trial.
Affidavit of Janette R. Blouin.
Notice of Motion to Set Aside Decree.
Notice of Appeal.
Amended Notice of Appeal.
Affidavit of Service by Mailing.
Stipulation.
Order Extending Time to File Transcript of Hearing.
All of these instruments are embodied in a group of papers without title other than that
indicated in the index thereto, which is Index of Clerk's Record. The papers are all certified
to by the clerk of the district court as being true copies of the originals there filed. None of
these papers comprises a part of the judgment roll as defined by sec. 8829, N.C.L. They are
not pleadings as defined in sec. 8593, N.C.L. This Clerk's Record was not settled by the
court or by stipulation as comprising a bill of exceptions. It does not purport to comply with
the requirements of sec. 9385.81, N.C.L. or the sections following, or with the rules of this
court.
1
In oral argument counsel for appellant stated that appellant does not claim to
have a settled bill of exceptions but that his record {1) in any event contains the papers
comprising the judgment roll, and {2) that this court can consider whatever records it
desires to consider on the several appeals.

____________________

1
Sec. 9385.81, N.C.L. provides: * * * any party to an action or proceeding may serve and file a bill of
exceptions to such judgment or any ruling, decision, order, or action of the court, which bill of exceptions shall
be settled and allowed by the judge or court, or by stipulation of the parties, by attaching thereto or inserting
therein a certificate or stipulation to the effect that such bill of exceptions is correct, contains the substance of
the proceedings relating to the point or points involved and has been settled and
In oral argument counsel for appellant stated that appellant does not claim to have a settled
bill of exceptions but that his record (1) in any event contains the papers comprising the
judgment roll, and (2) that this court can consider whatever records it desires to consider on
the several appeals. It is true that the record referred to contains certified copies of
instruments which are made by statute a part of the judgment roll, and respondent's motion
does not go to such instruments.
1. As to the asserted right of this court to consider whatever papers it may desire to
consider, such has never been the position taken by this court. We have consistently held that,
in addition to the judgment roll, this court will consider only such papers as incorporated in a
duly settled bill of exceptions, subject to the right to amplify and complete such record under
certain circumstances. Brearley v. Arobio, 54 Nev. 382, 12 P.2d 339, 19 P.2d 432; McGill v.
Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702; Roberts v. Roberts, 63 Nev.
459, 174 P.2d 611; Sullivan v. Nevada Industrial Commission, 54 Nev. 301, 14 P.2d 262;
Nevada Desert Inn v. Burke, 64 Nev. 504, 185 P.2d 1005; Garred v. Garred, 51 Nev. 335, 275
P. 2.
2, 3. It is asserted, however, that we may consider these appeals upon the reporter's
transcript of the testimony and proceedings. The transcript filed herein on September 20,
1948 purports, however, according to to the reporter's certificate, to be only a transcript of
the proceedings on the motion to vacate the decree and the motion for a new trial July 29,
194S.
____________________
allowed, and when such bill of exceptions has been so settled and allowed it shall become a part of the record in
such action or proceeding.
Rule II requires the filing of the transcript of the record on appeal within thirty days after the appeal has
been perfected and the bill of exceptions has been settled. Rule III reads, so far as applicable: If the transcript
of the record be not filed within the time prescribed by Rule II, the appeal, after five days' notice in writing to the
appellant, specifically stating the grounds thereof, may be dismissed on motion of the respondent.
Sec. 9385.86 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 * * *.
to the reporter's certificate, to be only a transcript of the proceedings on the motion to vacate
the decree and the motion for a new trial July 29, 1948. This transcript embodies in turn a
transcript certified by the court reporter to be a transcript of the proceedings had at the trial
January 29, 1948, but contains the notation (Note: The following testimony merely covers
residence, and was requested to be transcribed.) Such fragmentary transcript is by no means
the transcript contemplated by N.C.L. sec. 9385.81(1). Nor can appellant save the situation by
the contention that the fragmentary transcript covering residence shows that the court did
not have jurisdiction over the parties. A court reporter's conclusion that a fragment of a
transcript covers all the testimony or proceedings on a given subject matter cannot be
substituted for the statutory requirement for the judge's certificate or the parties' stipulation.
We are left no alternative but to grant the motion to strike. (So far as this applies to the Notice
of Appeal and Amended Notice of Appeal, these instruments appear separately in the file.)
Motion to Dismiss Appeal from Order Denying Motion to Vacate and Set Aside Decree.
Motion to Dismiss Appeal from Order Denying New Trial.
Motion to Dismiss Appeal from Order Denying Motion for Allowances.
4-6. Without support of any kind in the record, these appeals must be dismissed and the
motions granted. Indeed appellant filed herein on September 20, 1948 an Assignment of
Errors. With the exception of assignment No. 1, which is to the effect that the amended
complaint does not state a cause of action, and assignment No. 14 (which is virtually the same
as assignment No. 1) that the court erred in overruling the demurrer to the amended
complaint, all of the sixteen assignments of error could be considered only in connection
with a duly settled bill of exceptions.
connection with a duly settled bill of exceptions. Appellant concedes, nay insists, that the
errors assigned are not discernible from the judgment roll and can be presented only by
examination of the documents and proceedings attempted to be filed herein as a bill of
exceptions or record on appeal. This is undoubtedly so, but it does not help appellant. See
cases cited supra and the many other decisions of this court therein cited.
Appellant refers to the often expressed disposition of this court to dispose of appeals on
their merits. We still adhere to that policy whenever possible, but the state of the record in
this case leaves no room for the exercise of our discretion. McGill v. Lewis, supra. Appellant
refers to the power of this court to correct errors in the transcript or bill of exceptions under
Rules of Court VII and VIII, but has made no application for relief under either of these
sections.
Motion to Dismiss Appeal from Judgment.
7. Despite the foregoing the appeal from the judgment still pends and may be considered
by this court so far as any errors appear in the judgment roll itself. As noted above, the only
assignment of error remaining on such appeal is that the amended complaint does not state
facts sufficient to constitute a cause of action. The motion to dismiss the appeal from the
judgment must accordingly be denied.
Appellant's Motion for Allowances Pending
the Appeal.
8-11. A motion of this nature may be allowed only prospectively. Appellant has apparently
already met all of the expense of preparing her record on appeal and has met the expense and
attorney fees of filing her opening brief on the merits. Accordingly no allowances can be
made for these items. See Caye v. Caye, 65 Nev. , 203 P.2d 1013. The only further attorney
fee involved will be for the preparation of appellant's reply brief and the argument on the
merits before this court.
reply brief and the argument on the merits before this court. In view of the limitation of the
appeal to the only point that may now be argued, we are not disposed to make any allowance
at this time. The same applies to appellant's motion for alimony pending the appeal.
Argument on the only point remaining may be promptly set by the court of its own motion or
at the request of either party and the period involved will be so brief as not to warrant an
order granting a motion for such alimony.
It is accordingly ordered as follows:
The motion to strike is hereby granted.
The motion to dismiss the appeal from the order denying the motion to vacate the
judgment is granted.
The motion to dismiss the appeal from the order denying new trial is hereby granted.
The motion to dismiss the appeal from the order denying allowances is hereby granted.
The motion to dismiss the appeal from the judgment is denied.
The appellant's motion for allowances is hereby denied.
Each party will pay his and her own respective costs on these motions.
Eather, J., and Brown, District Judge, concur.
Horsey, C. J., being absent on account of illness, the Governor commissioned Honorable
Merwyn H. Brown, Judge of the Sixth Judicial District, to sit in his place.
On Petition for Rehearing
June 22, 1949.
Per Curiam:
Rehearing denied.
____________
66 Nev. 145, 145 (1949) Iveson v. District Court
OLIVER IVESON, DAVID E. IVESON, E. O. IVESON, AND J. R. TAYLOR, Petitioners,
v. SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, In And
For The County Of Washoe, Department 2 Thereof, Respondent.
No. 3577
May 26, 1949. 206 P.2d 755.
1. Certiorari.
Certiorari will issue where the inferior tribunal in the exercise of judicial functions has exceeded its
jurisdiction. N.C.L. 1929, sec. 9231.
2. Certiorari.
Excess of jurisdiction for which certiorari will issue exists where the act is within the judge's
general power but is not authorized because the conditions for the exercise of such power are wanting.
3. Judgment.
A motion to be relieved of a default must be supported by affidavit showing good cause therefor and
must be based upon mistake, inadvertence, surprise or excusable neglect and notice must be given to the
adverse party, and lack of any of such jurisdictional requirements will deprive the court of jurisdiction
though the court has general jurisdiction to relieve of defaults. N.C.L.1931-1941 Supp. sec. 8640.
4. Courts.
Where a statute prescribes the mode of acquiring jurisdiction that mode must be complied with or the
proceedings will be a nullity.
5. Judgment.
Motions to set aside and strike from the files a document entitled default on grounds that defendants
had appeared in action by answer prior to entry of default and that at time the default was entered a true,
full and correct copy of complaint in the action had not been served upon defendant raised issue whether
defaults had been properly entered and invoked action of court exercising a judicial power altogether
different from the power to relieve of default. N.C.L.1931-1941 Supp. sec. 8640.
6. Courts.
Generally every court of record has an inherent authority to amend its records to make them speak the
truth.
7. Courts.
The true state of the record is to be determined by the court.
8. Clerks of Courts.
A clerk acts in a ministerial capacity in entering a default.
9. Trial.
Whether a party has appeared in the action is a question of law and fact to be determined by the court.
10. Motions.
In the absence of a statute or court rule a defect in any proceeding may be called to the court's
attention by motion.
11. Courts.
Judges have control of the record so far as is essential to the proper administration of justice, and the
power the court exercises is not subject to defeat by any ministerial act or omission of the clerk.
12. Courts.
The power of the court to control its own proceedings is judicial in character and is inherent and its
source is found in the proposition that a court must have such ancillary and incidental jurisdiction to
effectuate its general jurisdiction.
13. Judgment.
Where the plaintiffs were properly noticed and appeared and resisted motion to set aside and strike
from the files a document entitled default the court had jurisdiction to entertain such motion.
14. Motions.
A motionis a proceeding directed to a court's authority to act on a given subject and is an
application for an order. N.C.L.1929, sec. 8911.
15. Certiorari.
On certiorari to review action of trial court allegedly in excess of its jurisdiction, the supreme court is
limited to a determination of whether the act complained of was in excess of jurisdiction and is not
concerned with the merits nor in correcting or modifying the action of trial court. N.C.L.1929, sec. 9231.
Badt, J., dissenting.
Certiorari by Oliver Iveson and others to set aside an order entered by the Second Judicial
District Court of the State of Nevada, in and for the County of Washoe, Department 2 thereof,
setting aside a default in an action pending in such court wherein the petitioners were the
plaintiffs and United States Gypsum Company and the Pacific Portland Cement Company
were defendants. On motion to quash and set aside the writ. Motion granted.
Samuel Platt and Bruce Lehman, both of Reno, for Petitioners.
Thatcher, Woodburn & Forman and Wm. J. Kane, all of Reno, for Respondent.
OPINION
This is a motion to quash and set aside a writ of certiorari which is before this court on
these facts.
On November 9, 1948, the petitioners here, as plaintiffs, filed a complaint in the Second
judicial district court of the State of Nevada, in and for the county of Washoe, in department
2 thereof, naming the United States Gypsum Company and the Pacific Portland Cement
Company as defendants. This action was designated on the files of the said court as Civil
Action No. 121194. For the purpose of easy reference, said action will hereafter be referred to
as action No. 121194; the petitioners here, as plaintiffs, the movants here, who have joined
with the respondent court in this motion, and who were defendants in action No. 121194, as
defendants, and the respondent court as respondent.
Summons issued, service made on the defendant Pacific Portland Cement Company on
November 9, 1948, at Reno, Nevada, and on the United States Gypsum Company on
November 22, 1948, at Las Vegas, Nevada. On November 18, 1948 each defendant filed
separately a petition for an order removing the action to the United States district court in and
for the district of Nevada, and with the petition each filed a notice of intent to move for
removal.
The motions for removal were heard together by the state court on November 18, 1948,
and an order made and entered removing the action to the federal court. The plaintiffs
appeared at the hearing by and through their counsel of record, and the record shows that no
consent was entered or any objection waived.
On November 30, 1948, the plaintiffs applied for and the default of the defendant, Pacific
Portland Cement Company, was entered by the clerk of the respondent court. Application was
made to enter the default of the United States Gypsum Company on December 23, 1948, and
was on the same day made and entered.
However, on December 24, 1948, at the request of counsel, the clerk of the state court
erased the entry of the default on the docket theretofore entered against the United States
Gypsum Company, and that defendant, on that date, filed a demurrer.
The plaintiffs filed in the United States district court, on December 23, 1948, a notice of
motion and motion to remand civil action No. 121194, and served this on both defendants.
This motion came on to be heard on the 14th day of January 1949. The parties appeared and
an order was entered remanding the civil action No. 121194 to the state court. A copy of this
order was forwarded to the clerk of the respondent court and received by him on January 18,
1949.
On that same day the defendants separately filed in the state court notice of motion to set
aside and strike from the files a document entitled Default. In the motion of the defendant,
Pacific Portland Cement Company, the sole ground designated was that the defendant had
appeared in the action by answer as construed in section 8792, N.C.L.1931-1941 Supp., prior
to the entry of the default. The notice of the United States Gypsum Company showed the
additional ground that at the time the default was entered, a true, full and correct copy of the
complaint in action No. 121194 had not been served upon that defendant.
These motions were heard together on the 2d day of February 1949; testimony taken
concerning the circumstances surrounding the erasure of the default against the United States
Gypsum Company on the docket but on no other facts. The matter was argued and then
submitted, and on March 2 the court rendered its decision in which it designated the
motions as motions to set aside a default and ordered "that the motion of each defendant
above-named be granted."
its decision in which it designated the motions as motions to set aside a default and ordered
that the motion of each defendant above-named be granted.
On March 15, 1949, the plaintiffs filed their petition for a writ of certiorari in this court
setting out all of these facts, alleging that the act of the district court was void and in excess
of jurisdiction, and praying that the writ issue against the respondent court. Such a writ did
issue and the defendants on behalf of themselves and respondent court have moved to quash
and set aside the said writ on the following grounds.
(1) That the petition for the writ does not state facts sufficient to authorize the issuance of
the writ.
(2) That from the allegations appearing on the face of said petition it appears that the
inferior tribunal, to wit: The Second judicial court of the State of Nevada, in and for the
county of Washoe, department 2 thereof, did not exceed the jurisdiction of said court in its
order of March 2, 1949, in granting the motions of the respective defendants to set aside the
purported defaults theretofore entered against each of said defendants by the clerk of said
district court.
(3) That it affirmatively appears from the allegations of said petition that the petitioners
herein have a right of appeal from the said order complained of in said petition.
(4) That petitioners have a plain, speedy and adequate remedy without resorting to the
remedy afforded by a writ of certiorari.
(5) That the petitioners have not alleged in said petition any reason, or shown any injury
resulting to the petitioners which would justify the issuance of the writ of certiorari.
(6) That the petitioners did not question by any proper pleading, motion or objection to the
jurisdiction of the Second judicial district court of the State of Nevada, in and for the county
of Washoe, department 2 thereof, to entertain, hear or make an order upon the motions upon
which the order here complained of is based.
motions upon which the order here complained of is based.
(7) That this court should not in the exercise of its sound discretion have issued the writ of
certiorari upon the facts stated in the petitioners' petition herein.
The additional facts of which we should take note here are that the new federal court rule,
28 U.S.C.A. sec. 1446, requires that the petition for removal be filed in the federal court,
became effective on September 1, 1948. Prior to that time the procedure for removal, 28
U.S.C.A. sec. 72, required that the petition be filed in the state court.
An Answer has been defined by the applicable statute of this state, section 8792,
N.C.L.1931-1941 Supp. (Stats.1937, 37) as being: Any pleading or proceeding that raises an
issue of law or fact whether the same be by general or special appearance.
It is the contention of the plaintiffs that as neither of the defendants ever appeared in action
No. 121194, and as each was in default, the court in setting aside the default was acting in
excess of jurisdiction for the reason that application was not made in the manner or upon any
of the grounds designated by statute and was not granted on any of the grounds provided for
by the statute. See 8640, N.C.L.1931-1941 Supp. (Stats.1939, 205). Whenever a statute
affords a remedy, the jurisdictional requirements of the statute must be observed or the court
is without jurisdiction to act. Yowell v. District Court, 39 Nev. 423, 159 P. 632.
1. The scope of a writ of certiorari extends only to a review of the judicial act of an inferior
tribunal, board or officer which it is asserted acted in excess of jurisdiction. Section 9231,
N.C.L.1929. The writ will issue where the inferior tribunal in the exercise of judicial
functions has exceeded its jurisdiction. In re Rourke, 13 Nev. 253; In re Wixom, 12 Nev. 219;
Degiovanni v. Public Service Commission, 45 Nev. 74, 197 P. 582; Ruddell v. Sixth Judicial
District Court, 54 Nev. 363, 17 P.2d 693; State ex rel.
17 P.2d 693; State ex rel. Hinckley v. Sixth Judicial District Court, 53 Nev. 343, 1 P.2d 105.
2. It is of the order granting the defendant's motion to set aside and strike the defaults of
the defendant that the plaintiffs complain and which they assert was in excess of jurisdiction.
Excess of Jurisdiction describes that act which is within a judge's general power but which
is not authorized because the conditions accrediting exercise of that power are wanting. See
vol. 15, Words and Phrases, Perm.Ed., page 477.
3, 4. A motion to be relieved of a default under section 8640, N.C.L.1931-1941 Supp.,
must first of all be supported by affidavit showing good cause therefor, and must be based
upon mistake, inadvertence, surprise or excusable neglect. Price v. Brimacombe, 58 Nev.
156, 72 P.2d 1107, 75 P.2d 734. Notice must be given to the adverse party and the lack of any
one of these jurisdictional requirements would deprive the court of jurisdiction, though the
district court has general jurisdiction to relieve of defaults. Thus an order made, which is not
based upon a record showing all of these requirements, is in excess of jurisdiction. We here
repeat a principle given recognition by this court many years ago. Where a statute prescribes
the mode of acquiring jurisdiction, that mode must be complied with or the proceedings will
be a nullity. Paul v. Armstrong, 1 Nev. 82. See also Yowell v. District Court, supra.
It would seem, therefore, that if the defendants' motions were addressed to the court's
power to relieve of default, they were deficient in at least one respectthey were not based
upon mistake, inadvertence, surprise or excusable neglect.
5. Careful consideration of the record furnished us, convinces, however, that the issue
raised by the defendants' motion was not whether, because of any of the grounds specified in
the statute, the defendants should be relieved of a default, but the issue was on the other hand,
whether the defaults had been properly entered and invoked the action of the court
exercising a judicial power altogether different from that of its power to relieve of
default.
and invoked the action of the court exercising a judicial power altogether different from that
of its power to relieve of default. In the one instance the default is conceded and the court is
concerned with the grounds for relief, which must have been specified. In the other instance
the question is whether a default has been properly entered, if it has been entered. It is a
motion to strike made on the ground that the record shows a default was improperly entered
because of appearance made by the party.
6-11. Generally every court of record has an inherent authority to amend its records to
make them speak the truth. Brockman v. Ullom, 52 Nev. 267, 286 P. 417. The true state of
the record is to be determined by the court. A clerk acts in a ministerial capacity in entering a
default. Price v. Brimacombe, supra. Whether or not a party has appeared in the action is a
question of law and fact to be determined by the court. In the absence of a statute or court
rule, a defect in any proceeding may be called to the court's attention by motion. State v.
Springer, 40 Utah 471, 121 P. 976. Judges have control of the record so far as is essential to
the proper administration of justice. Evans v. District Court et al., 50 Idaho 60, 293 P. 323.
And the power the court exercises is not subject to defeat by any ministerial act or omission
of the clerk. Happy Coal Co. v. Brashear, 263 Ky. 257, 92 S.W.2d 23.
12. We find the power which the court has to control its own proceedings described in the
case Abelleria v. District Court, 17 Cal.2d 280, 295, 109 P.2d 942, 132 A.L.R. 715. This
power is judicial in character and can only be exercised by a court. It is inherent and its
source is found in the proposition that a court must have such ancillary and incidental
jurisdiction to effectuate its general jurisdiction.
To allow an officer of the court, such as the clerk, to exercise this power may not only be
unconstitutional {See Art.
(See Art. VI, section 109, Nevada Constitution) but would result in such practical difficulties
as to make orderly administration of justice difficult. We have only to suppose one or two
situations to make this clear. In fact, the matter before us adequately illustrates the point if we
consider for the purpose of making the point that the clerk was entirely wrong in entering the
defaults. In any given situation involving the clerk and the remedial rights of the litigants, the
clerk, except as he might be controlled by appeal or other proceedings, would determine what
would be heard by the court. From time to time the clerk in order to act at all would have to
determine the character of documents filed with him, and it is no answer to the problem to say
relief might be had by appeal or other remedy.
13. We have determined that the court had jurisdiction to entertain such a motion. The
record as set out by the plaintiffs shows that plaintiffs were properly noticed and appeared to
resist the motion.
14. A motion is a proceeding directed to a court's authority to act on a given subject. It is
an application for an order and every direction of a court or judge made or entered in
writing, and not included in a judgment, is denominated an order. Section 8909, N.C.L.
1929. Notice is required (See section 8911, N.C.L.1929) and must be given in the time and
manner prescribed by statute. See section 8911, N.C.L.1929; sections 8914 to 8922,
N.C.L.1929, inclusive.
15. Beyond this our inquiry should not go. We are limited by statute and the decisions of
this court to a determination of whether the act complained of was in excess of jurisdiction on
a writ of certiorari. We are not, therefore, concerned with the merits, nor in correcting or
modifying the order made by the court.
The boundary between an error of judgment and the usurpation of power is this: The
former is reversible by an appellate court within a certain fixed time, and is therefore only
voidable, while the latter is an absolute nullity, and, when jurisdiction once attaches,
proceedings thereafter in the litigation, though erroneous, cannot operate to divert it, but
the judgment is binding until reversed.
therefore only voidable, while the latter is an absolute nullity, and, when jurisdiction once
attaches, proceedings thereafter in the litigation, though erroneous, cannot operate to divert it,
but the judgment is binding until reversed. This principle has been laid down in the forcible
expression that the power to decide necessarily carries with it the power to decide wrongly as
well as rightly, and is subject to the qualification that the court can render only such judgment
as does not transcend in extent or character the law which is applicable to that class of cases.
Wilson v. Morse, 25 Nev. 375, 60 P. 832. This rule received further approval in Hilton v.
Second Judicial District Court, 43 Nev. 128, 183 P. 317, 319, where the court, speaking
through Mr. Justice Sanders, stated: It is further insisted by counsel for petitioner that the
court erred in determining that the defendant's cause of action for support and maintenance
was brought within the statute. Stats. 1913, p. 120. If this be error, it was not in excess of
jurisdiction, and may be corrected by the usual mode for the correction of errors.
More recently, in Cornbleet v. Second Judicial District Court, 58 Nev. 227, 73 P.2d 828,
829, where it was contended that the court was without authority to appoint a guardian ad
litem for a party defendant, first, because no evidence was received as to the fitness of the
appointee before appointment, and, secondly, because the evidence showed him to be
disqualified, this court said: Consequently, the sufficiency of the evidence which petitioner
claims shows that the court acted without authority in making the appointment will not be
reviewed. This court determined in that case that the district court had jurisdiction to enter
such an order, that the order of the court issued after the jurisdictional requisites had been
satisfied. See, also, McLeod v. District Court, 39 Nev. 337, 157 P. 649.
We reiterate that the right to decide does not depend upon adjudging correctly; the test is
whether the court had authority to make any order, not the nature of or sufficiency of the
evidence acted upon.
had authority to make any order, not the nature of or sufficiency of the evidence acted upon.
This has been very clearly set out in State ex rel. Hinckley v. Sixth Judicial District Court,
supra [53 Nev. 343, 1 P.2d 108], where we find this language: It is not contended that the
court did not have jurisdiction to rule upon objections to tendered evidence as a general
proposition, but that the court ruled incorrectly in the matter in question and by so doing
divested itself of jurisdiction. This court has often taken the contrary view. In Phillips v.
Welch, 12 Nev. 158, 170, it was said, in speaking of a determination by the district court in a
contempt proceeding: It may have erred. Whether it did or did not, it is not our province in
this proceeding, to inquire. We are prohibited by the statute from investigating this question.
Even admitting that the court erred in the conclusions it reached, yet all the authorities above
cited hold that error in judgment, in respect to a question which the court is authorized to
investigate and determine, does not, by any means, constitute an excess of jurisdiction. If it
did, then every error committed by any inferior tribunal, in the course of judicial
investigations, would be in excess of jurisdiction, and the writ of certiorari would be
converted into a writ of error instead of remaining, where the statute has placed it, a writ of
review.
* * *'
These views are sustained by many decisions of this court, as shown in State v. [Second
Judicial] District Court, 32 Nev. 189, 105 P. 1022. See also State v. McFadden, 43 Nev. 140,
182 P. 745.
We do not think the court exceeded its jurisdiction in rejecting the tendered evidence.
The test, therefore, is whether jurisdictional requisites have been met, and plaintiffs have
not shown any were lacking. Plaintiffs' petition is based upon the premise that the default was
an accomplished fact, a point on which the defendants took issue. The court agreed with the
defendant and if, in so doing, committed error, we are not on a writ of certiorari permitted
to review the question on its merits.
are not on a writ of certiorari permitted to review the question on its merits.
It is an inescapable conclusion from the cases just discussed, and it is so stated in Mack v.
District Court, 50 Nev. 318, 258 P. 289, that On certiorari to review order in receivership
proceedings where lower court had jurisdiction to make order complained of, the writ will not
issue, and it is immaterial whether the order was appealable or not.
The motion that the writ of certiorari be vacated and set aside should be granted; it is so
ordered.
Eather, J., concurs.
Chief Justice Horsey being unable to participate in this case because of illness, the
Governor appointed the Honorable Taylor Wines, District Judge, to sit in his stead.
Badt, J. (dissenting):
I agree with the reasoning of the majority opinion and with the authorities therein cited and
with the well-recognized limitations of the functions of the writ of certiorari. The majority
opinion likewise recognizes the rule that where a statute prescribes the mode of acquiring
jurisdiction that mode must be complied with or the proceedings will be a nullity. We part
company in the determination of the nature of the proceedings in the court below wherein the
defendants there moved for an order setting aside their respective defaults. The majority
opinion concludes that the issue there raised was not whether, because of any of the grounds
specified in the statute, the defendants should be relieved of a default, but the issue was, on
the other hand, whether the defaults had been properly entered and invoked the action of the
court exercising a judicial power altogether different from that of its power to relieve of
default. That the clerk in entering a default acts in a ministerial capacity is clear. Price v.
Brimacombe, 58 Nev. 156, 72 P.2d 1107, 75 P.2d 734.
But that the general power of a court to make its records speak the truth and to correct defects
in proceedings and to control its records for the proper administration of justice may be
extended to include the situation presented here is by no means supported by the record. The
separate motion of each defendant was for an order to set aside and strike from the files
herein that certain document denominated default' which purports to have been entered by
the clerk. * * * The motion was to set aside the default. The motion to strike the document
denominated default added nothing to it. Such document is merely an instrument used by
the county clerk reciting the date of service appearing from the return of summons and the
failure of the defendant to answer within the time allowed by law and the entry of the default.
The motion made in each case was upon the ground that the petition for removal filed in the
state district court was an answer. The additional ground that the defendant had not been
served with a full, true and correct copy of the complaint we need not consider, as the point
involved a minor clerical discrepancy. The court minutes of February 2, 1949 show that such
date was the time set for the hearing of defendants' motion to set aside the default and that
counsel for United States Gypsum Company made its motion to set aside the default. The
minutes of the same date show that counsel for defendant Pacific Portland Cement Company
made its motion to set aside the default. The minutes further show that affidavits were filed
by the plaintiffs in opposition to the motion to set aside default. The minutes of February 4
show that such was the time to which the argument on defendants' motion to set aside
default was continued, and the motion stood submitted. The minutes of March 2, 1949
show the following:
The court at this time rendered its decision on defendants Pacific Portland Cement Co.
and the United States Gypsum Co., motions to set aside default which had heretofore been
entered, said motions having heretofore been argued and submitted, and ordered the
motion of each defendant above named be granted."
States Gypsum Co., motions to set aside default which had heretofore been entered, said
motions having heretofore been argued and submitted, and ordered the motion of each
defendant above named be granted.
The motions before the district court were simply motions to set aside the defaults, nothing
more. I do not overlook the distinction sought to be made by my learned associatesthat the
defendants contended that the defaults had been unlawfully entered, while the usual motion
would admit the default and seek relief from it. But if as a matter of law the defaults were
lawfully entered, the defendants could not by persisting in their error by-pass the
jurisdictional requirements necessary to obtain relief. They could not create a jurisdiction to
act, on the theory that the order sought would make the record speak the truth. It already
spoke the truth. Adding one error to another could not build up a jurisdiction that could be
invoked only in the statutory manner.
The main question thus presented to this court is whether the jurisdiction of the district
court to entertain, hear and grant such motion to set aside these defaults was ever properly
invoked. Section 8640, N.C.L., referred to in the prevailing opinion, provides that: The court
may, * * * upon such terms as may be just, and upon payment of costs, relieve a party or his
legal representatives from a judgment, order, or other proceeding taken against him through
his mistake, inadvertence, surprise or excusable neglect * * *. The liberality of district courts
and of this court in granting such relief has been evidenced many times, and all courts have
uniformly adhered to the desire that all cases be tried upon their merits wherever possible.
Just why the defendants in the court below steadfastly avoided any motion for relief under
this statute does not appear. They relied entirely upon their contention that their respective
motions to remove comprised answers under the statutory definition.
answers under the statutory definition. The prevailing opinion does not reach this point, but
there is no reason why it should be avoided. This court in other cases, and notably in State ex
rel. Hinckley v. Sixth Judicial District Court, 53 Nev. 343, 1 P.2d 105, held in an appeal from
a conviction for contempt that it was error for the district court to exclude testimony which
would have shown justification for the contemnor's acts but that such error was within
jurisdiction. There can be little question but that the district court's order setting aside the
defaults upon the only ground asserted, namely, that the motion to remove constituted an
answer, was error.
The only authority for the removal of a cause from a state court to a federal court must be
found in the acts of congress. Under the amendment a petition for removal must be filed in
the federal court, and the filing of the petition in the state court in the instant case had no
legal effect whatsoever. The petition thus filed was a fugitive or vagrant paper, having no
more effect than if it had been filed in this court or in the court of some justice of the peace,
or if it had prayed for permission to change the corporate name of the defendant, or for
permission to change its capital stock structure. Although addressed to the district court, its
filing failed to invoke the exercise of any discretion, judgment or power of action of any kind
whatsoever. It was a complete nullity. Being so, the court was without jurisdiction to act upon
it. As above noted, the majority opinion does not reach this situation. On the other hand this
conclusion must be just as clear to my learned associates. Their conclusion, however, means
that although the petition for removal was a vagrant paper and although the county clerk
therefore acted properly in entering the defaults, and although the district court was in error in
setting aside the defaults upon the ground asserted, its general jurisdiction over the parties
and the subject matter and its power to make its records speak the truth resulted in the
vesting of its jurisdiction to decide wrongly as well as correctly, and that its erroneous
order setting aside the defaults must therefore stand until reversed on appeala fate
which in my opinion inevitably confronts it {if plaintiffs should be unsuccessful and should
appeal) even in view of the majority order vacating the writ of certiorari.
and the subject matter and its power to make its records speak the truth resulted in the vesting
of its jurisdiction to decide wrongly as well as correctly, and that its erroneous order setting
aside the defaults must therefore stand until reversed on appeala fate which in my opinion
inevitably confronts it (if plaintiffs should be unsuccessful and should appeal) even in view of
the majority order vacating the writ of certiorari.
As the removal proceedings were a nullity and the defaults were therefore properly entered
by the ministerial act of the clerk, the jurisdiction of the district court to set aside the defaults
could be invoked only by proper application and statutory procedure as provided in N.C.L.
sec. 8640. My learned associates present the hypothetical situation if we consider for the
purpose of making the point that the clerk was entirely wrong in entering the defaults. I do
not think that we need to consider such a hypothetical situation. His erroneous ministerial act
in such case would be a mere nullity. Relief might possibly be had in a number of ways which
we need not consider. In Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317, 319, in which a notice
of appeal from the judgment was filed with the clerk of this court despite our statutory
requirement that such notice be filed with the clerk of the district court, this court held that
there was no appeal. So strongly did the court feel in the matter that it even denied the
respondent's motion to dismiss the appeal because, as this court there stated, There is * * *
nothing to dismiss.
The prevailing opinion relies strongly on State ex rel. Hinckley v. Sixth Judicial District
Court, 53 Nev. 343, 1 P.2d 105, 108. This court did indeed probably go farther in denying
certiorari in that case than in any other of its holdings on the point, and stated that it refused
to follow the California decisions holding a contrary view. But even the analogy of that case
lends much support to relators' contention here. There, COLEMAN, C. J., said: The question
before us seems to be a simple one.
a simple one. Did the lower court proceed regularly? The complaint charging contempt was
filed, citation issued, and the defendants appeared. The court had jurisdiction of the
subject-matter and of the defendants; hence it had authority to proceed. The emphasis upon
the fact that the statutory requirements had been followed is significant. The statutory
requirements in the present case must be found, not in the mere fact that notice of the motion
to vacate the default was given, but in sec. 8640, N.C.L., and in the many opinions of this
court outlining the requirements of that section. Defendants below, for reasons of their own,
deliberately ignored that section. Relators concede in their brief that the court would have had
full jurisdiction to exercise a legal discretion in entertaining and acting upon a motion of the
defendants to be relieved of their respective defaults on the ground of mistake, inadvertence,
surprise or excusable neglect. A proper showing of such statutory ground for relief would
have been comparable to the contempt complaint, citation, etc., in the Hinckley case and
would have given the court jurisdiction to decidewhether rightly or wrongly. Blundin v.
Blundin, 38 Nev. 212, 147 P. 1083, 1084, involved an appeal and not an application for
certiorari. Yet this court there found in no uncertain terms that the setting aside of a decree of
divorce on the basis of a private letter received by the judge of which no notice was given to
the parties was found to have no legal basis upon which [the] order can be sustained,
although it might have been sustained had it been based upon the statutory ground of
mistake, inadvertence, surprise, or excusable neglect.
The prevailing opinion also discusses Yowell v. District Court, 39 Nev. 423, 159 P. 632,
which held that as mandamus is the proper remedy to compel a lower tribunal to entertain
jurisdiction (where it has erroneously refused to do so), so certiorari is proper to review an
erroneous assumption of jurisdiction. The Yowell case cites with approval Hoffman v.
Lewis, 31 Utah 179, S7 P.
case cites with approval Hoffman v. Lewis, 31 Utah 179, 87 P. 167, holding that a lower
tribunal proceeding to try an appeal where no appeal had been taken as required by law would
be halted by certiorari. I think that is the situation that confronts us here.
In Floyd v. District Court, 36 Nev. 349, 135 P. 922, 923, 4 A.L.R. 646, the district court
had granted a motion to dismiss an appeal from a justice's court and the petitioners sought
mandamus to compel the district court to take cognizance and jurisdiction of the said case
and try and determine the same on its merits. The respondents insisted that even if the
dismissal was error, still it was within the exercise of jurisdiction and that mandamus would
accordingly not lie. The question was considered at great length by McCarran, J., speaking for
the court, and by Norcross, J., in his concurring opinion. The former said:
While it may be said that in cases of this character the lower court had jurisdiction to
grant or deny a motion to dismiss, nevertheless that court could not refuse to hear a matter
upon its merits when it was regularly before it for that purpose, nor could it divest itself of
jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily
saying that it had the right to proceed.
The latter in concurring said:
As we said in the recent case of Gamble v. Silver Peak Co. Mines, 35 Nev. [319] 326,
133 P. 936: It is the primal duty of all courts to keep within their jurisdiction. Whenever a
court takes any affirmative action, there is an implied adjudication that it has jurisdiction.'
Without conflict of authority, it is settled that when an inferior court erroneously
determines that it has jurisdiction, its judgments and orders will be set aside by the higher
courts.
See, also, Radovich v. Western Union Tel. Co., 36 Nev. 341, 135 P. 920, 136 P. 704,
which immediately followed the Floyd case and, on certiorari, annulled an order striking out
a cost bill, although the court said: "Unquestionably, a court has jurisdiction to strike out
a cost bill not filed within the time allowed by law, but whether an order, made upon
motion duly noticed, striking out a cost bill duly filed, is in excess of jurisdiction so that
the same may be annulled on certiorari is not so clear."
striking out a cost bill, although the court said: Unquestionably, a court has jurisdiction to
strike out a cost bill not filed within the time allowed by law, but whether an order, made
upon motion duly noticed, striking out a cost bill duly filed, is in excess of jurisdiction so that
the same may be annulled on certiorari is not so clear. In the Floyd case the court
undoubtedly had jurisdiction to entertain a motion to dismiss the appeal, and in the Radovich
case the court had undoubted jurisdiction to entertain a motion to strike the cost bill as not
timely filed. The first case was an erroneous determination that the court had no jurisdiction.
The second was an erroneous assumption of jurisdiction. The one order was annulled by
mandamus, the second by certiorari. Both cases are authority for the issuance of the writ in
the instant case.
To deny the motion to quash would not necessarily prevent the trial of the main case on
the merits. I would deny the motion to quash and would annul the order setting aside the
defaults, but without prejudice to the right of the district court to entertain an application of
the defendants below for leave to present a motion to be relieved of their defaults on the
statutory grounds provided in sec. 8640, N.C.L., and thereafter to entertain such motion when
presented and to grant or deny the same in the exercise of its sound judicial discretion. If the
court should consent to hear the new application and should upon such hearing grant the
same, the defendants would then be in position to assert their defenses to the action. The
effect of the majority ruling vacating the writ of certiorari heretofore issued is to give the
defendants in the main action a temporary shelter in a house built upon the sands of patent
error which will, if defendants prevail below, be washed away by the waters of a future
appeal, thus leaving the whole thing to be done over again.
As the majority opinion holds that the district court did not exceed its jurisdiction, such
opinion does not discuss the other points raised by the motion to vacate the writ.
discuss the other points raised by the motion to vacate the writ. If any other remedy is open to
relators, none such has been suggested in the briefs or oral argument of respondents or
defendants. It is obvious, also, that the remedy of appeal would not be adequate.
June 29, 1949.
Per Curiam:
Rehearing denied.
____________
66 Nev. 164, 164 (1949) Davis v. Davis
MORRIL W. DAVIS, Appellant, v. NAN K.
DAVIS, Respondent.
No. 3565
June 17, 1949. 207 P.2d 240.
Divorce.
An order refusing to set aside defendant's default in divorce action was not appealable. N.C.L.1929,
sec. 9385.60.
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge.
Action for divorce and disposition of community property by Nan K. Davis against Morril
W. Davis. Judgment was entered granting plaintiff a divorce, defendant's motion to set aside
his default was denied, and defendant files notice of appeal. Appeal dismissed.
Jones, Wiener & Jones, of Las Vegas, for Appellant.
Lewis, Hawkins & Cannon, of Las Vegas, for Respondent.
OPINION
On February 26, 1948, respondent filed in the Eighth judicial district court in and for the
county of Clark, an action against appellant seeking a divorce and disposition of
community property.
66 Nev. 164, 165 (1949) Davis v. Davis
action against appellant seeking a divorce and disposition of community property.
Process was served upon appellant at Las Vegas, Nevada, on March 3, 1948, and on
March 15, 1948 his default was entered for failure to appear, answer or otherwise plead to the
complaint.
Judgment was rendered on June 25, 1948, granting a divorce to respondent and disposing
of community property.
Appellant, on June 24, 1948, filed in said cause a motion to set aside his default upon
ground of excusable neglect. This motion was heard and denied by the court on June 24,
1948.
On September 9, 1948 appellant filed his notice of appeal in said action. The notice of
appeal purports to bring to this court for review an order made and entered in the above
entitled action on June 24, 1948 * * * denying defendant's motion to set aside default entered
against defendant.
We have for determination a motion to dismiss the appeal tendered by respondent, based
upon the ground of absence of statutory authority conferring jurisdiction on this court to
review an appeal from an order denying motion to set aside default.
The motion to dismiss must be granted. Section 9385.60, N.C.L.1929, designates the
judgments and orders from which an appeal may be taken. There exists no statutory authority
conferring the right to appeal from an order refusing to set aside a default, and such is the
order presented by this appeal. Johns-Manville, Inc., v. Lander County, 48 Nev. 244, 229 P.
387, 234 P. 518; Perry v. Edmonds, 59 Nev. 60, 84 P.2d 711.
Appeal dismissed.
Horsey, C. J., and Badt, J. concur.
____________
66 Nev. 166, 166 (1949) Culinary Workers v. District Court
THE STATE OF NEVADA, on the Relation of CULINARY WORKERS UNION, LOCAL
NO. 226, ALLEN SHORR, AKA JOHN DOE I AND VIVIAN SHORE, AKA JANE
DOE I, Relators, v. EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in
and for the County of Clark, and the HONORABLE A. S. HENDERSON, Judge of
Department No. 2, Thereof, Respondents.
No. 3561
June 24, 1949. 207 P.2d 990.
1. Prohibition.
Writ of prohibition is appropriate as a remedy to restrain proceedings in an inferior court, which are
not within jurisdiction of that court. N.C.L.1929, sec.9255.
2. Prohibition.
Where union and two members were threatened with punishment for contempt of temporary
restraining order prohibiting peaceful picketing of an employer's premises, and they contented that order
was unconstitutional, writ of prohibition to restrain enforcement of order was a proper remedy if in fact
order was not valid. N.C.L.1929, sec. 9255; Const.Nev. art. 1, sec. 9; U.S.C.A.Const. Amends. 1,
14.
Peaceful picketing is a lawful and reasonable method which can be used by a labor organization to
disseminate its ideas and beliefs to the general public, and is entitled to the same protection guaranteed to
all forms of free speech by federal and state constitutions. Const.Nev. art. 1, sec. 9; U.S.C.A. Const.
Amends. 1, 14.
The constitutional right to free speech is not limited to public addresses, pamphlets or words of an
individual, but embraces every form and manner of dissemination of ideas held by the people that appear
best fitted to bring such ideas and views to attention of the general populace and to attention of those
most concerned with them. U.S.C.A.Const. Amends. 1, 14.
To justify restraint on exercise of free speech, it is not enough that such exercise may injure a
business, or that issues presented are conflicting or exaggerated, since no restraint can be imposed in
absence of clear and present danger of serious injury to society as a whole. U.S.C.A.Const. Amends. 1,
14.
Where right to picket is abused, as where activity is performed in a violent manner exceeding bounds
of peaceful persuasion, right may be restrained without violating rights of free speech and
assembly.
free speech and assembly. Const.Nev. art 1, sec.9; U.S.C.A, Const.Amends. 1, 14.
7. Injunction.
Where union through agents demanded recognition as bargaining representative and insisted that
closed shop contract be signed by employer, peaceful picketing by union could not be restraint on
grounds that union did not represent employees and that there was no real dispute between employers and
employees.
Where issue is solely one of application of a proposed restraint upon peaceful picketing, relative
merits of claims of parties or probable truthfulness of slogans and signs used is immaterial short of
showing substantial danger since no restraint upon right to speak freely can be imposed unless a clear and
present danger exists. Const.Nev. art 1, sec 9; U.S.C.A.Const. Amends. 1, 14.
Employers were not entitled to injunction against peaceful picketing because unfair sign used on
picket line by union to whom employers refused to give closed shop contract was supposedly untruthful
since quoted word expressed mere opinion, and hence was a proper exercise of the right of free speech.
Const.Nev. art. 1, sec.9; U.S.C.A.Const. Amends. 1, 14.
10. Statutes.
Statute must be construed with proper regard for legislative intent; and in process of interpretation,
both express terms and legislative history underlying statute must be considered to arrive at proper
construction of meaning and purpose.
11. Master and Servant.
The statute making it unlawful for any person or corporation to enter into agreement under which
employee of such party as condition of employment shall agree not to become or continue a member of a
labor organization, or shall agree to become or continue such a member, prohibits the yellow-dog
contract, but does not prohibit union security agreements, such as closed shop agreements with
employers, obtained through collective bargaining. N.C.L.1929, sec. 10473.
12. Injunction.
Peaceful picketing of drug stores by members of union that did not represent employees, after
employer refused to enter into closed shop agreement was not illegal under the statute assuring right to
representation and collective bargaining. N.C.L.1929, sec. 2825.32.
13. Conspiracy.
Peaceful picketing of drug stores by members of union that did not represent employees after
employer refused to enter into contract for closed shop did not violate the statute dealing with criminal
conspiracy. N.C.L.1929, sec. 10061.
14. Administrative Law and Procedure. Master and Servant.
A private party cannot procure an injunction against unfair labor practices either in a federal or state
court under provisions of the labor management relations act. National Labor Relations Act, secs. 1 et
seq., 14(b), as amended by Labor Management Relations Act of 1947, 29 U.S.C.A. secs. 141 et seq.,
164(b).
15. Injunction.
Where no bond or undertaking was filed with district court or entered by it as required by statute
before issuance of purported temporary order restraining peaceful picketing, court was without power to
punish union members for alleged contempt for violation of purported order, and fact that bond was
procured about time order was issued and was later filed under nunc pro tunc order could not cure defect.
N.C.L.1929, sec. 8696.
Original proceeding by the State of Nevada on the relation of Culinary Workers Union,
Local No. 226, Allen Shorr, also known as John Doe I, and Vivian Shorr, also known as Jane
Doe I, against the Eighth Judicial District Court of the State of Nevada, in and for the County
of Clark, and the Honorable A. S. Henderson, Judge of Department No. 2 thereof, for a writ
of prohibition directing respondents to refrain from further proceeding regarding an alleged
contempt of a purported temporary order restraining peaceful picketing. Writ granted.
Robert W. Gilbert, of Los Angeles, Cal., and John W. Bonner, of Las Vegas, for Relators.
Morse & Graves, of Las Vegas, and Brown & Wells, of Reno, for Respondents.
OPINION
The relators seek a writ of prohibition directing the respondent Eighth judicial district
court in and for the county of Clark, to desist and refrain from taking further proceedings
regarding an alleged contempt of a purported temporary restraining order previously
issued by that court.
county of Clark, to desist and refrain from taking further proceedings regarding an alleged
contempt of a purported temporary restraining order previously issued by that court. On
September 9, 1948, a complaint was filed by the White Cross Drug Co. and the Save-Rite
Drug Stores of Las Vegas against the Culinary Workers Union Local No. 226 and the Retail
Clerks Union Local No. 1536, alleging that the unions through their agents had demanded
recognition as bargaining representatives and insisted that a contract containing, among other
things, closed shop provisions be signed by the drug stores; that the unions did not
represent a majority of the employees and that the employees did not wish to join a union;
and that the unions then established a picket line around the stores. The complaint prayed for
damages and for a restraining order and injunction against further picketing.
The defendant unions demurred to the complaint, chiefly upon the grounds that no cause
of action was stated and that the district court had no jurisdiction to issue a restraining order
against peaceful picketing. The district court overruled the demurrer, and upon the
show-cause hearing issued a restraining order against the unions.
1

Approximately two weeks later the district court ordered the culinary workers union and
two individuals, Allen Shorr and Vivian Shorr, to show cause why they should not be
punished for contempt of the restraining order.
____________________

1
It Is Hereby Ordered Adjudged and Decreed that during the pendency of this action, or until the final
determination thereof, or until the Court shall otherwise order, the defendants, and each of them, the agents,
servants, employees and attorneys of defendants, and each of them, be, and they are hereby enjoined and
restrained from picketing and maintaining pickets and signs at the business establishment of the plaintiff White
Cross Drug Co., a corporation, situate at 201 Fremont Street, Las Vegas, Clark County, Nevada, and extending
south from Fremont Street on Second Street, Las Vegas, Nevada, and into the alley running east and west
between Fremont Street and Carson Street, Las Vegas, Nevada; and the business establishment of the plaintiff
Save-Rite Drug Stores, Inc., a corporation, situate at 215 Fremont Street, Las Vegas, Clark County, Nevada, and
extending into the alley running east and west between Fremont Street and Carson Street, Las Vegas, Nevada;
and from in any manner whatever impeding, harassing, annoying, threatening, intimidating or interfering with
any person or persons
ordered the culinary workers union and two individuals, Allen Shorr and Vivian Shorr, to
show cause why they should not be punished for contempt of the restraining order. This
show-cause order was based upon an affidavit made by one T. H. Brandt as vice president of
the White Cross Drug Store, alleging that the union acting by and through the Shorrs had
picketed in front of the drug store by selling copies of a newspaper, called the Nevada State
Labor News. In substance, the affidavit charged that the newspaper carried a front page story
to the effect that the drug store had discharged five employees because they were union
members and was unfair to organized labor; that in hawking their papers the two pickets
had shouted headlines to this effect to passers-by on the street.
Relators instituted the present proceedings petitioning this court to prohibit the district
court below from enforcing the restraining order, contending that the order is unconstitutional
because it denies the right of relators to peacefully picket and to assemble to present their
grievances, under the First and Fourteenth Amendments to the Constitution of the United
States and under the Constitution of the State of Nevada, and that the district court acted
without jurisdiction at the outset by granting the restraining order.
1. The writ of prohibition is unquestionably appropriate as a remedy to hold proceedings in
an inferior court which are not within the jurisdiction of such court; Section 9255,
N.C.L.1929; McComb v. Fourth Judicial District Court, 36 Nev. 417, 428, 136 P. 563;
Walser v. Moran, 42 Nev. 111, 173 P. 1149, 180 P. 492; Public Service Commission v.
Eighth Judicial Dist. Court, 61 Nev. 245, 123 P.2d 237. And, when proceedings bear the
threat of imprisonment of an individual for contempt of an invalid order of a lower court
which order denied him constitutional and fundamental rights, the writ of prohibition is as
proper as would be habeas corpus were he already in custody. Habeas corpus and
certiorari have frequently been employed to attack an unconstitutional statute or decree
limiting peaceful picketing, since "One cannot be punished for contempt for violating an
order which a court has no authority to make," Ex parte Henry et al., Tex.Sup.,
____________________
transacting business with the plaintiffs, or either of them; and from in any manner whatever impeding harassing,
annoying, threatening, intimidating, or interfering with any of the employees of the plaintiffs entering or leaving
the premises of the plaintiffs or either of them, * * *.
for contempt of an invalid order of a lower court which order denied him constitutional and
fundamental rights, the writ of prohibition is as proper as would be habeas corpus were he
already in custody. Habeas corpus and certiorari have frequently been employed to attack an
unconstitutional statute or decree limiting peaceful picketing, since One cannot be punished
for contempt for violating an order which a court has no authority to make, Ex parte Henry
et al., Tex.Sup., 215 S.W.2d 588, 597, (habeas corpus). In re Blaney, 30 Cal.2d 643, 184 P.2d
892, (habeas corpus). Fortenbury v. Superior Court, 16 Cal.2d 405, 106 P.2d 411, (certiorari).
As a matter of simple justice, it has always been considered preferable to arrest proceedings
before a man has been unlawfully imprisoned, then to release him after he has been subjected
to the indignities of custody, and the writ of prohibition was designed to serve this purpose.
2. Therefore the remedy selected by relators is proper under these circumstances, if, in fact,
the restraining order here in question is not valid.
Relators contend that the right of all persons to assemble and to make known their ideas
and grievances is a fundamental element in the structure of our form of government and that
peaceful picketing is an exercise of this right. Respondents concede this to be true, but argue
that the picketing in the instant case was not truthful and not for a legitimate purpose because
the picketed employers had no dispute with their employees or the union, and the union did
not represent the employees working in the store. Respondents further contend that the
picketing was unlawful because, allegedly, the purpose of the picket line was to force them to
sign a so-called closed shop agreement, which they claim to be prohibited by section 10473
of the Nevada Compiled Laws 1929. In essence, this argument is based upon the theory that
under the circumstances, even peaceful picketing is not a legitimate exercise of the
fundamental right of free speech, and may be restrained.
The record shows and it is conceded by all parties that the picket line was peaceful, quiet
and orderly at all times, and without violence, so the only major issue before this court is
whether there was in this case any other abuse of the rights of speech and assembly as to
warrant the finding below that this picket line was wrongful.
3. This court early announced that peaceful picketing was a lawful and reasonable method
which could be used by a labor organization to disseminate its ideas and beliefs to the general
public, and that such picketing was entitled to the same careful protection as that guaranteed
to all forms of free speech by the constitution of the United States and of the State of Nevada.
That decision invalidated an anti-picketing ordinance, declaring that its sections constituted
a sweeping prohibition of any form of picketing, irrespective of its nature, purpose or
number of pickets, and constitute an interdiction of all activities and free speech sought to be
exercised in the form of peaceful picketing, and were unconstitutional and void, in that they
invade the constitutional guaranties of the due process of law clauses of the federal and state
constitution, and of section 9 of article 1 of the state constitution guaranteeing free speech and
forbidding the state to pass any law to restrain or abridge the liberty of speech. City of Reno
v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 1000, 125 A.L.R. 948.
The supreme court of the United States in Thornhill v. Alabama, 310 U.S. 88, at page 102,
60 S.Ct. 736, at page 744, 84 L.Ed. 1093, involving a similar statute set forth the basic rule
that, In the circumstances of our times the dissemination of information concerning the facts
of a labor dispute must be regarded within that area of free discussion that is guaranteed by
the Constitution, and that the safeguarding of these means (picketing) is essential to the
securing of an informed and educated public opinion with respect to a matter which is of
public concern.
4. The constitutional right to free speech is not limited only to public addresses or
pamphlets, or the words of some individual. It embraces every form and manner of
dissemination of the ideas held by our people that appear best fitted to bring such ideas and
views to the attention of the general populace, and to the attention of those most concerned
with them. Peaceful picketing of an enterprise or business is the primary means by which
laboring men make known their grievances. It is an appropriate mode of expression of views
and opinions that is vital to their legitimate interests. Under the first and fourteenth
amendments to the constitution labor speech, like the expressions of businessmen, farmers,
educators, political figures, religionists and all other citizens, must be given unfailing and
unwavering protection by this court. These great constitutional guaranties of free speech are
but a mantle of protection thrown around our basic concept of individual liberty to shelter the
people from the chilling blasts of those who oppose their freedom and would take away their
rights. It would be unthinkable that we should tear it away. Even greater care must be taken
that tiny rents are not allowed to accumulate in the fabric unnoticed and unrepaired lest one
day we should find the entire mantle rotted away.
5. The right to peaceful picketing must not be circumscribed by vague and ephemeral
notion of legitimate and illegitimate purposes for which it may or may not be exercised.
Free speech, which includes the right to peaceful picketing, must be given the greatest
possible scope and have the least possible restrictions imposed upon it, for it is basic to
representative democracy. Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430. It is
not enough that the exercise of free speech may injure a business, or that the issues presented
are conflicting or exaggerated, for no restraint can be imposed short of clear and present
danger of serious injury to society as a whole. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct.
736, 84 L.Ed. 1093; Schenck v. United States, 249 U.S. 47, 39 S.Ct.
v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 S.Ct. 470. In Bridges v. California, 314 U.S.
252, 62 S.Ct. 190, 194, 159 A.L.R. 1346, upholding the right of both a controversial labor
leader and an influential daily newspaper to comment upon undecided and pending cases, the
United States Supreme Court said: What finally emerges from the clear and present danger'
cases is a working principle that the substantive evil must be extremely serious and the degree
of imminence extremely high before utterances can be punished. Those cases do not purport
to mark the furthermost constitutional boundaries of protected expression, nor do we here.
They do more than recognize a minimum compulsion of the Bill of Rights. For the First
Amendment does not speak equivocally. It prohibits any law abridging the freedom of
speech, or of the press.' It must be taken as a command of the broadest scope that explicit
language, read in the context of a liberty-loving society, will allow.
And, in Thomas v. Collins, supra [323 U.S. 516, 65 S.Ct. 322], the supreme court
explained: * * * any attempt to restrict those liberties must be justified by clear public
interest, threatened not doubtfully or remotely, but by clear and present danger. The rational
connection between the remedy provided and the evil to be curbed, which in other contexts
might support legislation against attack on due process grounds, will not suffice. These rights
rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion
and persuasion, at appropriate time and place, must have clear support in public danger,
actual or impending. Only the gravest abuses, endangering paramount interests, give occasion
for permissible limitation. It is therefore in our tradition to allow the widest room for
discussion, the narrowest range for its restriction, particularly when this right is exercised in
conjunction with peaceable assembly. It was not by accident or coincidence that the rights to
freedom in speech and press were coupled in a single guaranty with the rights of the
people peaceably to assemble and to petition for redress of grievances.
press were coupled in a single guaranty with the rights of the people peaceably to assemble
and to petition for redress of grievances. All these, though not identical, are inseparable. They
are cognate rights, cf. De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed.
278, and therefore are united in the First Article's assurance.
6. When the right to picket is abused as where this activity is performed in a violent
manner exceeding the bounds of peaceful persuasion, it may be restrained. Milk Wagon
Drivers Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 85 L.Ed. 836, 132
A.L.R. 1200; Allen-Bradley Local No. 1111 v. Wisconsin Employment Relations Board, 315
U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154.
7. The record in the instant case, as we have said, shows clearly that there was no violence.
The contention of respondents that the restraining order was proper because the union did not
represent the employees of the store and because there was no real dispute between the
employer and his employees, cannot be maintained. In Senn v. Tile Layers Protective Union,
301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, which we followed in the City of Reno case,
supra, the supreme court of the United States explicitly approved the action of the courts of
Wisconsin in permitting the Tile Layers Union to picket a tile layer who insisted on
performing his own work and refused to hire a union employee. This doctrine that stranger
picketing is a valid form of free speech was reaffirmed by the United States Supreme Court in
American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 570, 85 L.Ed. 855,
where the court said: The scope of the Fourteenth Amendment is not confined by the notion
of a particular state regarding the wise limits of an injunction in an industrial dispute, whether
those limits be defined by statute or by the judicial organ of the state. A state cannot exclude
workingmen from peacefully exercising the right of free communication by drawing the
circle of economic competition between employers and workers so small as to contain
only an employer and those directly employed by him."
right of free communication by drawing the circle of economic competition between
employers and workers so small as to contain only an employer and those directly employed
by him.
Respondents cite Carpenters and Joiners Union v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct.
807, 86 L.Ed. 1143, for the proposition that peaceful picketing can be enjoined when it is
unlawful. That case is not in point here, however, as it involves picketing which was outside
the industrial nexus of the dispute, while here the picketing was against the very
establishment that the union considered to be unfair. Bakery and Pastry Drivers Local v.
Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178. The interdependence of economic interest
of all engaged in the same industry has become a commonplace. American Steel Foundaries
v. Tri-City Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360. The
right of free communication cannot therefore be mutilated by denying it to workers, in a
dispute with an employer, even though they are not in his employ. Communication by such
employees of the facts of a dispute, deemed by them to be relevant to their interests, can no
more be barred because of concern for the economic interest against which they are seeking
to enlist public opinion than could the utterance protected in Thornhill's case. American
Federation of Labor v. Swing, supra.
8, 9. We are also urged by respondents to refuse prohibition because the unfair sign used
on the picket line was supposedly untruthful. Where the issue before this court is solely one
of the application of a proposed restraint upon peaceful picketing, the relative merits of the
claims of the parties or the probable truthfulness of the slogans and signs used is immaterial
short of a showing of substantial danger. The principle that there shall be no previous
restraint upon the exercise of the right to speak freely is basic to that right. Near v. Minnesota,
283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, and there can be no restraint unless a "clear
and present danger" exists.
and there can be no restraint unless a clear and present danger exists. Thomas v. Collins,
Thornhill v. Alabama, and Schenck v. United States, supra. To use loose language or
undefined slogans that are part of the conventional give-and-take of our economic and
political controversieslike unfair' or fascist'is not to falsify facts. Cafeteria Employees
Union v. Angelos, 320 U.S. 393, 64 S.Ct. 126, 127, 88 L.Ed. 58. Such normal statements or
claims which in general convey the idea that a business is unfair' to organized labor are no
more than statements of opinion and are not subject to judicial restraint. Cafeteria Employees
Union v. Angelos, supra.; Montgomery Ward & Co. v. McGraw-Hill Publishing Co., 7 Cir.,
146 F.2d 171, 176; Park & Tilford Import Corp. v. International Brotherhood of Teamsters,
27 Cal.2d 599, 613, 165 P.2d 891, 162 A.L.R. 1426. The constitutional right to free speech
and to peaceful picketing is not to be taken away from one party to an industrial squable
simply because the other party objects to his beliefs or to the way that he expresses them, nor
because that other party is sustaining economic loss by what he deems to be an annoying use
of a picket line or an inaccurate statement of facts. Just as the judiciary cannot validly restrict
expression of grievances by union members to the small area of employers for whom they
work, a court may also not require workers to couch their views and opinions in legal, correct
and accurate words, for their speech is aimed at persuasion, and persuasion demands at times
artful, at times flamboyant, and at times even exaggerated language.
The chief contention of respondents and more particularly the employers who are the real
parties in interest here, is that the picketing by the union was for the purpose of compelling
the drug store to sign a closed shop contract and thereby force all employees of the store to
become unwilling members of the union. This, they say, is conduct that is unlawful under the
1911 act, sec.
10473, N.C.L.
2
and since it is therefore not a proper exercise of free speech, may be
restrained.
10. It is evident from the transcript of the oral opinion below that the district court was
convinced that no demand had actually been made for a closed shop and that such a
demand was not an issue in the case. The unions insist that the sole object of the picketing
was to persuade or induce the nonunion workers to join these labor organizations. But even
if respondents were correct in their contention that the sole purpose of the picketing by the
union was to compel acceptance of a closed shop we are not persuaded that this demand
was made unlawful under the 1911 act. Respondents argue strongly that the terms of this law
which prohibit any agreement by which an employee or prospective employee promises to
become or continue to be a member, or not to become a member of a labor organization,
preclude and make unlawful any closed shop or other union security agreement in this state.
They compare the law with recent statutory enactments of North Carolina, Nebraska, and
Arizona, which have been upheld by the supreme court of the United States in the so-called
Right to Work cases. Lincoln Federal Labor Union et al., v. Northwestern Iron and Metal
Company et al., 335 U.S. 525, 69 S.Ct. 251, 93 L.Ed. ___, and American Federation of Labor
v. American Sash & Door Co. et al., 335 U.S. 538, 69 S.Ct. 258, 93 L.Ed. ___, and conclude
that because of a purported similarity of language our law must also exclude the closed
shop. This does not necessarily follow, since our statute must be construed by this court
with proper regard for the legislative intent.
____________________

2
Sec. 10473, N.C.L.1929,
An Agreement To Join Or Not To Join Labor Organization Unlawful, When 527. It shall be unlawful for
any person, firm or corporation to make or enter into any agreement, either oral or in writing, by the terms of
which any employee of such person, firm or corporation, or any person about to enter the employ of such person,
firm or corporation, as a condition for continuing or obtaining such employment, shall promise or agree not to
become or continue a member of a labor organization, or shall promise or agree to become or continue a
member of a labor organization.
does not necessarily follow, since our statute must be construed by this court with proper
regard for the legislative intent. This court is not bound to and cannot blindly apply the
language of this long-standing state law without regard for the conditions which originally
gave rise to its enactment. To do so would read into the law aims and purposes never
considered or intended by the legislature that enacted the statute. In the process of statutory
interpretation, both the express terms and the legislative history underlying the statute must
be considered to arrive at the proper construction of its meaning and purpose.
The development of collective bargaining in industrial relations in this country came with
the growth of the labor movement and the independent unions. Certain employers opposed
this development with many different tactics. One of the earliest methods of opposition was
to require employees to sign an agreement that he would not become a member of a labor
union in the course of his employment. These contracts incurred the widespread enmity of
organized labor and were called yellow-dog contracts. Another device used by the
employers to defeat legitimate collective bargaining was the establishment of so-called
company unions which were dominated and controlled by the employer. Both of these
methods achieved the desired result of minimizing collective demands by the workers and
preventing them from belonging to independent unions. In the Lincoln Federal Labor Union
case, supra, Mr. Justice Black summarized this period of labor-management relations, when
he said [335 U.S. 525, 69 S.Ct. 256]: There was a period in which labor union members who
wanted to get and hold jobs were victims of widespread employer discrimination practices.
Contracts between employers and their employees were used by employers to accomplish this
anti-union employment discrimination. Before hiring workers, employers required them to
sign agreements stating that the workers were not and would not become labor union
members.
to sign agreements stating that the workers were not and would not become labor union
members. Such anti-union practices were so obnoxious to workers that they gave these
required agreements the name of yellow dog' contracts. This hostility of workers also
prompted passage of state and federal laws to ban employer discrimination against union
members and to outlaw yellow dog contracts.
The statutes referred to by Mr. Justice Black were similar in form to the 1911 act here in
question. None of these state laws purported to invalidate the closed shop or union security
agreement. They were passed at the behest of organized labor for the express purpose of
promoting legitimate collective bargaining on equal terms, and of prohibiting the yellow-dog
contracts, entered into by an employer possessed of predominant economic strength and an
individual worker who was helpless to resist such an arrangement preventing him from
joining a union of his choice. These statutes also provided, as does ours, that an employee
could not be compelled to join a labor organization. The circumstances behind the enactment
of these laws show conclusively that the purpose of these latter provisions was to protect
employees from being forced to join a company dominated and controlled union as a
condition of employment. These provisions were never intended to forbid union security
arrangements but were designed to promote true collective bargaining with representative
bona fide labor organizations and to prevent the false, misleading and ineffective
representation that was a distinguished feature of the employer dominated company union.
The supreme court of the State of California was faced with this same problem of statutory
construction in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403, 407,
and in that case reached the conclusion that this type of statute was not intended to outlaw
union security agreements reached by collective bargaining.
bargaining. That court pointed out: * * * the clause to join or to remain a member of a
labor organization' may not reasonably be construed as prohibiting a promise to join an
independent labor union. Although the term labor organization,' taken by itself, is broad
enough to refer to either a company or an independent union, the purpose of the legislation
must be considered in arriving at a conclusion concerning its meaning. If the words are meant
to designate an independent union, then it is against public policy for an employee or
prospective employee to join such an organization, which is a result exactly contrary to the
declaration of policy in section 923. * * * These and other considerations render untenable
the contention that union shop contracts in California are void under section 921. As has
already been noted, the usual company union contract is an individual agreement between the
employer and an employee, whereas the union shop contract is an agreement running between
the employer and the union as an entity.
11. The Nevada act here in question makes certain agreements unlawful when entered into
with an employee or person about to enter the employ of another and is therefore aimed
expressly at individual agreements. It does not mention or prohibit collective agreements or
agreements with labor organizations as such, and we conclude as did the California court in
the Shafer case, that this law was not enacted for the purpose of making collective union
security agreements unlawful.
Respondents have cited the so-called Right to Work cases to support their contention
that the 1911 act is a valid enactment prohibiting closed shop agreements. In these cases,
however, the supreme court clearly distinguishes the long-standing anti-yellow-dog contract
laws and the very recent legislations involved in the cases. After discussing the history of the
anti-yellow-dog contract legislation, Mr. Justice Black, in upholding the recent laws
concluded that: "Just as we have held that the due process clause erects no obstacle to
block legislative protection of union members, we now hold that legislative protection can
be afforded non-union workers."
recent laws concluded that: Just as we have held that the due process clause erects no
obstacle to block legislative protection of union members, we now hold that legislative
protection can be afforded non-union workers.
From our study of the legislative history and the background of the 1911 act it is plain to
us that this act was enacted to prohibit the yellow-dog type of contract and to protect
workers from compulsion to join company dominated unions, but that the law does not by its
terms outlaw union security agreements obtained through the process of collective
bargaining.
If the opponents of union security agreements wish to have them declared unlawful they
should address their demands to the legislature for a clear and unmistakable mandate and not
appeal to this court for such declaration under color of a law that was never intended to fulfill
that purpose.
12, 13. Section 2825.32 assuring the right to representation in collective bargaining
negotiations, and section 10061 of the N.C.L. dealing with criminal conspiracy, were cited to
this court by respondents as making the acts of relators unlawful, but neither of these laws
were strenuously urged in brief or oral argument. Neither of these laws can be relied upon to
restrain peaceful picketing of the type here in question, and if they were to be so construed,
such application would be an unconstitutional deprivation of the rights of speech and
assembly.
14. Many pages of briefs of relators and respondents were devoted to a discussion of the
jurisdiction of the district court to restrain relators under the provisions of section 14(b) of the
Labor Management Relations Act 1947, also known as the Taft-Hartley Act, 29 U.S.C.A. sec.
141 et seq. It is not necessary for us to decide the issue in this proceeding, holding as we do
that the 1911 act was enacted solely as an anti-yellow-dog contract law, and does not
invalidate union security agreements. In any event, the law is well settled that a private party
cannot procure an injunction either in a federal or state court under the provisions of the
Labor Management Relations Act.
private party cannot procure an injunction either in a federal or state court under the
provisions of the Labor Management Relations Act. Amazon Cotton Mill Co. v. Textile
Workers Union of America, 4 Cir., 1948, 167 F.2d 183.
15. Furthermore, with regard to the claim of lack of jurisdiction the record below shows
that no bond or undertaking was filed with the court and entered by it as required by section
8696 N.C.L.1929. Because of this omission, the district court was absolutely without legal
power to punish relators under the purported restraining order. We have previously held, that,
Where a bond is required by statute before the issuance of an injunction, it must be exacted
or the order will be absolutely void. Shelton v. Second Judicial District Court, 1947, 64 Nev.
487, 185 P.2d 320, 323. The law requires that the bond be filed before the order is made, and
the fact that the bond was procured about the time the order was issued and was later filed
under a nunc pro tunc order does not cure the defect.
The picket line established by the union in this case was both peaceful and lawful. It was a
rightful exercise of the cognate rights of free speech and peaceable assembly and it could not
constitutionally be restrained or enjoined without abridging the guaranties of the first and
fourteenth amendments to the constitution of the United States, and article I, section 9 of the
constitution of the State of Nevada. The restraining order issued by the court below cannot be
upheld or enforced, and relators here cannot be punished under its purported authority.
The writ of prohibition is herewith granted. Let the writ issue as prayed for.
Horsey, C. J., concurs.
Badt, J. (dissenting):
I dissent. In my opinion the picketing was properly enjoined because its admitted objective
was to compel a violation of the statutes of this state.1 The picketing was accomplished
by two pickets, sometimes three, patrolling the premises around the stores, with placards
reading "Unfair to organized laborCentral Labor Council A. F. of L."
a violation of the statutes of this state.
1
The picketing was accomplished by two pickets,
sometimes three, patrolling the premises around the stores, with placards reading Unfair to
organized laborCentral Labor Council A. F. of L. The employees of both drug stores were
and had been employed without regard to any affiliation with any labor union. There was no
dispute between either employer and its employees as to wages, hours, conditions of
employment, or otherwise.
Under these conditions both employers were approached by representatives and agents of
the unions and the latter were permitted to interview the employees during working hours.
The purpose of these interviews was to persuade or induce the employees to join the union.
Up to the time of the picketing and the initiation of the contempt proceedings neither the
unions nor their representatives had been authorized by the majority of the employees of
either drug store to act as the spokesman, representative or bargaining agent of either group of
employees. It is not contended that the picketing was not a violation of the injunction, but it is
asserted that the district court was without jurisdiction to issue the injunction and is therefore
without jurisdiction to punish the relators for contempt for such violation.
____________________

1
Section 10473. Nevada Compiled Laws, appearing therein as sec. 527 of An Act concerning crimes and
punishments, and repealing certain acts relating thereto, approved March 17, 1911, and which appeared as sec.
6792 in the Revised Laws of Nevada of 1912, read as follows: It shall be unlawful for any person, firm or
corporation to make or enter into any agreement, either oral or in writing, by the terms of which any employee of
such person, firm or corporation, or any person about to enter the employ of such person, firm or corporation, as
a condition for continuing or obtaining such employment, shall promise or agree not to become or continue a
member of a labor organization, or shall promise or agree to become or continue a member of a labor
organization.
Section 2825.31, N.C.L., approved March 29, 1937, read in part as follows:
In the interpretation and application of this act, the public policy of this state is declared as follows:
Negotiations of terms and conditions of labor should result from
The district court did not make findings of fact, but following the submission of evidence
by both parties on the order to show cause rendered an oral opinion from the bench which
may be said to incorporate certain findings. The district court held that the picketing was
unlawful because its objective was to compel a violation of the statutes and declared policy of
the State of Nevada, making it unlawful for an employer to require an employee, as a
condition of employment, to agree to belong to a union. While the evidence is somewhat
conflicting as to the demands made upon the employers by the union representatives, Mr.
Thomas C. Hanley, secretary of the Clark County Central Labor Council, affiliated with the
American Federation of Labor, when asked upon cross examination what the purpose of the
picket line was, replied: To let the public in general know, the other labor organizations and
public, that the people employed were not members of a union, that the wages were not
standard, that the employers were not members of a union, of our union, that a contract had
been submitted and refused and the picket line was then put on. They were unfair to labor.
And Mr. Royalty, the business manager of the Culinary Workers Union, in testifying about
one of the meetings with the employer, said: * * * I understood from the line of
conversation it pertained mostly to the standard contract of the union."
____________________
voluntary agreement between employer and employees. Governmental authority has permitted and encouraged
employers to organize in the corporate and other forms of capital control. In dealing with such employers the
individual organized worker is helpless to exercise actual liberty of contract and to protect his freedom of labor,
and thereby to obtain acceptable terms and conditions of employment. Therefore, it is necessary that the
individual workman have full freedom of association, self-organization, and designation of representatives of his
own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the
interference, restraint or coercion of employers of labor, or their agents, in the designation of such
representatives or in self-organization or in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection.
In the case of both of the legislative acts referred to, a violation is declared to be a misdemeanor punishable
by fine and imprisonment.
the line of conversation it pertained mostly to the standard contract of the union. It was
further testified that the purpose of the picket line was to induce the employees to join the
union.
All emphasis in this opinion is supplied unless otherwise noted.
Clauses contained in the standard form of union contract, that is to say, the contract
between the employers and the union, include the following:
Sec. 1 Jurisdiction and Recognization: The Employer agrees to recognize the Union as
the sole collective bargaining agency for its employees working under the Union's jurisdiction
for the purpose of collective bargaining. It is further agreed by both parties thereto that this
agreement shall cover all working conditions, wages and hours of employment affecting the
employees working in the employer's establishment.
Sec. 2 Hiring: All employees, steady or extra, covered by this agreement shall be hired
only through the office of the Union, such employees shall be and remain in good standing in
the Union as a condition of employment and must obtain a work slip from the Union before
going to work.
If the Union is unable to supply satisfactory help to the employer, then the employer may
hire outside of the Union, providing such hired persons make application to join the Union
within seventy-two hours of the date of their employment and complete the same and be
initiated within a period of thirty (30) days from the date of employment.
The contentions of the relators and the conclusions reached by my learned brothers are tied
definitely to the theory that the picketing in question was an exercise of the right of free
speech and could not be lawfully enjoined. Neither the relators nor the majority of this court
concede any limitation to such theory, except possibly in the case of a clear and present
danger to the public peace.
public peace. That peaceful picketing is constitutionally protected from restraint, that
advertising a business as unfair to organized labor is privileged free speech and not subject to
injunction, that no federal or state law does or can confer jurisdiction upon the district court
to enjoin peaceful picketing are apparently deemed not subject to any exception growing out
of the unlawfulness of the objective of the picketing.
This dissenting opinion as originally drafted had recited the history of the rise,
development, extension and subsequent curtailment of the theory that picketing, as an adjunct
of free speech, could not be restrained.
2
Of whatever incidental value such history might
have been, I concluded that its inclusion in this opinion was not justified.
We start with the proposition that if the objective of the picketing was an unlawful one, it
could properly be enjoined without infringement of the constitutional guaranties of free
speech and free assembly.
____________________

2
In this state the absolute right of an employer for reasons good or bad, well or ill founded, or entirely trivial
and whimsical, to refuse to have business relations with any person or labor organization was first established
by Farrington, District Judge of the United States District Court for the District of Nevada, relying upon
Allgeyer v. Louisiana, 165 U.S. 578, 17 S.Ct. 427, 41 L.Ed. 832; Lochner v. New York, 198 U.S. 45, 25 S.Ct.
539, 49 L.Ed.937, 3 Ann.Cas. 1133; Gillespie v. People, 188 Ill. 176, 58 N.E. 1007, 52 L.R.A. 283, 80 Am.
St.Rep. 176; Adair v. United States, 208 U.S. 161, 28 S.Ct. 277, 52 L.Ed. 436. The Adair case theory was
carried out in Coppage v. Kansas, 1914, 236 U.S. 1, 35 S.Ct. 240, 59 L.Ed. 441, L.R.A.1915C, 960. As to the
discharging of an employee because of the latter's union affiliations, the theory was repudiated in Pennsylvania
R. Co. v. United States Railroad Labor Board, 261 U.S. 72, 43 S.Ct. 278, 67 L.Ed. 536; Texas &. N. O. R. Co.
v. Brotherhood of R. & S. S. Clerks, 281 U.S. 548, 50 S.Ct. 427, 74 L.Ed. 1034; Virginian R. Co. v. System
Federation No. 40, 300 U.S. 515, 57 S.Ct. 592, 81 L.Ed. 789; National Labor Rel. Board v. Jones & Laughlin
Steel Corp., 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352. The repudiation of the theory was later
applied also to hiring. Phelps Dodge Corp. v. National Labor Relations Board, 1941, 313 U.S. 177, 61 S.Ct.
845, 85 L.Ed. 1271, 133 A.L.R. 1217. The impact of the Clayton Act in 1914, c. 323, 38 Stat. 738, 29 U.S.C.A.
ch. 5, sec. 52, long
Our sole consideration then is the construction of sec. 10473, quoted in full in footnote
No. 1 and also quoted in the prevailing opinion. The majority adopt relators' oft repeated
characterization of this statute as one that simply outlaws yellow dog' contracts, and quote
Mr. Justice Black, in delivering the opinion of the court in the Lincoln Federal Labor Union
case and Whitaker v. North Carolina, 335 U. S. 525, 69 S.Ct. 251, 256, 93 L.Ed., as thus
defining the situation.
There was a period in which labor union members who wanted to get and hold jobs were
the victims of widespread employer discrimination practices. Contracts between employers
and their employees were used by employers to accomplish this anti-union employment
discrimination. Before hiring workers, employers required them to sign agreements stating
that the workers were not and would not become labor union members.
____________________
prior to the National Labor Relations Act of 1935, and the opinion of Mr. Chief Justice Taft in American Steel
Foundaries v. Tri-City Council, 1921, 257 U.S. 184, 42 S.Ct. 72, 66 L.Ed. 189, 27 A.L.R. 360, require
consideration. Even in N.L.R.B. v. Jones & Laughlin Steel Corp., supra, and kindred cases in the 1930's,
picketing had not yet been identified with the right of free speech. Then came Senn v. Tile Layers Union, 1937,
301 U.S. 468, 57 S.Ct. 857, 81 L.Ed. 1229, relied upon in the majority opinion. This was followed by Thornhill
v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093, and Carlson v. California, 310 U.S. 106, 60 S.Ct. 746, 84
L.Ed. 1104, both decided February 29, 1940. These cases left open the right of relief against picketing only in
cases of clear and present danger of destruction of life or property, or invasion of the right of privacy or breach
of the peace. Just prior to the Thornhill and Carlson cases this court, in 1939, decided City of Reno v. Second
Judicial District Court, 59 Nev. 416, 95 P.2d 994, 125 A.L.R. 948, striking down a city ordinance that
unqualifiedly prohibited all picketing. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 159 A.L.R. 1346;
Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, and Cafeteria Employees Union v. Angelos, 320
U.S. 293, 64 S.Ct. 126, 88 L.Ed. 58, further exemplified the free speech theory, which probably had reached its
height in American Federation of Labor v. Swing, 1940, 312 U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855. As this case
involved only peaceful persuasion disentangled from violence, it was distinguished from Milkwagon Drivers
Union v. Meadowmoor Dairies, 312 U.S. 287, 61 S.Ct. 552, 555, 85 L.Ed. 836, 132 A.L.R. 1200, decided the
same day.
Starting with the Meadowmoor case, where the picketing, though
members. Such anti-union practices were so obnoxious to workers that they gave these
required agreements the name of yellow dog' contracts. This hostility of workers also
prompted passage of state and federal laws to ban employer discrimination against union
members and to outlaw yellow dog contracts.
The Nevada statute, on the contrary, is clearly a nondiscrimination statute making it
unlawful for an employer to enter into an agreement whereby the employee shall promise
either to be a union man or a nonunion man. The North Carolina statute involved in the
Whitaker case reads as follows: Any agreement or combination between any employer and
any labor union or labor organization whereby persons not members of such union or
organization shall be denied the right to work for said employer, or whereby such
membership is made a condition of employment or continuation of employment by such
employer, or whereby any such union or organization acquires an employment monopoly in
any enterprise, is hereby declared to be against the public policy and an illegal
combination or conspiracy in restraint of trade or commerce in the State of North
Carolina."
____________________
peaceful in isolation, was part of a coercive thrust when entangled with acts of violence, and the implications
of Bakery and Pastry Drivers v. Wohl, 315 U.S. 769, 62 S.Ct. 816, 86 L.Ed. 1178, where the object of the
picketing was unlawful, we have Hotel and Restaurant Employees International Alliance v. Wisconsin
Employment Relations Board, 1942, 315 U.S. 437, 62 S.Ct. 706, 86 L.Ed.946, and Allen-Bradley Local v.
Wisconsin Employment Relations Board, 1942, 315 U.S. 740, 62 S.Ct. 820, 86 L.Ed. 1154, in both of which the
restraint of picketing was upheld because of its unlawful objective. On the same day was decided Carpenters and
Joiners Union of America v. Ritter's Cafe, 315 U.S. 722, 62 S.Ct. 807, 809, 86 L.Ed. 1143, restraining picketing
outside the economic context of the real dispute, and recognizing picketing as exertion of concerted pressure,
as a familiar weapon of industrial combat and similar characterizations. The court refused to transmute vital
constitutional liberties into doctrinaire dogma. This had been likewise recognized in the Wohl case in the
concurring opinion. The culmination of the limitations on the former virtually unlimited free speech theory is
found in A. F. of L. v. American Sash & Door Co., Lincoln Federal Labor Union v. Northwestern Iron & Metal
Co., and Whitaker v. North Carolina, 69 S.Ct. 251, 264, and Kovacs v. Cooper, 1949, 336 U.S. 771, 69 S.Ct.
448. James v. Marinship Corporation 1944, 25 Cal.2d 721, 155 P.2d 329, 334, and Hughes v. Superior Court,
1948, 32 Cal.2d 850, 198 P.2d 885, definitely established the right to enjoin picketing if its objective is unlawful
in the State of California.
such union or organization acquires an employment monopoly in any enterprise, is hereby
declared to be against the public policy and an illegal combination or conspiracy in restraint
of trade or commerce in the State of North Carolina. Laws N.C.1947, c. 328, sec. 2.
It will be observed that this statute outlawed the denial of work to nonunion men.
The Nebraska constitutional amendment reads as follows: No person shall be denied
employment because of membership in or affiliation with, or resignation or expulsion from a
labor organization or because of refusal to join or affiliate with a labor organization; nor shall
any individual or corporation or association of any kind enter into any contract, written or
oral, to exclude persons from employment because of membership in or non-membership in a
labor organization. Const.Neb. art. 15, sec. 13, as adopted in 1946.
This amendment struck down the right to deny employment either because of membership
or nonmembership in a union. The Arizona constitutional amendment reads as follows: No
person shall be denied the opportunity to obtain or retain employment because of
non-membership in a labor organization, nor shall the state or any subdivision thereof, or any
corporation, individual or association of any kind enter into any agreement, written or oral,
which excludes any person from employment or continuation of employment because of
non-membership in a labor organization. Laws Ariz.1947, p. 399.
This constitutional amendment, like the North Carolina statute outlawed the denial of
employment because of the employee's nonmembership in a union. The effect of the North
Carolina and Nebraska enactments is thus simply described in the opening paragraph of Mr.
Justice Black's opinion: Under employment practices in the United States, employers have
sometimes limited work opportunities to members of unions, sometimes to non-union
members, and at other times have employed and kept their workers without regard to
whether they were or were not members of a union.
and kept their workers without regard to whether they were or were not members of a union.
Employers are commanded to follow this latter employment practice in the state of North
Carolina and Nebraska. A North Carolina statute, and a Nebraska constitutional amendment
provide that no person in those states shall be denied an opportunity to obtain or retain
employment because he is or is not a member of a labor organization. To enforce this policy
North Carolina and Nebraska employers are also forbidden to enter into contracts or
agreements obligating themselves to exclude persons from employment because they are or
are not labor union members.
The issues involved were further described by him as follows: These state laws were
given timely challenge in North Carolina and Nebraska courts on the ground that insofar as
they attempt to protect non-union members from discrimination, the laws are in violation of
rights guaranteed employers, unions, and their members by the United States Constitution.
The state laws were challenged as violations of the right of freedom of speech, of assembly
and of petition guaranteed unions and their members by the First Amendment and protected
against invasion by the state under the Fourteenth Amendment.'
Defining the contention of the unions further, Mr. Justice Black stated: It is also argued
that the state laws do not provide protection for union members equal to that provided for
non-union members. But in identical language these state laws forbid employers to
discriminate against union and non-union members. Nebraska and North Carolina thus
command equal employment opportunities for both groups of workers. It is precisely because
these state laws command equal opportunities for both groups that appellants argue that the
constitutionally protected rights of assembly and due process have been violated. For the
constitutional protections surrounding these rights are relied on by appellants to support a
contention that the Federal Constitution guarantees greater employment rights to union
members than to non-union members.
appellants to support a contention that the Federal Constitution guarantees greater
employment rights to union members than to non-union members. This claim of appellants is
itself a refutation of the contention that the Nebraska and North Carolina laws fail to afford
protection to union members equal to the protection afforded non-workers.
If there is any distinction in principle between the foregoing situation and that created by
the Nevada statute, it is one that grows out of arrangement of words or phrases and not out of
meaning, principle or effect. In the Arizona case Mr. Justice Black, again speaking for the
court, thus refers to the Arizona amendment [335 U.S. 538, 69 S.Ct. 259]:
The language of the Arizona amendment prohibits employment discrimination against
non-union workers but it does not prohibit discrimination against union workers. It is argued
that a failure to provide the same protection for union workers as that provided for non-union
workers places the union workers at a disadvantage, thus denying unions and their members
the equal protection of Arizona's laws.
Although the Arizona amendment does not itself expressly prohibit discrimination
against union workers, that state has not left unions and union members without protection
from discrimination on account of union membership. Prior to passage of this constitutional
amendment, Arizona made it a misdemeanor for any person to coerce a worker to make a
contract not to join or become a member of any labor organization' as a condition of getting
or holding a job in Arizona A.C.A. 1939 43-1608. A section of the Arizona code made
every such contract (generally known as a yellow dog contract') void and unenforceable.
Similarly, the Arizona constitutional amendment makes void and unenforceable contracts
under which an employer agrees to discriminate against non-union workers.
He refers further to the situation in Arizona as follows: Statutes implementing the
amendment have provided as sanctions for its enforcement relief by injunction and suits
for damages for discrimination practiced in violation of the amendment."
provided as sanctions for its enforcement relief by injunction and suits for damages for
discrimination practiced in violation of the amendment.
If further explanation is needed to analyze the issues in these cases the concurring opinion
of Mr. Justice Frankfurter, in all three cases, may be noted. The learned justice says:
Arizona, Nebraska, and North Carolina have passed laws forbidding agreements to
employ only union members. The United States Constitution is invoked against these laws.
Note further Mr. Justice Black's analysis in the Lincoln and Whitaker cases: Under the state
policy adopted by these laws, employers must, other considerations being equal, give equal
opportunities for remunerative work to union and non-union members without discrimination
against either. In order to achieve this objective of equal opportunity for the two groups,
employers are forbidden to make contracts which would obligate them to hire or keep none
but union members. Nothing in the language of the laws indicates a purpose to prohibit
speech, assembly, or petition. Precisely what these state laws do is to forbid employers acting
alone or in concert with labor organizations deliberately to restrict employment to none but
union members.
When we consider the testimony of relators' witness Hanley that the purpose of the
picketing was to acquaint the public with certain facts including the fact that a union contract
had been submitted to the employers and rejected (which contract, if executed, would have
required the employers to employ none but union men, in violation of the Nevada statute), in
connection with the contention of relators that the injunctive restraint against this
accomplishment destroyed their constitutional right of free speech, the following from the
opinion of the court is particularly illuminating:
It is difficult to see how enforcement of this state policy could infringe the freedom of
speech of anyone, or deny to anyone the right to assemble or to petition for a redress of
grievances.
for a redress of grievances. And appellants do not contend that the laws expressly forbid the
full exercise of those rights by unions or union members. Their contention is that these state
laws indirectly infringe their constitutional rights of speech, assembly, and petition. While the
basis of this contention is not entirely clear, it seems to rest on this line of reasoning: The
right of unions and union members to demand that no non-union members work along with
union members is indispensable to the right of self organization and the association of
workers into unions'; without a right of union members to refuse to work with non-union
members, there are no means of eliminating the competition of the non-union worker'; since,
the reasoning continues, a closed shop is indispensable to achievement of sufficient union
membership to put unions and employers on a full equality for collective bargaining, a closed
shop is consequently an indispensable concomitant' of the right of employees to assemble
into and associate together through labor organizations. * * *' Justification for such an
expansive construction of the right to speak, assemble and petition is then rested in part on
appellant's assertion that the right of a non-unionist to work is in no way equivalent to or the
parallel of the right to work as a union member; that there exists no constitutional right to
work as a non-unionist on the one hand while the right to maintain employment free from
discrimination because of union membership is constitutionally protected.' Cf. Wallace
Corporation v. National Labor Relations Board, 323 U.S. 248, 65 S.Ct. 238, 89 L.Ed. 216.
We deem it unnecessary to elaborate the numerous reasons for our rejection of this
contention of appellants. Nor need we appraise or analyze with particularity the rather
startling ideas suggested to support some of the premises on which appellants' conclusions
rest. There cannot be wrung from a constitutional right of workers to assemble to discuss
improvement of their own working standards, a further constitutional right to drive from
remunerative employment all other persons who will not or can not, participate in union
assemblies.
own working standards, a further constitutional right to drive from remunerative employment
all other persons who will not or can not, participate in union assemblies. The constitutional
right of workers to assemble, to discuss and formulate plans for furthering their own self
interest in jobs cannot be construed as a constitutional guarantee that none shall get and hold
jobs except those who will join in the assembly or will agree to abide by the assembly's plans.
For where conduct affects the interests of other individuals and the general public, the legality
of that conduct must be measured by whether the conduct conforms to valid law, even though
the conduct is engaged in pursuant to plans of an assembly.
Further the court states (and this is a positive repudiation of Shafer v. Registered
Pharmacists Union, 16 Cal. 2d 379, 106 P.2d 403, on which the majority place strong
reliance);
If the states have constitutional power to ban such discrimination by law, they also have
power to ban contracts which if performed would bring about the prohibited discrimination.
Chicago, B. & Q. R. Co. v. McGuire, 219 U.S. 549, 570, 571, 31 S.Ct. 259, 263, 55 L.Ed.
328.
Many cases are cited by appellants in which this Court has said that in some instances the
due process clause protects the liberty of persons to make contracts. But none of these cases,
even those according the broadest constitutional protection to the making of contracts, ever
went so far as to indicate that the due process clause bars a state from prohibiting contracts to
engage in conduct banned by a valid state law. So here, if the provisions in the state laws
against employer discrimination are valid, it follows that the contract prohibition also is valid.
Bayside Fish Flour Co. v. Gentry, 297 U.S. 422, 427, 56 S.Ct. 513, 515, 80 L.Ed. 772. And
see Sage v. Hampe, 235 U.S. 99, 104-105, 34 S.Ct. 94, 95, 59 L.Ed. 147.
Referring to the fact that several other states now have such laws including footnote
reference to sec. 10473, N.C.L., Mr. Justice Frankfurter in concurring says: If the proponents
of union-security agreements have confidence in the arguments addressed to the Court in their
economic brief,' they should address those arguments to the electorate.
Such is the situation with which sec. 10473, Nevada Compiled Laws, is confronted. The
statute prohibits employment contracts discriminating against either union or non-union
workers. As preventing discrimination against union workers, relators concede, nay assert,
that it is valid. They even declare in their supplemental brief that they do not attack the
constitutionality of sec. 10473 and say that respondents mistakenly conceive relators' attack
upon the injunction as a challenge to the validity of the statute. The original petition of the
relators did definitely challenge the validity of the statue. Be that as it may, if the statute is
valid (and under the latest decisions of the United States Supreme Court we cannot hold
otherwise) then the execution of a contract by the drug stores to employ only union men
would be unlawful. Picketing to compel the performance of an unlawful act was likewise
unlawful and subject to restraint by injunction.
In the North Carolina and Nebraska cases the state statutory enactments were approved by
a unanimous court. In the Arizona case the state constitutional amendment was approved,
with a dissent noted by Mr. Justice Murphy but without any dissenting opinion. Mr. Justice
Frankfurter's concurring opinion applied to all three cases. Despite the bitter controversies
that have raged in the United States Supreme Court starting with the Adair and Coppage
cases and running through the entire gamut of the Senn, Thornhill, Carlson, Meadowmoor,
Wohl, Ritter, and other cases, we find here almost unanimous approval (only one dissent,
without opinion, being noted) of state enactments outlawing discrimination in
employment of union or non-union workers.
being noted) of state enactments outlawing discrimination in employment of union or
non-union workers. The broad characterizations by Mr. Justice Black and Mr. Justice
Frankfurter of the nature of the North Carolina, Nebraska and Arizona enactments just as
aptly fit the Nevada statute. Indeed, as noted, sec. 10473, N.C.L. is noted in the footnote as an
anti-discrimination statute similar to those enacted by many other states. The prevailing
opinion of the court in this case emphasizes the difference between the Nevada statute and the
three statutes construed in the opinions above discussed. It insists that the only contracts
outlawed in Nevada are contracts between the employer and the employee and not contracts
between the employer and the union, and that this distinction was especially recognized by
the Supreme Court of California in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379,
106 P.2d 403. It is quite true that the prevailing opinion in that case, written by Mr. Justice
Edmonds construing the California statute, in many respects quite similar to the Nevada
statute, rejects the theory that the declaration that it is contrary to public policy for the
employer and employee to contract that the latter shall join or shall not join a labor
organization applies to a contract between an employer and an independent union that would
require such union membership. In this respect the opinion says, 106 P.2d 408: The
argument is also made that it is absurd to suppose that these provisions were written with the
intention of restraining the employer from influencing his employee, while at the same time
conferring upon other individuals the right to coerce' the same employee through the
employer. But the right of workman to organize for the purpose of bargaining collectively
would be effectually thwarted if each individual had the absolute right to remain
unorganized' * * *. But this is precisely the contention that was rejected by the United
States Supreme Court in the most forcible language. Mr. Justice Edmonds in actual words
rejects the proposition that "each individual [has] the absolute right to remain
'unorganized'."
most forcible language. Mr. Justice Edmonds in actual words rejects the proposition that
each individual [has] the absolute right to remain unorganized'. In Lincoln Federal Union
v. Northwestern Iron and Metal Company, supra, and Whitaker v. North Carolina, supra, the
contention was made that the right of a non-unionist to work is in no way equivalent to or
the parallel of the right to work as a union member; that there exists no constitutional right to
work as a non-unionist on the one hand while the right to maintain employment free from
discrimination because of union membership is constitutionally protected. The ideas
supporting this proposition were characterized by the United States Supreme Court as
startling. In short, the theory of the prevailing opinion in the Shafer case, decided in 1940,
is condemned, discountenanced, rejected and repudiated by a virtually unanimous United
States Supreme Court in 1949. Against California's rejection of the right of each individual
employee to remain unorganized the United States Supreme Court says: Just as we have
held that the due process clause erects no obstacle to block legislative protection of union
members, we now hold that legislative protection can be afforded non-union workers.
Shafer v. Registered Pharmacists Union 16, Cal.2d 79, 106 P.2d 403, and Mackay v.
Retail Automobile Salesmen's Union, 16 Cal.2d 311, 106 P.2d 373, were decided on the same
day, October 14, 1940. In both cases Mr. Justice Edmonds wrote the opinion for the court. In
both cases Justices Curtis, Shenk and Marks dissented. The opinions are too long to quote at
length. Suffice it to say that in both cases the opinion of Mr. Justice Edmonds and the
concurring opinion of Mr. Justice Moore consistently establish a doctrine repudiated by the
United States Supreme Court in the cases last above discussed, while on the other hand the
dissenting opinion of Mr. Justice Curtis and at least the first phase of the dissent of Mr.
Justice Marks are in accord therewith.
in accord therewith. The second phase of the dissenting opinion of Mr. Justice Marks, in
which he attacks peaceful picketing as a means of economic coercion and not as an exercise
of the right of free speech, need not be considered here. Despite my notation in footnote 2 of
the gradual departure of the United States Supreme Court from the complete identification of
picketing with free speech, it is unnecessary for me to do otherwise than to indulge the
correctness of the premise of such identification.
The sole reason for the issuance of the injunction by the district court against the picketing
engaged in by the relators was that its objective was unlawful, namely, to compel the
respondent employer drug stores to violate sec. 10473, N.C.L. by insisting that their
employees join the union. In this, with due respect to the opinions of my two learned
associates, I am convinced that the respondent court was correct so long as sec. 10473 N.C.L.
remains on the statute books. It is not our province to pass upon the propriety or advisability
of that statute. It is said on the one hand that the statute was passed at the instance of union
labor, and it is said on the other hand that union labor has, without success, attempted to
accomplish its repeal by past legislatures. It is a matter of common knowledge that union
labor unsuccessfully submitted to the 1949 legislature an act to repeal sec. 10473. It would be
presumptuous on the part of this court to suggest the propriety or advisability of such
legislation. All such considerations lie with the legislature, and the legislature alone, unless
the initiative or referendum be invoked by the people themselves.
The majority's conclusion that the term labor organization, as twice used in sec. 10473,
has reference to a company union and not to an independent union is in my opinion
without justification. Further, to shut our eyes as sensible men to the objective of the
picketing (and to its effect if the purpose were accomplished), namely, that the employers
could hire no employees except those who "shall be and remain in good standing in the
union as a condition of employment" and who "must obtain a work slip from the union
before going to work," is simply to shut our eyes to the facts of the case and decide the
same upon mere dogma.
except those who shall be and remain in good standing in the union as a condition of
employment and who must obtain a work slip from the union before going to work, is
simply to shut our eyes to the facts of the case and decide the same upon mere dogma.
No more convincing is the holding of the majority opinion that sec. 10473, N.C.L. was
adopted at the instance of union labor and therefore cannot possibly be interpreted as
denouncing a union security agreement or closed shop agreement when entered into between
the employer and the union, although the statute did on its face outlaw such a discriminatory
agreement when entered into between an employer and employee. This argument implies that
the legislature of this state purposely and deliberately put a joker into sec. 10473; that it
adopted that section with its tongue in its cheek, saying we are outlawing discrimination
against either union or non-union men, when effected by contract between employer and
employee, but such discrimination against either union or non-union men is perfectly lawful
and valid if effected by a contract between the employer and some other person, firm,
association or corporation. It is entirely lacking in logic. The broad characterization given to
the North Carolina, Nebraska and Arizona enactments by the United States Supreme Court
can leave no doubt but that if the Nevada statute had been under its consideration at the same
time it would have received precisely the same treatment. The fine distinction attempted to be
drawn by the majority opinion between the Nevada statute and the other enactments thus
characterized and described and interpreted and construed by the United States Supreme
Court is, with due respect to the opinion of my learned brethern, not warranted. An
interpretation of sec. 10473 that permits and encourages by indirection the violation of our
anti-discrimination statute is, in my opinion, an example of that kind of legalistic reasoning
that invites criticism of the court. If there is anything to the contrary in Lauf v. E. G. Shinner
& Co., 303 U.S. 323, 58 S.Ct. 578, S2 L.Ed.
82 L.Ed. 872, its force has been dispelled by the Lincoln, Whitaker and American Sash &
Door Company cases. The same may be said of other cases relied upon by relators and cited
by the majority opinion on this point. No more convincing is the argument that our statute
cannot be applied to agreements between employers and unions because of the history of the
legislation and the claim that the act was passed at the instance of union labor. This argument
is made along the lines of Mr. Justice Edmond's opinion in the Shafer and McKay cases,
supra. The majority of this court indicate their opinion that sec. 10473 was first proposed by
labor in a form that simply outlawed discrimination against union men and that the proposed
act was amended and finally adopted as adding the proscription against discrimination against
non-union men. This may indeed be soand probably is. It only serves to indicate that the
history of the legislation so strongly relied upon by Mr. Justice Edmonds has no application
here, as it develops from the very contention of the majority that our statute as finally adopted
was upon the insistence, not only of labor but likewise upon the insistence of those desiring to
avoid discrimination against either group of employees. And if reliance is still made upon the
history of the legislation there need only be pointed out the consistent efforts of labor to
repeal the statute in its entirety.
One brief paragraph of the prevailing opinion also holds that the court was without
jurisdiction because no bond for the temporary injunction was filed. Without further
discussion of this issue or of the fact that it was filed nunc pro tunc as of the date of the order
and prior to the violation of the order, I may simply note that both parties have indicated in
their briefs and oral arguments the necessity for the disposition of this case on the main
grounds discussed in both opinions. The question of the bond was in my opinion not strongly
urged by relators.
In conclusion I may summarize my views as follows: {1) The legislature of this state
violated no constitutional limitation in passing sec.
(1) The legislature of this state violated no constitutional limitation in passing sec. 10473,
N.C.L.; (2) that section outlawed labor employment contracts discriminating against either
union or non-union men; (3) although the statute does not in terms bar contracts between
employers and unions, such contracts, indirectly but inevitably accomplishing the same thing
that the statute proscribes, are likewise outlawed; (4) the objective of the picketing being to
compel the employers to enter into a contract with the union whereunder the employer could
employ none but union men, such objective was unlawful; (5) as the objective of the
picketing was unlawful, it was subject to restraint by injunction; (6) the district court having
assumed jurisdiction and being supported in its conclusions that the picketing was for an
unlawful purpose, the issuance of the restraining order should be sustained.
It should be emphasized that the situation is purely a legislative one. If the legislature sees
fit to repeal the statute, a future action premised upon the same grounds as the present one
will not thereafter lie. If the legislature sees fit to maintain this statute on the books, we
should not do otherwise than respect its complete power so to do, without nullifying its action
under the guise of judicial interpretation. As the situation stands now, the objective of the
picketing was one declared unlawful by our statute and could properly be enjoined. I am of
the opinion that the injunction was properly issued and that the writ should be denied and the
alternative writ dismissed.
October 11, 1949. 210 P.2d 454.
Master and Servant.
The statute making it unlawful for any person or corporation to enter into an
agreement under which an employee of such a party as a condition of employment shall
agree not to become or continue a member of a labor organization does not prevent an
employee from entering into an agreement to become a member of an independent
legitimate labor organization with right freely to bargain and freely to indulge in
labor union activities, but only prevents such "company union" contracts as were
calculated unduly to influence, coerce and oppress employees.
become a member of an independent legitimate labor organization with right freely to bargain
and freely to indulge in labor union activities, but only prevents such company union
contracts as were calculated unduly to influence, coerce and oppress employees. N.C.L.1929,
sec. 10473.
Rehearing denied.
Robert W. Gilbert, Los Angeles, Cal., and John W. Bonner, Las Vegas, attorneys for
Relators.
Morse & Graves, Las Vegas, and Brown & Wells, Reno, attorneys for Respondents.
OPINION
This Court has had occasion heretofore, in City of Reno v. Second Judicial District Court,
59 Nev. 416, 95 P.2d 994, 125 A.L.R. 948, to express the views of the majority of the justices
upon the question of the lawfulness of peaceful picketing. Until our recent opinion written by
Eather, J. and concurred in by Horsey, C. J., and the dissenting opinion by Mr. Justice Badt,
in State ex rel. Culinary Workers Union, Local No. 226, et al. v. Eighth Judicial District
Court in and for Clark County et al., 66 Nev. 166, 207 P.2d 990, and in which a rehearing has
been petitioned and is now pending, the last expression of this court was in the year 1939, in
the able and extensive opinion by Mr. Justice Ducker, concurred in by Mr. Chief Justice
Taber, in City of Reno v. Second Judicial District Court, supra.
In the latter opinion, Mr. Justice Ducker repeatedly referred to Senn v. Tile Layers
Protective Union, 301 U.S. 468, 57 S.Ct. 857, 862, 81 L.Ed. 1229, and, in that connection, in
59 Nev. 416, 95 P.2d 994, the learned justice, on pages 441-442 of 59 Nev., and on page
1004 of 95 P.2d, stated:
"In Senn v. Tile Layers Protective Union, supra, the constitutionality of state
anti-injunction legislation designed to prohibit judicial interference with peaceful
picketing, was declared, and the intimation that such picketing is protected by the
constitutional guaranty of free speech, is too plain to be misunderstood.
"In Ex parte Lyons, 27 Cal.App.2d 293, S1 P.2d 190, 193, it was declared: 'In this state
the right to peacefully picket rests upon the constitutional guaranty of the right of free
speech.'"
Mr. Justice Ducker then stated:
justice, on pages 441-442 of 59 Nev., and on page 1004 of 95 P.2d, stated:
In Senn v. Tile Layers Protective Union, supra, the constitutionality of state
anti-injunction legislation designed to prohibit judicial interference with peaceful picketing,
was declared, and the intimation that such picketing is protected by the constitutional
guaranty of free speech, is too plain to be misunderstood.
In Ex parte Lyons, 27 Cal.App.2d 293, 81 P.2d 190, 193, it was declared: In this state the
right to peacefully picket rests upon the constitutional guaranty of the right of free speech.'
Mr. Justice Ducker then stated:
The ordinance on its face, in sections 2 and 4 is obviously adapted to protect the
employer from annoyance and incidental loss of business rather than to protect the public in
maintaining its peace and the unobstructed use of the streets. But such annoyance and loss in
a labor dispute are not tortious nor do they constitute an invasion of any constitutional rights.
Senn v. Tile Layers Protective Union, supra. These sections bear no reasonable and
substantial relation to the promotion of the public safety, health, morals, general welfare, for
which the exercise of the police power may be invoked.
I am of the opinion that sections 2 and 4 of the Reno City Ordinance No. 480 are
unconstitutional and void, in that they invade the constitutional guaranties of the due process
of law clauses of the federal and state constitution, and of section 9 of Article 1 of the state
Constitution guaranteeing free speech and forbidding the state to pass any law to restrain or
abridge the liberty of speech. * * *
We have, in our recent majority opinion in State ex rel. Culinary Workers Union, Local
No. 226 et al. v. Eighth Judicial District Court, in and for Clark County et al., supra, cited,
and quoted from, American Federation of Labor v. Swing, 312 U.S. 321, 61 S.Ct. 568, 570,
85 L.Ed. 855, American Steel Foundaries v. Tri-City Central Trades Council, 257 U.S. 1S4,
209, 42 S.Ct.
Central Trades Council, 257 U.S. 184, 209, 42 S.Ct. 72, 78, 66 L.Ed. 189, 27 A.L.R. 360, and
many other cases of importance involving the right and lawfulness of peaceful picketing. The
members of this court have had occasion, since our recent opinion in State ex rel. Culinary
Workers Union v. Eighth Judicial District Court et al., supra, again carefully to consider them
in connection with respondents' petition for rehearing, together with the additional authorities
in support thereof, and those of the relators in support of their assertion that same should be
denied, and it is the view of the majority that the constitutional principles involved are so
fundamental and conform so closely to the views of the majority of this court, and which, as
we believe, represent the great weight of American authority, that we discern no useful
purpose to be served in granting or ordering a rehearing. In the absence of any applicable
constitutional provision or statute in Nevada enacted since the opinion in City of Reno v.
Second Judicial District Court, supra, or any decisions of other states concerning which we
entertain reasonable doubt as to the correctness of our views, we would not be justified in
overruling City of Reno v. Second Judicial District Court, supra. Relative to the latter, the
majority of this court entertain no such reasonable doubt, but, on the contrary, adhere fully to
the view of the majority of this court in City of Reno v. Second Judicial District Court, supra,
so clearly and ably expressed therein by the late Mr. Justice Ducker, and concurred in by the
late Mr. Chief Justice Taber.
It may be contended that the act of 1911, sec. 10473, N.C.L., vol. 5, was not directly
invoked or necessarily involved in City of Reno v. Second Judicial District Court, supra, even
though such statute was enacted long prior thereto. That may be true, but we dare say it would
have been directly involved were it not for the fact that said statute, sec. 10473, was generally
considered to be based upon what has been usually designated as a yellow dog or company
union contract, and not within the meaning or purview of a "Right to Work" statute.
not within the meaning or purview of a Right to Work statute. The majority of this court, in
State ex rel. Culinary Workers Union v. Eighth Judicial District Court, supra, 66 Nev. 166,
207 P.2d 990, at pages 997-998, has stated:
The Supreme Court of the State of California was faced with this same problem of
statutory construction in Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d
403, 407, and in that case reached the conclusion that this type of statute was not intended to
outlaw union security agreements reached by collective bargaining. That court pointed out:
* * * the clause to join or to remain a member of a labor organization, may not reasonably
be construed as prohibiting a promise to join an independent labor union. Although the term
labor organization, taken by itself, is broad enough to refer to either a company or an
independent union, the purpose of the legislation must be considered in arriving at a
conclusion concerning its meaning. If the words are meant to designate an independent union,
then it is against public policy for an employee or prospective employee to join such an
organization, which is a result exactly contrary to the declaration of policy in section 923. * *
* These and other considerations render untenable the contention that union shop contracts in
California are void under section 921. As has already been noted, the usual company union
contract is an individual agreement between the employer and an employee, whereas the
union shop contract is an agreement running between the employer and the union as an
entity.'
The Nevada act here in question makes certain agreements unlawful when entered into
with an employee or person about to enter the employ' of another and is therefore aimed
expressly at individual agreements. It does not mention or prohibit collective agreements or
agreements with labor organizations as such, and we conclude as did the California court in
the Shafer case, that this law was not enacted for the purpose of making collective union
security agreements unlawful.
that this law was not enacted for the purpose of making collective union security agreements
unlawful.
Respondents have cited the so-called Right to Work' cases to support their contention
that the 1911 act is a valid enactment prohibiting closed shop agreements. In these cases,
however, the supreme court clearly distinguishes the long-standing anti-yellow-dog contract
laws and the very recent legislations involved in the cases. After discussing the history of the
anti-yellow-dog contract legislation, Mr. Justice Black, in upholding the recent laws
concluded that: Just as we have held that the due process clause erects no obstacle to block
legislative protection of union members, we now hold that legislative protection can be
afforded non-union workers.'
From our study of the legislative history and the background of the 1911 act it is plain to
us that this act was enacted to prohibit the yellow-dog' type of contract and to protect
workers from compulsion to join company dominated unions, but that the law does not by its
terms outlaw union security agreements obtained through the process of collective
bargaining.
If the opponents of union security agreements wish to have them declared unlawful they
should address their demands to the legislature for a clear and unmistakable mandate and not
appeal to this court for such declaration under color of a law that was never intended to fulfill
that purpose.
The provisions of section 10473, N.C.L.1929, vol. 5, are as follows: It shall be unlawful
for any person, firm or corporation to make or enter into any agreement * * * by the terms of
which any employee of such person * * * shall promise or agree not to become or continue a
member of a labor organization, or shall promise or agree to become or continue a member of
a labor organization.
Bearing in mind the historical background of the statute, the first clause of the provision,
to the effect that it shall be unlawful to promise or agree not to become or continue a
member of a labor organization * * *," is considered entirely clear.
or continue a member of a labor organization * * *, is considered entirely clear. Certain
employers in many states, by coercion, intimidation and oppressive methods, had prevented
contracts between the employers and their employees, by which the employees were free to
join labor organizations in order the better to promote and protect such employees in their
rights to enter into collective bargaining and to enjoy the legitimate benefits which naturally
result from organization, and in order the more equitably to equalize, in their labor relations,
the power of capital and of labor. Such oppressive methods were not entirely absent in
Nevada, and doubtless occasioned the creation of such statute. But the second or alternative
clause of the said provision, namely, it shall be unlawful * * * shall promise or agree to
become or continue a member of a labor organization, is not so clear, at least to the average
person. At first blush, it would seem that the benefit and advancement to be realized by the
first clause of the provision, abolishing the nefarious yellow-dog contract and making it
unlawful for an employee to promise or agree not to become a member of a labor
organization of its own choosing, might, by the terms of the second clause thereof, namely,
it shall be unlawful to promise or agree to become or continue a member of a labor
organization, be thwarted, thus defeating the very provisions of the statute, sec. 10473,
which ostensibly were to assure the furtherance of more humane and equitable labor relations.
Indeed, to some persons, perhaps, without full knowledge of the legislative intention as to
such second clause, the provision may have appeared mystifying. It appears, however, a few
years later, in the State of California, that the courts of that state, in dealing with a provision
in California almost identical in language to that in the said second clause of our provision in
section 10473, held that the California legislature had not intended at all, or in any respect, to
provide that an employee should not agree to become or continue a member of a labor
organization as to the right of collective bargaining, or to enter into union security
agreements or other legitimate functions of labor union activities, but only to prevent
so-called "company union" agreements.
continue a member of a labor organization as to the right of collective bargaining, or to enter
into union security agreements or other legitimate functions of labor union activities, but only
to prevent so-called company union agreements. Such so-called company union
agreements were arrangements or devices by which certain employers, instead of further
resorting to the former yellow dog' agreements by which their employees were required not
to become a member of a labor organization, which had been banned, were then resorting to
inducing their employees to enter into such company unions. So, by the California
decisions, such as Shafer v. Registered Pharmacists Union, 16 Cal.2d 379, 106 P.2d 403, 407,
and others, such company union agreements were determined to be against sound public
policy, and, by the force and effect of the statute in that state, it became unlawful to become a
member of such a company union, so called.
In dealing with our own statute it has become increasingly clear that, as to the provisions
relating to such second clause of section 10473, N.C.L.1929, vol. 5, any uncertainty of
interpretation thereof which may have heretofore been existent has been removed by the
reasoning of the California decisions above mentioned, and it clearly appears that the statute,
and particularly said second clause therein, did not intend to prevent an employee from
entering into an agreement to become a member of an independent, legitimate labor
organization, with the right freely to bargain and to indulge in labor union activities as
guaranteed by the right of freedom of speech and of assembly, but only to curtail and prevent
such company union contracts as were, in their nature and effect, calculated unduly to
influence, coerce and oppress employees. Such company unions, so-called, were found, by
impartial judges, to be no real improvement over the former yellow-dog contracts, by
which there was no membership in any labor organization, but merely an individual
relationship by which the individual employee was placed at the mercy, so to speak, of the
employer.
individual employee was placed at the mercy, so to speak, of the employer. So, for the reason
that Mr. Justice Ducker stated, in effect, that the peaceful picketing by a labor union, in City
of Reno v. Second Judicial District Court, supra, was for a lawful objective, sections 2 and 4
of the Reno City Ordinance No. 480 being unconstitutional, the majority of this court in State
ex rel. Culinary Workers Union, etc. v. Eighth Judicial Dist. Ct. in and for Clark County,
supra, 207 P.2d 990, has found and decided that in section 10473, in the provision in the
second clause of said section the purpose or intent was to prohibit so-called company union
contracts as being against sound public policy. If, by the first clause of said provisions in
section 10473, yellow-dog contracts were rendered unlawful, likewise the contracts
mentioned in the second clause thereof were, by analogy, deemed against public policy, but
only as they related to so-called company union contracts, and said clause did not, in any
respect, make collective security agreements unlawful. The peaceful picketing, therefore, by
certain labor unions, to accomplish labor unionization as to the drug stores referred to, in the
City of Las Vegas, was for a lawful objective.
In the view of the majority of this court, the said two cases above mentioned, City of Reno
v. Second Judicial District Court, and State ex rel. Culinary Workers Union v. Eighth Judicial
District Court, supra, are entirely consistent, and each has treated and cited, exhaustively, and
we believe, correctly, many phases of freedom of speech and of assembly. In both these cases
the principles involved, respectively, are fundamental. The opinion by Mr. Justice Ducker
was based upon the Reno City ordinance No. 480, while State ex rel. Culinary Workers
Union v. Eighth Judicial District Court, supra, was based upon the Nevada statute, section
10473, N.C.L., vol. 5, but in each of the cases this court clearly upheld the lawfulness of
peaceful picketing as a proper and legitimate labor objective. In each of the said cases,
therefore, the injunctive process was denied, any loss of business, or annoyance, caused
by the peaceful picketing by certain labor unions involved being merely incidental and
unavoidable, and damnum absque injuria.
therefore, the injunctive process was denied, any loss of business, or annoyance, caused by
the peaceful picketing by certain labor unions involved being merely incidental and
unavoidable, and damnum absque injuria.
We do not feel we should fail to mention a very recent decision of the supreme court of
Oregon, filed July 6, 1949. The case appears in the advance sheets of Pacific Reporter, 2d
series, August 26, 1949, and is cited as Baker Community Hotel Co. v. Hotel & Restaurant
Employees & Bartenders International League, Local 161 et al., Or., 207 P.2d 1129. The
opinion was written by Rossman, Justice, and concurred in unanimously. In able, clear and
plain language, the learned justice has stated, as reported on pages 1134-1135 and on page
1136, of 207 P.2d, the following:
We come now to the question as to whether or not the dispute between the respondent
and the appellants was a labor dispute within the contemplation of 102-925, O.C.L.A., for,
if it was not, our Anti-Injunction Act is not applicable to this suit. Peters v. Central Labor
Council, 179 Or. 1, 169 P.2d 870, 872, which was concerned with the section of our
Anti-Injunction Act just mentioned, says:
The vital question is whether the facts disclose a labor dispute within the meaning of
the Anti-Injunction Act of this state, 102-913 to 102-925, O.C.L.A. If such dispute exists,
no injunctive relief can be granted under the Act against peaceful picketing. * * *
It does not follow, however, that the union could not picket for the unionization of the
plant even though none of its members were employees therein, as that is, according to the
overwhelming weight of authority, a legal labor objective. Lauf v. E. G. Shinner & Co., supra
(303 U.S. 323, 58 S.Ct. 578, 82 L.Ed. 872); New Negro Alliance v. Sanitary Grocery Co.,
supra (303 U.S. 552, 304 U.S. 542, 58 S.Ct. 703, 82 L.Ed. 1012); Fur Workers Union v. Fur
Workers Union, 308 U.S. 522, 60 S.Ct. 292, 84 L.Ed. 443; United States v. Hutcheson, 312,
U.S.219, 61 S.Ct 463, S5 L.Ed.
312, U.S.219, 61 S.Ct 463, 85 L.Ed. 788; American Federation of Labor v. Swing, supra (312
U.S. 321, 61 S.Ct. 568, 85 L.Ed. 855); Levering & Garrigues Co. v. Morrin, 2 Cir., 71 F.2d
284; Blankenship v. Kurfman, 7 Cir., 96 F.2d 450; Donnelly Garment Co. v. International
L.G.W.U., 8 Cir., 99 F.2d 309; Taxicab Drivers Local Union v. Yellow Cab Operating Co.,
10 Cir., 123 F.2d 262; American Furniture Co. v. I. B. of T. C. and H. of A., 222 Wis. 338,
268 N.W. 250, 106 A.L.R. 335; Teller on Labor Disputes, Vol. 1, 211; 31 Am.Jur. 940,
215.'
* * * * * * *
We are satisfied that the passages just quoted from the Peters decision and the text-book
correctly portray the applicable principles of labor law. A demand by a union upon an
employer that he unionize his shop, followed by his refusal to do so, constitutes a labor
dispute within the conception of 102-925, O.C.L.A. This court, like all other state courts,
has yielded to the superior authority of the Federal Supreme Court, and in so doing has held
that peaceful picketing by a union for the purpose of achieving the unionization of a place of
employment is lawful and cannot be enjoined by a court of equity. The complaint indicates
that at least one of the objectives which the appellants' picketing sought to achieve was the
unionization of the hotel and the restaurant which the respondent conducted. From all that we
have so far considered, it appears that the picketing was lawful and that it was pursued in
furtherance of a labor dispute within the embrace of 102-925, O.C. L.A.
In view of said section 10473, N.C.L.1929, vol. 5, and the doctrine and authorities
elucidating the said yellow-dog or company union contracts and statutes, notably in the
State of California and the authorities there cited, and in the absence of a statute or statutes of
a different nature in Nevada, and in view of the wealth of able authorities in the United States
Supreme Court and other federal courts, and in numerous state courts, upholding the
lawfulness of peaceful picketing for the accomplishment of a legitimate labor objective,
and bearing in mind City of Reno v. Second Judicial District Court, supra, we can do no
other than to deny the respondents' petition for a rehearing in the proceedings.
other federal courts, and in numerous state courts, upholding the lawfulness of peaceful
picketing for the accomplishment of a legitimate labor objective, and bearing in mind City of
Reno v. Second Judicial District Court, supra, we can do no other than to deny the
respondents' petition for a rehearing in the proceedings.
Rehearing denied.
Eather J., concurs.
Badt, J., I dissent.
The foregoing opinion denying the petition for rehearing implies that a dissenting view
would require the overruling of City of Reno v. Second Judicial District Court, 59 Nev. 416,
95 P.2d 994. Such is emphatically not the case. City of Reno, v. Second Judicial District
Court simply struck down those sections of a city ordinance that made unlawful all picketing,
violent or peaceful, en masse or by a single picket, and whether its objective was to
accomplish an unlawful purpose or to accomplish a perfectly lawful purposea sweeping
prohibition of any form of picketing, irrespective of its nature, purpose
1
or number of
pickets, and constitute an interdiction of all activities and free speech sought to be exercised
in the form of peaceful picketing. Id., 59 Nev. 416, 433, 95 P.2d 994, 1000. It did not touch
either of the two questions before usfirst, whether picketing may be enjoined if its
objective is unlawful, and secondly, whether the purpose of the picketing of the Las Vegas
drug stores (to compel the execution of a contract under which the employers could employ
only union men) was in violation of our statute. An affirmative answer to the first query must
be conceded. It was recently re-affirmed by the supreme court of the United States in Giboney
v. Empire Storage & Ice Co., 1949, 336 U.S. 490, 69 S.Ct.
____________________

1
Here we have the unmistakable implication that the court would not have invalidated the statute if it had
declared unlawful only such picketing that was violent or had for its objective the accomplishment of an
unlawful purpose.
336 U.S. 490, 69 S.Ct. 684. The majority is at great pains to point out that sec. 10473,
Nevada Compiled Laws, making it unlawful for an employer to cause his employee to agree
to become * * * a member of a labor organization has reference only to a so-called
company union. The legislature could have said company union if that was what it
meant. But it said labor organization. The majority opinion holds that our statute is simply
an anti-yellow-dog contract statute. But the anti-yellow-dog part of the statute makes it
unlawful to cause the employee to agree not to become * * * a member of a labor
organization. If an employer cannot lawfully forbid membership in a labor organization, the
whole yellow dog feature vanishes into thin air if that labor organization is simply a
company union. Union labor would be afforded no protection by the outlawing of contracts
whereunder an employee could not be a member of a company union. Precisely the same
term, namely, labor organization, is used in both clausesthe clause outlawing an
insistence on membership and the clause outlawing an insistence on nonmembership.
Certainly labor organization cannot have been intended by the legislature to refer to a labor
union in part of the sentence and to refer to a company union in another part of the same
sentence. The title to sec. 10473, N.C.L. is aptly and properly worded by the codifier:
Agreement to Join or Not to Join Labor Organization Unlawful, When. Instead of treating
this statute simply as a nondiscrimination statute, which it appears to me most clearly to be,
we now have a statute which is not even an anti-yellow-dog contract statute. It is nothing at
all. It now simply means that an employee cannot be compelled to be a member of a company
union and that he cannot be compelled not to be a member of a company union.
The majority opinion denying rehearing relies strongly on Baker Community Hotel Co. v.
Hotel & Restaurant Employees, etc., Or.,
strongly on Baker Community Hotel Co. v. Hotel & Restaurant Employees, etc., Or., 207
P.2d 1129. That case, however, simply held that an attempt to unionize the plant constituted a
labor dispute within the conception of the Oregon statute and that peaceful picketing to
accomplish such objective could accordingly not be enjoined. It does not touch upon our
present problem.
The majority opinion states that City of Reno v. Second Judicial District Court and other
cases upheld the lawfulness of peaceful picketing as a proper and legitimate labor objective.
(Emphasis added.) With due respect to that opinion, such conclusion is inaccurate. Peaceful
picketing as a means or as an activity has of course been held to be free from restraint subject
to various conditions, one of which is the lawfulness, under state laws, of its objective. It has
never, so far as I know, and certainly not in City of Reno v. Second Judicial District Court,
been upheld as an objective in itself.
Feeling, as I do, that the majority opinion supporting the order denying the petition for
rehearing leaves the matter in greater confusion than ever, I think a rehearing should be
granted.
____________
66 Nev. 216, 216 (1949) Young Investment Co. v. Reno Club
YOUNG INVESTMENT COMPANY, a Corporation, Appellant, v. RENO CLUB,
INCORPORATED, a Corporation, Respondent.
No. 3543
June 27, 1949. 208 P.2d 297.
Although a judgment if affirmed may not be enforced by reason of change of circumstances pending
appeal, its subject matter is not moot if judgment, if left unreversed, precludes party against whom it
stands as to a fact vital to his rights.
In action for specific performance of option to execute a lease and to recover possession of premises,
fact that person in possession had surrendered possession and that defendant had delivered plaintiff a
lease did not render the appeal moot, since question of whether possession of premises had been legal
had bearing on liability of person in possession.
3. Specific Performance.
In action for specific performance of option to execute a lease and to recover possession of the
premises, person in possession of the premises was properly brought in as a party defendant in order to
permit complete determination of issues. N.C.L.1929, sec. 8565.
4. Parties.
The purpose of statute authorizing additional parties to be brought in if necessary to a complete
determination of controversy is to have a complete determination of controversy and to avoid piecemeal
determinations of issues and a multiplicity of suits. N.C.L.1929, sec. 8565.
5. Parties.
Where an additional person was made a party defendant it was unnecessary that plaintiff serve an
amended complaint showing a claim against the additional defendant or that the original complaint state a
cause of action against him. N.C.L. 1929, sec. 8565.
6. Parties.
A controversy within statute permitting additional party to be brought in if necessary to complete
determination of controversy may be presented by proof submitted as well as by pleadings of the parties.
N.C.L.1929, sec. 8565.
7. Motions Process.
When a copy of summons and copy of order is served upon a party, it becomes his duty to determine
from record in cause whether his right is to be invaded by the litigation and if so to appear in the action
and plead therein.
8. Corporations.
Where landlord, upon plaintiff's exercise of option to lease premises, was required to execute lease to
plaintiff, and written notice terminating month to month tenancy was served on the tenant in possession,
president of landlord could not nullify notice by verbal statement that tenant need not pay any attention to
it.
Where original defendant which had sought reformation of an option agreement did not appeal,
reviewing court would not consider that issue on appeal of additional defendant subsequently brought in
whose pleading presented no such issue.
10. Evidence.
Where cross complaint sought reformation of agreement giving option to obtain lease on ground of
mutual mistake, trial court properly excluded testimony not establishing mutual mistake but tending to
vary terms of written leases.
Appeal from Second Judicial District Court, Washoe County; Frank McNamee, Presiding
Judge.
Action by the Reno Club, Incorporated against the Young Investment Company to obtain
specific performance of an option to execute a lease and possession of the premises involved,
wherein the defendant filed a cross complaint and William Harrah was brought in as a party
defendant. Judgment for the plaintiff and defendant Harrah appeals. Judgment affirmed.
Harlan L. Heward, of Reno, for Appellant, William Harrah.
Sydney W. Robinson and M. A. Diskin, both of Reno, for Respondent.
OPINION
This action as originally filed in the lower court was one in which respondent, Reno Club,
a corporation, was plaintiff and Young Investment Company, a corporation, was
defendant.
plaintiff and Young Investment Company, a corporation, was defendant. Plaintiff sought
judgment requiring specific performance by defendant of an option to execute a lease and
possession of the premises. One phase of this controversy was decided by this court in case of
Reno Club, a corporation v. Young Investment Company, 64 Nev. 312, 182 P.2d 1011, 173
A.L.R. 1145.
We held there that the amended complaint stated a cause of action, reversed the lower
court in sustaining a demurrer to the amended complaint and directed the judgment of
dismissal be set aside and defendant be given time to answer.
The record now before us shows that defendant Young Investment Company filed an
answer in which it was admitted that the option agreement as alleged in amended complaint
was executed. The answer further pleaded affirmative matters that will hereafter be discussed,
including a cross complaint for reformation of the option agreement.
Following filing of the answer, respondent, based upon allegations therein contained,
moved the lower court for an order bringing in William Harrah as party defendant. After
argument the court, pursuant to sec. 8565, N.C.L.1929, ordered that William Harrah be
brought in, and that a copy of the summons in the action be served upon him. Responsive to
such order William Harrah filed a demurrer to amended complaint, which was overruled by
the court, and thereafter filed an answer.
Upon trial of the issues the lower court entered judgment directing Young Investment
Company to execute and deliver to respondent the lease agreement attached to respondent's
amended complaint, for a term period from February 15, 1948 to October 26, 1948.
The court by its judgment and decree directed William Harrah to forthwith surrender
possession of the premises to respondent and that Harrah's possession thereof was unlawful.
A motion for a new trial made by Harrah was denied.
This appeal presents for review the lower court's action in entering judgment against, and
denial of Harrah's motion for a new trial. While the caption of the cause describes Young
Investment Company as appellant, this is an error, as the only appellant is William Harrah.
During the oral argument before this court, it was suggested that the questions involved in
this appeal have become moot.
Such conclusion is based upon the fact that Harrah surrendered possession of the litigated
premises on October 26, 1948, and prior to that date Young Investment Company executed
and delivered to respondent a lease covering the premises.
The judgment in this proceeding determined that Harrah was unlawfully in possession of
the premises. Harrah contends that under the proof submitted, his possession was legal. If his
possession were legal, his liability would be based on rental value; if unlawful his liability in
addition to rental value would include such damages as could be shown to have accrued. New
Mexico Motor Corp. v. Bliss, 27 N.M. 304, 201 P. 105.
1. The rule is well established that while a judgment if affirmed may not be enforced by
reason of change of circumstances pending appeal, yet, the subject matter is not moot if the
judgment, if left unreversed precludes the party against whom it stands as to a fact vital to his
rights.
2. We conclude that the legal status of Harrah's possession remains a question for
determination under the judgment.
In reviewing the judgment of the lower court in connection with Harrah's appeal, it must
be kept in mind, that defendant Young Investment Company, has not appealed and apparently
has complied with the judgment and executed a lease to respondent. We concern ourselves
only with the several contentions presented by Harrah's appeal and so much of the record
applicable thereto.
by Harrah's appeal and so much of the record applicable thereto.
3. Appellant's first assignment of error is directed to the action of the lower court and the
order made September 24, 1947, by which Harrah was brought into the proceeding under
section 8565, N.C.L. Supporting this assignment it is urged that the presence of William
Harrah as a party was not necessary to the complete determination of the controversy between
respondent and defendant Young Investment Company. This order of the lower court recites
in part, viz: It appearing to my satisfaction from the verified answer and cross complaint
(Young Investment Company) on file herein, that a complete determination of this
controversy cannot be had without the presence of William Harrah. It is therefore ordered that
William Harrah be brought in as a defendant to this action.
Did the allegations of this answer authorize the court under section 8565, N.C.L. to bring
appellant into the proceeding? The answer of defendant Young Investment Company alleged
that on May 11, 1942 respondent and defendant reached an agreement under the terms of
which respondent surrendered its lease and defendant, with consent of respondent, leased the
premises to William Harrah for at least one year, or until the peace treaties with Japan were
executed, at a rental of $650 per month, $300 of which was payable to respondent and $350
payable to defendant. That respondent could resume possession after peace treaties were
concluded but not before. That in the early part of May 1943, the Harrah lease, with consent
of respondent, was extended to May 15, 1945, or until peace treaties were concluded. That
Harrah on the date said answer was filed was in possession of the premises under terms of
said lease and had complied with all the provisions thereof. That because of these facts
defendant should not be compelled to specifically perform the option agreement, or to let
respondent into possession of the premises. That when the lease of May 1942, was executed,
respondent represented to Harrah, that he, Harrah could have possession until peace
treaties were concluded.
respondent represented to Harrah, that he, Harrah could have possession until peace treaties
were concluded. That in reliance upon said representation Harrah made valuable
improvements upon said premises, had acquired a large amount of good will, is now in
possession and engaged in a profitable business therein. It was further alleged that the peace
treaties had not been signed and Harrah had the continuing right to remain in possession.
The amended complaint not only requested specific performance of the option to lease, but
also demanded possession of the premises. Defendant's answer not only alleged facts existing
in favor of Harrah upon which it was urged that to grant specific performance would be
inequitable but also showed possession in Harrah of the premises involved. These issues
could not be completely determined in the absence of William Harrah.
Section 8565, N.C.L. reads as follows: The court may determine any controversy between
parties before it, when it can be done without prejudice to the rights of others, or by saving
their rights; but when a complete determination of the controversy cannot be had without the
presence of other parties, the court must then order them to be brought in, and thereupon the
party directed by the court shall serve a copy of the summons in the action, and the order
aforesaid in like manner of service of the original summons, upon each of the parties ordered
to be brought in, who shall have ten days, or such time as the court may order, after service,
in which to appear and plead; and in case such party fail to appear and plead within the time
aforesaid, the court may cause his default to be entered, and proceed as in other cases of
default, or may make such other order as the condition of the action and justice shall require.
And when, in an action for the recovery of real or personal property, a person, not a party to
the action, but having an interest in the subject thereof, makes application to the court to be
made a party, it may order him to be brought in, by the proper amendment."
may order him to be brought in, by the proper amendment.
In the case of Bliss v. Grayson, 24 Nev. 422, 451, 56 P. 231, 239, the court states all
persons materially interested, either legally or beneficially in the subject-matter of the suit, to
be made parties to the suit, when their rights will be affected by the final decree. * * *
Again this court in the case of Robinson v. Kind, 23 Nev. 330, 47 P. 1, 977, in construing
this section of civil practice act stated: The provision in the above section as to bringing in
of other parties is not a matter of discretion but of judicial duty and if the parties to the record
neglect to raise the question, the court, upon its own motion will supply the omission.
See also Rutherford v. Union Land & Cattle Co., 47 Nev. 21, 213 P. 1045.
4. The avowed purpose of this section of civil practice act is to have a final and complete
determination of a controversy, not to determine issues piecemeal but to avoid a multiplicity
of suits. We find no error in the court's ruling ordering William Harrah brought in to the
action.
5. Requiring a further construction of this particular statute it is urged that the amended
complaint does not state sufficient or any facts constituting a cause of action against William
Harrah and the lower court erred in rendering judgment against him.
6. To require the complaint to state a cause of action against the party ordered to be
brought in, would restrict and narrow the application of the statute and destroy the legislative
intent in enacting the law. A controversy as provided by the statute and as construed by courts
may be presented by proof submitted as well as by pleadings of the parties as stated by the
supreme court of Idaho in the case of Idaho Trust Co. v. Eastman, 43 Idaho 142, 249 P. 890,
892. It should be remembered that the trial court had the power to bring in any necessary
parties for a complete determination of the issues before it at any stage of the
proceedings, if, by the testimony, such necessity might appear."
in any necessary parties for a complete determination of the issues before it at any stage of the
proceedings, if, by the testimony, such necessity might appear.
It is recognized that some state statutes require that when a party is brought in, an amended
complaint must be filed and served upon such party. Our statute contains no such provision.
When the order is made the party directed by the court shall serve a copy of the summons in
the action, and the order aforesaid in like manner of service of the original summons, upon
each of the parties ordered to be brought in, who shall have ten days, or such time as the court
may order, after service, in which to appear and plead. Sec. 8565.
In the reply brief of appellant Harrah, his contention under this assignment is thus stated:
We simply contend that if a defendant is brought under the statute, the complaint should
have been amended to show some claim or cause of action against him.
The statute specifically sets forth the procedure to be followed when a person is brought
in. By its terms the complaint filed in the action is not directed to be served. The statute does
not require that an amended complaint showing some claim or cause of action be served. It
requires only that the party be served with a copy of the summons and a copy of the order.
7. Under appellant's construction of this statute the controversy mentioned in the statute
must be presented by the allegations of the complaint. If, in enacting this provision of law, it
was the legislative intent to require a cause of action to be stated in the complaint against the
party to be brought in, some provision would have been included in the enactment providing
for service of complaint or amended complaint upon such party. We are not authorized to
read into the act by judicial construction terms or provisions concerning which the act is
silent. When a copy of summons and copy of order is served upon a party it becomes his duty
to determine from the record in the cause whether his right is to be invaded by the
litigation and if so to appear in the action and plead therein.
determine from the record in the cause whether his right is to be invaded by the litigation and
if so to appear in the action and plead therein.
We conclude that this assignment is without merit.
8. It is urged that the lower court erred in its judgment requiring William Harrah to vacate
the premises, in the absence of notice given by the landlord to appellant to vacate.
In reviewing the record in this case it suggests that the question presented is not that notice
to vacate was not served upon appellant, but rather was the notice served to vacate later
nullified or waived by the statement made by Mr. Quinn, president of Young Investment
Company to Mr. Harrah.
In our former opinion in this case Reno Club v. Young Investment Company, supra, in
construing the option agreement, we held that under its provisions there should be restored
to plaintiff, at its option, such portion of the term of the last renewal of the original lease as
remained at the time plaintiff should elect to exercise the option. [64 Nev. 312, 182 P.2d
1022.]
It appears without contradiction that respondent on March 23, 1946, and again on March
26, 1946, served upon Young Investment Company a written notice accepting said option and
demanding a lease. At this time Mr. Harrah was in possession of the premises involved on a
month to month tenancy by lease signed by Young Investment Company.
On May 14, 1946, a written notice addressed to William Harrah was prepared. This notice
informed Mr. Harrah that his tenancy of the described premises was terminated as of June 14,
1946. This was signed by Young Investment Company by Frank P. Quinn and W. M.
Kearney, secretary of the corporation with the seal of the corporation affixed. The record
shows this notice was served by sheriff of Washoe County on Mr. Harrah.
Mr. Harrah testified that after receiving the notice he talked with Mr. Quinn, who informed
him not to pay any attention to it." Mr. Quinn corroborated this testimony.
any attention to it. Mr. Quinn corroborated this testimony. Considering these events in their
natural sequence we find first, the acceptance of the option on March 23 and 26, 1946 by
Reno Club. Second, the official corporate act of the Young Investment Company by and
through their president and secretary preparing, executing and having served upon Mr. Harrah
notice of termination of tenancy.
It is to be kept in mind that at this time the Young Investment Company gave the notice to
Mr. Harrah so that respondent might take possession of the premises having exercised its
right under the option.
We have reviewed the arguments and authorities cited by respective parties under this
assignment and have concluded that the point cannot be sustained.
In the first place the notice of the termination of Harrah's tenancy was a corporate act of
Young Investment Company. There is no testimony in the record tending to show that Mr.
Quinn's statements to Mr. Harrah to ignore the contents of this notice, was authorized by the
corporation, or his action was other than an individual act.
Secondly, at the time this notice was served respondent had exercised its option and Mr.
Quinn was without authority to extend the tenancy of Mr. Harrah by waiving notice of
termination.
There remains for consideration the last assignment urged by appellant.
9. The Young Investment Company by cross complaint alleged grounds for reformation of
the option agreement, asserting that by mutual mistake of the parties, the document did not
express the actual understanding. Appellant urges that the lower court erred in refusing to
permit oral proof as to the true agreement between Reno Club and Young Investment
Company. Also in refusing proof to show mutual mistake, and finally in excluding proof in
support of the allegations of the cross complaint seeking reformation.
The cross complaint seeking reformation was contained only in the answer of Young
Investment Company. No such relief was demanded by the answers of appellant. If any error
was committed by the lower court in its rulings on this matter, such errors could be urged by
Young Investment Company, and this company has not appealed and is not a party appellant
herein.
While we are content to answer this assignment with the statement that appellant presented
no issue by its pleading seeking a reformation of the option agreement and therefore could not
be prejudiced by the courts ruling, we have also carefully considered these rulings and offer
of proof.
10. We are satisfied that full opportunity was afforded Young Investment Company to
present such proof on question of mutual mistake as they were advised, but the court properly
did not permit the reception of testimony not establishing mutual mistake, but tending to vary
the terms of written leases.
We find no error in the record. The judgment of the lower court is affirmed with cost.
July 18, 1949.
Per Curiam:
Rehearing denied.
____________
THE STATE OF NEVADA, on Relation of its DEPARTMENT OF HIGHWAYS,
Respondent, v. VICTOR A. PINSON, Et Al., Appellants.
No. 3546
June 30, 1949. 207 P.2d 1105.
1. Eminent Domain.
Evidence that proposed route for farm and mine to market road offered greater safety to traveling
public and that proposed alternate route was not safe was sufficient to show necessity for the taking of
the proposed route. N.C.L.1929, sec. 9156; St.1945, c. 174.
2. Eminent Domain.
In appropriation of land for public highway, the presumption is that the most suitable and available
location was taken and that the location made by the authorities is necessary and desirable in light of
subordination of private right to public good. N.C.L.1929, secs. 9154-9176; N.C.L.1931-1941 Supp. sec.
9153.
3. Eminent Domain.
The word necessity in statute providing that necessity for the taking is condition precedent to
condemnation does not mean absolute and unconditional necessity as determined by physical causes but
means reasonable necessity under all the circumstances. N.C.L.1929, sec. 9156.
4. Eminent Domain.
In highway condemnation proceeding evidence relating to value of land and damage sustained
warranted award of compensation in amount of $1,589 for land severed and $174.47 for land taken.
N.C.L.1929, secs. 9154-9176; N.C.L.1931-1941 Supp. sec. 9153.
Trial court's acceptance of testimony of litigant's witnesses rather than testimony of opposing litigant's
witnesses is not error.
6. Eminent Domain.
Where trial of issue of just compensation in condemnation proceeding was had less than four months
after complaint was filed and summons was issued, and value of land did not change during such period,
and landowners insisted that values of land should be determined as of time of trial, and testimony as to
values ranged from $1 to $30 an acre, trial court's finding that value of lands severed was $5 per acre and
that value of land taken was $10 per acre would not be disturbed as against contention that value was
fixed as of date of trial in place of date of summons as required by statute. N.C.L.1929, sec.9164.
7. Eminent Domain.
The failure to allow interest from date of order of immediate occupancy in condemnation proceeding
was not error where item of interest was absorbed in judgment and in certain benefits derived by
landowners and landowners' use of land was not seriously interrupted by order for immediate occupancy.
N.C.L.1929, sec. 9169.
8. Eminent Domain.
The admission of further evidence as to necessity of taking at second hearing called for purpose of
fixing compensation in condemnation proceeding rested largely in trial court's discretion. N.C.L.1929,
secs. 9154-9176.
9. Eminent Domain.
The refusal to permit further evidence as to necessity of taking at second hearing called for purpose of
fixing compensation in condemnation proceeding, if error, was not prejudicial where evidence admitted
would not have changed the decisions or findings or conclusion of trial court. N.C.L.1929, secs.
9154-9176.
10. Eminent Domain.
In condemnation proceeding, the burden of proof, once the necessity for the taking has been proved
by condemnor, is on condemnee or landowner to prove value of land taken and also damage resulting to
other lands of landowner by reason of severance, and burden of proof as to benefits accruing to
landowner is on condemnor. N.C.L.1929, secs. 9156, 9159, 9160, 9163, 9171; N.C.L.1931-1941 Supp.
sec. 9153.
Owners whose land was condemned for highway purposes were not deprived of their property without
due process where complaint and summons were served on owners and owners appeared for trial of
issues. N.C.L.1929, secs. 9154-9176.
12. Eminent Domain.
On appeal from judgment in condemnation proceedings, finding of market value, if necessary, would
be implied, where necessity for such finding was not called to trial court's attention either on appellants'
proposed modification of findings or their motion for new trial. N.C.L.1929, secs. 9154-9176.
13. Eminent Domain.
Costs would not be awarded where questions involved in appeal from judgment in condemnation
proceeding were of a public nature and of public moment. N.C.L.1929, secs.9154-9176.
Appeal from Sixth Judicial District Court, Humboldt County; Clark J. Guild, Judge
Presiding.
Condemnation proceeding by the State, on the relation of its Department of Highways,
against Victor A.
Pinson and others. From the judgment and order denying motion for new trial, the defendants
appeal. Judgment and order affirmed.
See, also: 65 Nev. 510, 199 P.2d 631; 66 Nev.
Carville & Carville, of Reno, for Appellants.
General, for Respondent.
OPINION
This is an appeal by condemnees from a condemnation judgment and order and from the
order denying a new trial. Appellants assert a total failure of proof to support the judgment,
both as to the necessity for the taking and as to the compensation. They also contend that they
have been deprived of their property without due process of law and without just
compensation.
The property condemned, as well as the parcel severed, comprised portions of lands that
had been owned by the Pinson family for a great many years and operated by them as a cattle
ranch. Portions of the property had already been condemned for a right of way for the
Southern Pacific Railroad and later by the Western Pacific Railroad. The present
condemnation results in a third taking for a secondary highway connecting with the main
highway known as U S 40. The Pinsons, strenuously objecting because the taking and the
severance both resulted in serious curtailment of their cattle operation, a contention not
disputed by the state, insisted that there was no necessity for the taking, as the road could skirt
their property along the line of the present county road which coincided with an alternate
survey proposed by them for the alignment for this secondary highway.
proposed by them for the alignment for this secondary highway. The suggestion of this
alternate route is the subject of most of the testimony taken concerning the necessity for the
taking and is the basis of the main contention of appellants that the necessity for the
condemnation does not appear.
The desire of the appellants to be let alone so that they might continue their livestock
operations without interference as they and their family have done for at least two
generations, in their continued engagement in one of the major industries of this state, evokes
the sympathetic consideration of this court. These considerations, however, must give way to
the wheels of progress if constitutional guarantees for just compensation and statutory
requirements have been met.
Appellants contend that the condemnation of the route through their property grows out of
convenience, feasibility, economy of construction and maintenance and not out of
necessity. It is true that we find these and similar expressions constantly in the mouths of
the state and federal engineers who testified, and it is likewise true that none of these
witnesses used the terms necessary or necessity in their testimony. We do find, however,
ample testimony that the alternative route suggested by appellants (the only alternate brought
into the case) failed of approval by the state and federal authorities on account of its lack of
highway safety. The condemned route offers greater safety to the traveling public. The
proposed alternate route had excessive grades, grades up to about 8 percent, and had a
considerable angle in it, and sharper curvatures, a minimum radius of 1,000 feet as
against the minimum radius of 3,000 feet on the condemned route. The grades on the
condemned route did not exceed 4 percent. The proposed alternate was disapproved, among
other things, in view of the fact of highway safety. It would have permitted poorer vision
and would have been extra hazardous. It would be unsafe except at greatly restricted
speeds. Mr. Pinson's engineer, testifying in support of the alternate route, found there is
in one place a 7 1J2 percent grade and that to keep it at 6 percent or under, a cut of
approximately 3S feet at the summit would be necessary.
would be unsafe except at greatly restricted speeds. Mr. Pinson's engineer, testifying in
support of the alternate route, found there is in one place a 7 1/2 percent grade and that to
keep it at 6 percent or under, a cut of approximately 38 feet at the summit would be
necessary.
1-3. The foregoing examples of the testimony of the state's expert witnesses are sufficient
to indicate that the trial court was justified in its finding that the taking was necessary. We
may for the purpose of this decision disregard the additional grounds of convenience,
feasibility and economy. Nor do we need to indulge the presumption that the most suitable
and available location was taken. 29 C.J.S., Eminent Domain. sec. 269, p. 1250. Or the
presumption that the location made by the authorities is necessary and desirable in the light of
the subordination of private right to the public good. 18 Am.Jur. 731, Eminent Domain, sec.
105 et seq. We agree with respondent that the word necessity as used in the statute does not
mean an absolute and unconditional necessity as determined by physical causes. If this were
so, the purpose of the statute might well be defeated in the great majority of condemnation
suits. The word necessity must be deemed to mean a reasonable necessity under all of the
circumstances of the particular case. State v. Superior Court, 107 Wash. 228, 181 P. 689;
Samish River Co. v. Union Boom Co., 32 Wash. 586, 73 P. 670. The court found that the
route in question was designated as route 18 by chapter 174, Statutes of Nevada 1945, being
federal aid secondary road No. 613, project No. S. 613, from federal aid route 1 (U S 40),
approximately three miles southeast of Golconda, northeasterly to a junction with Getchell
Mine road, approved by the public road commission, March 4, 1946; that the taking was
necessary for said highway for the use of the public, and that the location was so made as to
be most compatible with the greatest public good and the least private injury; that the use was
a public one and the taking necessary; that the board of county commissioners of
Humboldt County, before the filing of the present complaint, adopted a resolution
approving the changes in the routing of this section of state route 1S as submitted to said
board by the state highway department.
was a public one and the taking necessary; that the board of county commissioners of
Humboldt County, before the filing of the present complaint, adopted a resolution approving
the changes in the routing of this section of state route 18 as submitted to said board by the
state highway department. These findings as to the performance of the acts of official
approval are not controverted by appellants except by certain denials on information and
belief. The action of the county commissioners is assailed by appellants for the reason that
appellants were not notified of the proposed meeting at which the action was taken. Such
attack, however, is made in connection with the claimed absence of due process, which is
briefly discussed later. The compelling reason behind the court's approval of the route chosen
by the engineers of the state and the federal government is simply this. There was only one
other reasonably possible route, the alternate route suggested by appellants. But that proposed
alternate route was not safe. True, the proposed highway was a farm and mine to market
road and not a main highway, but the necessity for the safe road cannot be belittled because
only one life a year may be saved rather than a hundred.
Appellants likewise contend that the award to them is insufficient, and that the record is
devoid of proof to sustain it. Appellants are the owners of section 16, T. 36 N., R. 41 E.,
M.D.M. This section is literally cut in two in a northerly and southerly direction by the new
highway. A few acres are likewise severed from section 21 lying immediately to the south.
This severed portion is for the most part sagebrush land and was used by the Pinson family in
their livestock operations for holding cattle in the spring at a time when they must be
removed from the meadows on the Humboldt river and which is yet too early for turning out
on the public domain under regulations of the Department of the Interior. It contains some
high ground which it is necessary to use in times of flood conditions. Its main use appears to
be in fall when the cattle come off the higher ranges and the enclosed field is used for
holding, classifying and segregating the livestock in the methods familiar to all cattlemen.
appears to be in fall when the cattle come off the higher ranges and the enclosed field is used
for holding, classifying and segregating the livestock in the methods familiar to all cattlemen.
There is no doubt but that the severance works not only a hardship but a definite and distinct
detriment and damage to appellants in connection with their livestock operations. They also
express a perhaps well-grounded fear that more of their cattle will be struck by cars and
trucks on the highway, and more will be subject to depredations by cattle rustlers.
1
They
discount any benefit that would result from constructing one or more underpasses under the
highway to permit the passage of the cattle back and forth from the severed half section to
other portions of their property and to two watering places where the livestock water. They
assert that the severed half section becomes worthless to them by reason of its severance and
claim their damage in the sum of $7,500. The state and the district court accepted the
proposition that the severed land would be useless to appellants, and respondent's witnesses
fixed a top valuation of $3 an acre for the severance, plus $7 an acre for the land actually
taken for the highway. Adjoining lands of similar character could be purchased for $1.25 an
acre. Some restricted use can still be made by appellants of the severed 317.8 acres. Provision
was made by the court for the construction of fences and gates, as well as for an additional
road to the ranch house of appellants. The court allowed $5 an acre for the land severed
($1,589) and $10 an acre for the land taken ($174.47). No purpose would be served in
reviewing the testimony of the parties as to values.
____________________

1
This is not the typical cattle rustling of the old days. There is no running of a brand with a hot cinch ring
on a slick-ear calf or altering the brand on a steer while the cow pony sits back on the rope. There is no
driving of a bunch into the bad lands or into some hidden canyon to await an opportune time to be driven to a
far market across the state line. Modern cattle rustling consists of a quick kill with a rifleshot and the hauling off
of the carcass in a light truck. Losses from this source have been considerable. Thus, in accord with the times,
the man with a fast horse and a long rope has given way to the man with a fast truck a good rifle.
would be served in reviewing the testimony of the parties as to values.
4, 5. All proper elements offered by any of the parties were apparently taken into
consideration, and the findings as to value and damage find ample support in the evidence.
We are, in effect, asked to say that the trial court was in error in accepting the testimony of
respondent's witnesses rather than the testimony of appellants and their witnesses. This we
cannot do. Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747.
6. Counsel assert error in the fixing of the value of the land as of the date of the trial in
place of the date of the summons as required by statute. The complaint was filed and
summons issued October 27, 1947, and the trial of the issue of just compensation had
February 17, 1948, less than four months later. There is nothing in the case to indicate any
possible change of value during this brief period. Photographs received in evidence present
the land as typical sagebrush land. Counsel for appellants, on objecting to testimony as to
value during periods claimed to be too remote, insisted: We want to determine the value of
the land now, and when the state offered in evidence certain deeds executed in 1945 again
insisted: The time to be determined is now, the value of the land today. Appellants did not
insist that the value to be fixed was that of four months earlier, namely, the date of the
summons. Testimony as to values ranged from $1 and $2 per acre through $3, $15, $17.50,
$20 to $30 an acre. The finding of the court on such evidence will not be disturbed by us
under the circumstances. Friendly v. Larsen, 62 Nev. 135, 144 P.2d 747.
7. At the time of the filing of plaintiff's complaint an order of immediate occupancy was
entered by the court upon plaintiff's motion. It is asserted by appellants that the judgment
must be reversed because interest from the date of the order of immediate occupancy was not
allowed. Such interest would have amounted to less than $50.
than $50. Remarks made by the learned district judge in the course of the trial indicate that he
considered this item absorbed in the judgment and in certain benefits derived by appellants,
and that as a matter of fact the appellants' use of the land was not seriously interrupted by the
order for immediate occupancy. We are not disposed to disturb the judgment by reason of the
point raised, although the allowance of interest is undoubtedly proper if not balanced or offset
by other items.
8, 9. Appellants contend that at the second hearing, called for the purpose of fixing
compensation, the court erred in not permitting them to introduce further evidence to the
effect that the taking was not necessary. A formal offer of evidence was made with the
ostensible purpose of showing that ranchers and stockmen to be served by the road were few
in number and that mining operations to be served could not be considered permanent. The
matter was largely in the court's discretion. While we have not reviewed the evidence as to
the extent of the use of the road, we may note here that it included testimony of counts and
tabulations made at various times of the numbers of cars and trucks using this road. It is clear
to this court, after a consideration of all of the evidence in the case that even if the evidence
had been admitted, it would not have changed the decision, the findings or the conclusion of
the trial court. If there was any error in rejecting this testimony, we do not consider the same
prejudicial. At the conclusion of the testimony at the first hearing on the questions of
necessity for the taking and the application for an order for immediate occupancy, counsel for
appellants stated: Of course if the court finds, or gives them permission to make the survey
and advertise, of course that settles it so far as where the route will go, and of course the
matter of damages comes up.
10. After respondent had proved the necessity for the taking, the district court ruled that
the burden of proving the value of the land taken and the damage resulting from the
severance was upon appellants.
resulting from the severance was upon appellants. The decisions of the various courts of last
resort in the United States are hopelessly in conflict as to the question of where lies the
burden of proof. See 20 C.J. 982, Eminent Domain, sec. 386; 29 C.J.S., Eminent Domain,
sec. 271, p. 1256; Ann.Cas.1916D, 958, note; 18 Am.Jur. 985, Eminent Domain, sec. 342.
Much of the conflict results from the particular statutory provisions in question. In this state
eminent domain proceedings are governed by secs. 9153-9176 inc., Nevada Compiled Laws
1929, as amended. The question arises in the present case through the motion made by the
appellants for a dismissal of the respondent's case after the respondent had proved the
necessity for the taking and rested. Appellants insist that at such stage of the proceedings no
judgment could have been renderedthere being no proof as to the value of the land taken or
as to damages to the appellants by reason of the severance. We are disposed to follow in this
state the rule established in what we think is the majority of the decisions, that the burden of
proof (once the necessity for the taking has been proved by the condemnor) is upon the
condemnee or landowner to prove the value of the land taken and also the damage resulting to
other lands of the landowner by reason of the severance. Such rule is, we think, contemplated
by our statutes. The taking of land for the purposes of public roads is expressly authorized by
N.C.L. sec. 9153. A complaint for condemnation is required by sec. 9159 to state only the
name of the court, the names of the parties and a statement of the right of plaintiff, and must
be accompanied by a map (if a right of way be sought) showing its location, route and
termini, and a description of the land to be taken. No allegation of value or of damage is
required. That the parties are not strictly plaintiff and defendant in such a proceeding is
indicated by the requirements of sec. 9159 that the person in charge of the public use for
which the property is sought must be "styled" plaintiff and the owners, occupants and
claimants of the property must be "styled" defendants.
which the property is sought must be styled plaintiff and the owners, occupants and
claimants of the property must be styled defendants. Under sec. 9160 interested parties,
though not named as defendant, may appear, plead, and defend, each in respect to his own
property or interest, or that claimed by him, in like manner as if named in the complaint. It is
significant that sec. 9156, N.C.L. provides that before property can be taken it must appear:
1. That the use to which it is to be applied is a use authorized by law. 2. That the taking is
necessary to such use. Subdivision 3 is not applicable. The necessity for proof of value and
damage is not in this section listed among the conditions precedent to condemnation. Section
9163, N.C.L. provides: The court, jury, commissioners, or referee must hear such legal
testimony as may be offered by any of the parties to the proceedings, and thereupon must
ascertain and assess the value of the property taken, the damages resulting from a severance
and also the benefits accruing to the defendants. Section 9171 makes the Civil Practice Act
applicable to condemnation proceedings.
In Las Vegas & Tonopah R. R. v. Summerfield et al., 35 Nev. 229, 129 P. 303, 304, a
condemnation case, one E. S. Johnson, among other claimants to the property, intervened and
the district court awarded damages to the interveners. In reversing the judgment in favor of E.
S. Johnson, this court said: The interveners neither alleged nor proved any damages to
themselves other than might be held to follow from a bare allegation and proof of ownership
of the two mining claims in question. This was directly responsive to the contention raised
by appellants Summerfield & Johnson that no proof of damage having been made, [by
intervener E. S. Johnson] none can be awarded. * * * We accordingly find in this case and in
our statutes above quoted support for the adoption of the rule in this state that the burden of
proof, both as to the value of the land taken and as to the accruing damage to other lands
growing out of the severance, is upon the landowner.
the land taken and as to the accruing damage to other lands growing out of the severance, is
upon the landowner. The burden of proof as to benefits accruing to the landowner is naturally
upon the condemnor. In this view of the situation it becomes unnecessary to discuss the many
authorities cited by both parties. It may be noted that some of the courts in placing the burden
of proof of damages upon the landowner appear rather to consider this a privilege to him, as
giving him the right to open and close. As was said by the court in Kansas City, etc., Railway
v. Haake, 331 Mo. 429, 53 S.W.2d 891, 895, 84 A.L.R. 1477: We will also say that the court
properly permitted the defendant to open and close the case, thereby assuming the burden of
proving the amount of his damages. In the present case when the question was raised, the
trial court said: Now it doesn't make a great deal of difference after all, it is the opening and
closing, that is just about the difference it makes. I am sure that both sides will be given every
opportunity. * * *
11. Appellants' contention that they were deprived of their property without due process is
disposed of by the case of Schrader v. District Court, 58 Nev. 188, 73 P.2d 493. The record of
the service of complaint and summons and the appearance of the defendants and the trial of
the issues in the instant case bring it clearly within the simple requirements of the Schrader
case to show due process.
12. Error is assigned in the failure of the court to find the market value of the land.
Assuming for the sake of argument that such a finding should have been made, it was not
called to the court's attention either on appellant's proposed modification of the findings or
their motion for new trial, and such finding, if necessary, will now be implied. Dutertre v.
Shallenberger, 21 Nev. 507, 34 P. 449.
The briefs are somewhat voluminous and other points have been discussed and authorities
cited. We have given them all due consideration, but do not feel that further discussion is
justified.
given them all due consideration, but do not feel that further discussion is justified.
13. The judgment and order denying the motion for new trial are hereby affirmed.
Inasmuch as the questions involved in the appeal are of a public nature and of public moment,
no costs will be awarded. McBroom v. City of Flint, 266 Mich. 679, 254 N.W. 468; Samuels
v. Couzens, 222 Mich. 604, 193 N.W. 212; 20 C.J.S., Costs, sec. 292 P. 540. See, also,
Agricultural Insurance Company of Watertown v. Biltz, 57 Nev. 389, 64 P.2d 568.
____________
66 Nev. 239, 239 (1949) Spino v. Stoughton
SAM SPINO, Appellant, v. RALPH STOUGHTON and FRANK BARBARO, Doing
Business Under the Name and Style of NEVADA BILTMORE HOTEL, RALPH
STOUGHTON AND FRANK BARBARO, as Individuals, Et Al., Respondents.
No. 3552
July 6, 1949. 207 P.2d 1101.
1. Landlord and Tenant.
In action to recover allegedly unused portion of prepaid rental for gambling casino, evidence
sustained trial court's finding that rental had not been reduced as claimed by lessee and that he had
operated casino for the full period for which rentals had been prepaid.
2. Partnership.
Evidence sustained trial court's finding that defendant was not indebted to plaintiff for money loaned
by plaintiff to defendant's former partner after dissolution of partnership and sale of partnership business
to former partner, though business was thereafter retransferred to defendant to be sold or operated by him
and proceeds applied upon debts of the parties.
Action by Sam Spino against Ralph Stoughton and another, doing business under the name
and style of Nevada Biltmore Hotel, and others to recover on an implied contract to pay an
alleged indebtedness due plaintiff.
Nevada Biltmore Hotel, and others to recover on an implied contract to pay an alleged
indebtedness due plaintiff. From a judgment in favor of defendants and an order denying
motion for new trial, plaintiff appeals. Judgment and order affirmed.
Jones, Wiener & Jones, of Las Vegas, and Nicholas Catri, of Sandusky, Ohio, for
Appellant.
George E. Marshall, of Las Vegas, for Respondents.
OPINION
This is an appeal from a judgment in favor of defendants and from an order denying
plaintiff's motion for a new trial. To avoid confusion the parties are referred to by their names
rather than identified as parties plaintiff, defendant, appellant or respondent.
Sam Spino sued Ralph Stoughton and Frank Barbaro individually and as partners doing
business under the name and style of Nevada Biltmore Hotel, alleging that, being indebted to
the plaintiff on June 18, 1947 in the sum of $16,500 and in consideration of such
indebtedness, they promised to pay him that sum on demand but have failed to do so. At the
time of the filing of the complaint a writ of attachment was issued on the basis of an affidavit
executed by one of Spino's attorneys reciting that the defendants were indebted to plaintiff for
$16,500 upon an implied contract for the direct payment of money, to wit: For advance
rental remaining unused. Plaintiff's undertaking for attachment likewise recited that the
action was upon a contract for the direct payment of money, namely, $16,500. Stoughton
answered and denied these allegations. Barbaro did not appear and the record does not
show that he was served.
did not appear and the record does not show that he was served. At the conclusion of the trial
the court rendered an oral opinion and decision from the bench and later signed its findings
comprising one single finding of fact that Stoughton was not on June 18, 1947 indebted to
Spino for $16,500, or at all. The only objection made to the finding was that the court should
have found that Stoughton was indebted. On the court's findings, judgment was rendered in
favor of defendant Stoughton for costs and that plaintiff take nothing. No judgment was
rendered with reference to Barbaro and he is not involved in the appeal. Spino moved for a
new trial on the ground of insufficiency of the evidence and errors in law occurring at the
trial, which motion was denied. Appellant recognizes the rule that this court will not disturb
the findings or judgment based upon a substantial conflict in the evidence, but insists that the
uncontradicted evidence shows the indebtedness of Stoughton to Spino and Stoughton's
promise to pay. He insists that the contrary finding (we assume that the finding of no
indebtedness included the implied finding that there was no promise to pay) results from the
court's misconstruction of a certain instrument admitted in evidence as plaintiff's Exhibit B;
that such misconstruction was an error in law which this court is at liberty to correct. A
review of the facts is necessary.
The situation could happen only in Nevada where open gambling is licensed and where the
license fees for conducting the games of roulette, craps, twenty-one, faro bank, poker, race
horse keno and other games,
1
and the tax of 2 percent on the gross winnings
2
form a
material part of the revenues with which the state conducts its business. Gambling
casinos, operated independently as such and in connection with most of the large hotels
and nightclubs in the state, or the leasehold interests in such casinos {generally including
ownership of the gambling paraphernalia as well as the stock of liquors, etc., in the ever
attendant bars) are sold for enormous sums with little or no formality.
____________________

1
An establishment operating three games pays a license fee of $750 a year; for four or five games, $1,750;
for six or seven games, $3,000; for eight to ten games, $6,000; for eleven to thirteen games, $10,000; for
fourteen to twenty games, $20,000; and for twenty-one or more games, $30,000. Nev.Stats.1947, p. 734. Slot
machines pay a license fee of $10 a month each. N.C.L. sec. 3302.01.

2
Nev.Stats.1947, p. 734.
material part of the revenues with which the state conducts its business. Gambling casinos,
operated independently as such and in connection with most of the large hotels and nightclubs
in the state, or the leasehold interests in such casinos (generally including ownership of the
gambling paraphernalia as well as the stock of liquors, etc., in the ever attendant bars) are
sold for enormous sums with little or no formality. A memo on the cuff is all that evidences
many such a transaction. The gambler's
3
word is as good as his bond and if litigation
sometimes results from the transactions, as in the instant case, it is generally caused by a
difference of opinion as to the precise circumstances or legal effect of some particular
transaction. Such has occurred in the present case.
Prior to March 22, 1947 Stoughton had a lease from Nevada-Biltmore Hotel Corporation
on the Nevada Biltmore Hotel at Las Vegas. This included the hotel proper and the gambling
casino conducted in connection therewith. On that date, however, he entered into a
partnership with Barbaro (the partnership had existed since February 15 under an oral
agreement). By the written articles of partnership of March 22, Stoughton's lease was
assigned to the partnership and they operated as partners until May 27, 1947. (The lease
contained no covenant against assignment or subletting.) The operation did not prove
profitable and the partnership was in straitened financial circumstances. The record indicates
that this was at least in part due to expensive entertainment provided as attractions to the
patrons, which ran as high as $10,000 a week or more.
____________________

3
In Nevada a gambler is not a man who gambles, despite the dictionary definitions to such effect. A
gambler is one who conducts the various gambling games mentioned above. The percentage in favor of the
gambler is such that, given a sufficient volume of play, such percentage, under the laws of chance and of
averages, is bound to result in profit to the gambler if not offset by the expense of the operation or other
unexpected and unusual circumstances. Roulette odds average a take by the house of $5.42 of every
$100.00. Percentage against the player at craps is about 1.5 percent; at twenty-one, 2 percent, etc.
entertainment provided as attractions to the patrons, which ran as high as $10,000 a week or
more. For a period of time $9,000 a week was paid for one act. About May 20, 1947 Barbaro
left and his whereabouts for some days was unknown. He was located, however, on May 27,
at which time the partnership was dissolved by a written memorandum, Stoughton was paid a
consideration by Barbaro, to be discussed later, and assigned the entire lease and business,
etc., to Barbaro. At about this time, or more precisely on May 22, Spino came into the picture.
On that date the operation of the casino was turned over to him. He was first introduced to
Stoughton about May 15. The oral arrangement made with Spino was that he was to take over
the casino for a consideration of $500 a day rental in addition to 50 percent of the net
winnings. However, Stoughton was at the time embarrassed by lack of cash, as he had
planned on a sale for a cash consideration rather than a lease, and Spino lent him $10,000 in
cash, advised that he wanted no security, and accepted Stoughton's I.O.U. for $10,000. Spino,
in addition, paid $500 a day in cash on May 22, 23, 24, 25, and 26, respectively, as rental of
the casino for those days. On May 26 or 27 Spino informed Stoughton that he knew where
Barbaro was. They got in touch with him at his motel in Las Vegas on May 27 and following
a conference Stoughton executed a new memorandum with Barbaro, mentioned above,
assigning the lease to him. There is a material conflict in the testimony as to just how the
consideration passed and what it amounted to, but the trial court's oral opinion, amply
justified by the testimony, indicates that at this meeting Spino handed Barbaro $10,000 in
cash and also the $10,000 I.O.U. that Stoughton had theretofore executed and delivered to
Spino. This aggregate of $20,000 Barbaro in turn delivered to Stoughton. Stoughton
thereupon tore up the I.O.U. and pocketed the $10,000. It was simply a $20,000 cash
transaction for the assignment by Stoughton to Barbaro of the former's interest in the
business, etc.
$20,000 cash transaction for the assignment by Stoughton to Barbaro of the former's interest
in the business, etc. At this point Stoughton owed Spino nothing, and the understanding was
that Spino's aggregate advance of $20,000 comprised a prepayment of forty days' rental of the
casino at $500 a day. The meeting of May 27 was attended by Spino, Mr. and Mrs. Barbaro,
Stoughton and two other persons.
On June 4 Spino lent Barbaro $4,000 cash and on June 6 he lent him an additional $4,000
in cash.
On June 18 Stoughton at Las Vegas called up Spino in Sandusky, Ohio, and urged him to
come out at once, as Barbaro had advised that he was in a very bad fix at the Nevada
Biltmore Hotel, that Barbaro was going to leave, that Stoughton didn't know for sure what he
was going to do but that he was going to try to hold the place together until he got some of the
bills paid off, but that he needed financial help. Licenses, taxes and rentals were all payable,
and the lease was in danger of being lost, together with a forfeiture deposit of $20,400 made
to the Nevada-Biltmore Hotel Corporation. Spino offered to pay $100 a day if that would
help. Stoughton said anything would help. Stoughton said that his deal with Barbaro was off
and a new arrangement would have to be made. Appellant claims that the effect of the
conversation was that the arrangement for Spino's $500 per day rent payments was off and
that in place of this he was to pay $100 a day. The district court found otherwise, and that the
$100 a day was to be an additional sum. As to such $100 per day the learned district judge
said: It could amount to a loan. It could amount to a donation. It could amount to advance
rents. It seems to the court immaterial what it is, but it was paid. It was paid for twenty-two
days, June 19 to July 10, inclusive. There is $2,200 he paid, and he really didn't have to pay it.
He just did it because he wanted to keep the place going, and probably to try to salvage what
he had in the place and to use up the balance of his rents."
up the balance of his rents. This conclusion finds ample support in the testimony of
Stoughton and also of Berry who was co-manager of the casino from May 22 to June 18.
On June 19 Stoughton and Barbaro entered into a new agreement which recited the
operation of the premises under the lease from Nevada-Biltmore Hotel Corporation for the
period February 15-May 27, 1947, the dissolution of the partnership on the later date and the
further indebtedness that had accrued from May 27 to June 17 in the aggregate of
approximately $53,000, and Barbaro agreed that Stoughton was to have sole and exclusive
management (Barbaro executing a complete bill of sale) and the right to sell the business,
including the leasehold interest, and that upon such sale if one shall be made [Stoughton]
shall apply all of the proceeds of such sale upon the debts of the parties hereto; that a
deficiency should be borne equally by the parties; that the auditor should prepare a correct
statement of account, and all debts owed by either of the parties since February 15, 1947, to
and including June 17, 1947, and this audit shall be the basis upon which the parties hereto
obligated themselves; and that if Stoughton elected to operate the premises, as a result of
which he could pay all of the debts accumulated, he was to be sole owner, and Barbaro
waived any further claim. The record discloses neither a sale by Stoughton, nor such
operation by him as to enable him to pay the debts. Outside of Barbaro's departure on June 19
and Spino's departure after July 10, we are not advised as to the fate of the casino or the
Nevada-Biltmore lease.
Appellant contends that Stoughton was in any event liable as a partner for all of the debts
accruing during the entire period discussed; that these debts included the indebtedness to
Spino and that by the foregoing instrument Stoughton definitely assumed and promised to pay
Spino; and that the district court's conclusion that Stoughton did not thereby assume the
payment of accounts that had accrued subsequent to the dissolution of the partnership on
May 27 was such a palpable misconstruction of the contract as to constitute an error at
law which must result in a reversal.
accounts that had accrued subsequent to the dissolution of the partnership on May 27 was
such a palpable misconstruction of the contract as to constitute an error at law which must
result in a reversal.
We are unable to agree with this reasoning. Spino was not a party to and did not sue on the
contract of June 19 between Stoughton and Barbaro as a contract entered into between the
latter two for Spino's benefit. The contract was simply one item of evidence introduced to
support Spino's claim that Stoughton, being indebted to him for $16,500, had agreed to pay
him that sum. The affidavit for attachment, as we have noted, claimed that the indebtedness
grew out of an implied contract to pay. Stoughton denied the alleged indebtedness from him
to Spino but admitted on obligation to him, which obligation was apparently his obligation
to see that Spino was permitted to remain in possession and control of the casino for the
entire term of his prepaid rental. Such undisturbed possession from May 22, 1947 to and
including July 10, 1947, was frankly admitted by Spino.
1. Appellant's brief simplifies the matter still further. He contends: It is for these sums,
the unexpended balance of the $20,000, amounting to $8,500 and the loans to Barbaro
amounting to $8,000 for which plaintiff seeks judgment. Even if we assume that the
complaint stated a partial failure of consideration for the $20,000 payment, that only part of
its consideration had been paid and that Spino was entitled to return of the balance,
nevertheless the $20,000, paid as advance rental at the rate of $500 per day, was, as a matter
of fact, entirely consumed. Spino actually operated the casino from May 22 through July 10.
Appellant's answer to this is that by the telephone conversation of May 27 it was agreed that
the rentals should be reduced from $500 a day to $100 a day, that Stoughton's statement that
the whole deal was off and Spino's agreement to advance $100 a day cash abrogated the
whole agreementin effect that there was a novation. But both Stoughton and Berry
testified that it was the deal between Stoughton and Barbaro that was called off and the
district court was justified in so holding.
and Berry testified that it was the deal between Stoughton and Barbaro that was called off and
the district court was justified in so holding. Another factor likewise justifies this. The $500
per day arrangement included the payment by Spino of half of the net profits. Appellant does
not even suggest what division or disposition of all or any part of the net profits was to go to
the respective parties under Spino's agreement to pay $100 a day. To abrogate the $500 a day
arrangement a new contract would necessarily have to provide for some disposition of the net
profits. Accordingly Spino's prepayment of $20,000 for rental at $500 a day was completely
compensated. He operated for forty-five days, which would amount in rentals to $22,500. The
cause of action for $8,500 for unused rentals, even if we deem that it was properly pleaded,
therefore entirely fails.
2. There remains only the matter of the two $4,000 payments of June 4 and June 6,
respectively, which Spino made to Barbaro, and not the partnership, while Barbaro was
operating for himself after the dissolution of partnership of May 27. Under Stoughton's
testimony, and under the documentary evidence showing Barbaro's receipt of these loans, the
district court had substantial evidence to support its finding that Stoughton was not indebted
for the payment to Spino of this sum. No attempt was made to show any new consideration
under a separate cause of action under the theory that Spino as a beneficiary could or did sue
on the contract of June 19 between Stoughton and Barbaro.
We are still left with the fact that Spino paid an additional $100 a day for twenty-two days
aggregating $2,200. Appellant's brief, however, shows that he claims no reimbursement or
cause of action growing out of this item.
In the oral argument of this case counsel for the respective parties consumed but fifteen
minutes eachsomething of a record for brevity in this court. They discussed the facts only
and not a single authority was cited.
cited. We find with some amazement that we have likewise cited no authorities in this
opinion. All this fortifies us in our conclusion that the question is one of fact only. But three
witnesses testified, Spino, Stoughton and Berry. The court accepted the testimony of
Stoughton, corroborated on the main issue by Berry, and supported by the documentary
evidence. We have no other course open other than to affirm the judgment and the order
denying a new trial, with costs to respondent. It is so ordered.
____________
66 Nev. 248, 248 (1949) Tallman v. First National Bank
ALICE ROBB TALLMAN, Appellant, v. FIRST NATIONAL BANK OF NEVADA, a
Corporation, as Administrator With the Will Annexed of the Estate of Frederick J.
Cavanagh, Also Known as Frederick Jerome Cavanagh, Deceased, Respondent.
Nos. 3567, 3568
July 8, 1949. 208 P.2d 302.
1. Witnesses.
The test of transactions with deceased within dead man's statute excluding testimony concerning
transactions with deceased, is whether deceased, if living, could contradict witness of his own knowledge.
N.C.L.1929, sec. 8966.
2. Witnesses.
Provision of dead man's statute prohibiting testimony in an action against the representative of a
deceased person when the facts to be proven transpired before death of deceased, is not limited to a claim
or demand against the estate. N.C.L. 1929, sec. 8966.
3. Witnesses.
The object of dead man's statute prohibiting testimony when the other party to the transaction is dead
is to place the living and the dead upon terms of perfect equality and the dead not being able to testify,
the living shall not. N.C.L.1929, sec. 8966.
4. Witnesses.
In actions against an administrator, to impress a trust upon assets of estate of decedent, trial court,
under the dead man's statute, properly excluded testimony of plaintiffs as to
transactions between plaintiffs and decedant, and as to transactions between
plaintiffs and decedent's wife who was also dead, although the actions were not
claims or demands against the estate.
statute, properly excluded testimony of plaintiffs as to transactions between plaintiffs and decedant, and
as to transactions between plaintiffs and decedent's wife who was also dead, although the actions were not
claims or demands against the estate. N.C.L.1929, sec. 8966.
5. Evidence.
Under the parol evidence rule all prior negotiations and agreements are deemed merged in the
written contract, and parol evidence is not admissible to vary or to contradict its terms.
6. Evidence.
Where fraud or mistake is alleged and proved, it is proper to admit testimony to show the real
agreement between the parties, but it is not proper, simply on the allegation of fraud or mistake, and
without proof to establish the allegation, to permit parties to offer parol evidence to contradict the writing
which purports to contain the contract between them.
7. Evidence.
Parol evidence of fraud is admissible to establish invalidity of written instrument, where parol
evidence tends to establish some independent fact or representation, or some fraud in procurement of
instrument, or some breach of confidence concerning its use, and does not concern some promise directly
at variance with written promise.
8. Pleading.
Allegation that promises allegedly made by defendant's decedent, and by decedent's wife, were
believed to have been made without intent to carry out the promises, and lacking any facts upon which
the belief was founded, was not a proper pleading of fraud.
9. Fraud.
The fact that a promise made is subsequently not performed does not give rise to an inference of a
fraudulent intent.
10. Evidence.
In actions against administrator to impress a trust upon assets of estate of decedent, evidence did not
establish that alleged written promises made when conveyances of land were made by plaintiffs to
decedent's wife, which decedent promised to fulfill, were made with intent not to carry them out, so as to
render admissible parol evidence of agreements at variance with written instruments.
11. Evidence.
In actions to impress trust upon estate of decedent who allegedly had promised to fulfill his wife's
promises to plaintiffs, evidence did not establish fraud justifying admission of parol evidence to prove
alleged agreements between plaintiffs and decedent's wife whereunder wife was to create a life estate in
land for one plaintiff and a trust estate for the other plaintiff which were at variance with written
instruments executed when plaintiffs conveyed land to wife.
12. Evidence.
Clearest and most convincing evidence is necessary to establish fraud justifying admission of parol
evidence of agreements at variance with written instruments.
Action by Clement D. Robb against First National Bank of Nevada, as administrator cum
testamento annexo of the estate of Frederick J. Cavanagh, deceased, and by Alice Robb
Tallman against the same defendant, to impress a trust upon assets of estate of deceased.
From a judgment for defendant and an order denying plaintiff's motion for a new trial in each
case, plaintiffs appeal. The appeals were consolidated. Judgments and orders affirmed.
Chas. L. Richards, of Reno, for Appellant.
John S. Belford, of Reno, for Respondent.
OPINION
Action by Clement D. Robb against First National Bank of Nevada, as administrator, c. t.
a. of the estate of Frederick J. Cavanagh, deceased, and by Alice Robb Tallman against the
same. From a judgment for defendant and an order denying plaintiff's motion for a new trial
in each case, plaintiffs appeal. Upon stipulation and order the appeals were consolidated.
In 1934 plaintiffs, their sister, Anna Robb Cavanagh, three other brothers and sisters and a
niece, owned certain improved real property in Reno, Nevada, each owning an undivided
one-seventh interest therein. In that year the niece, Virginia A.
year the niece, Virginia A. Bernard, commenced an action against the other co-owners of the
property for partition and an accounting of the rents and profits thereof.
After negotiations, Virginia A. Bernard agreed to give up all claim to said property if she
were paid the sum of $2,500. Anna Cavanagh told her co-owners that she did not have
sufficient money to settle with the niece and that the bank would not lend money upon the
security of the property unless it was in her name. At that time, and on March 23, 1935, Mrs.
Cavanagh had on deposit in a bank the sum of $5,793.24, and her husband, Frederick
Cavanagh, had on deposit the sum of $3,623.71.
On March 23, 1935, each other co-owner conveyed by deed his and her interest in said
property to Mrs. Cavanagh. On the same day appellant Tallman executed and delivered to
Mrs. Cavanagh a general release and entered into a written contract with her under the terms
of which said appellant was to continue to occupy a portion of said premises rent free so long
as she cared for Frank Robb, her brother.
On the same day appellant Robb executed and delivered to Mrs. Cavanagh a similar
release and the parties entered into a written contract. This contract provided for the
execution and delivery of said release and deed and in consideration therefor, Mrs. Cavanagh
agreed to forgive his indebtedness to her in the amount of $2,427.49, and to give him a
promissory note in the amount of $800. Thereafter Mrs. Cavanagh borrowed the necessary
money from the bank and settled the action brought by the niece.
In addition to the foregoing the complaint in the Tallman action alleges:
That at said time said Anna Cavanagh promised plaintiff that if she would give her a deed
to her interest in said property she, Anna Cavanagh, would release the claim she held against
her, and in addition thereto she would, by will, create a life estate in the lands and premises
{above mentioned) * * * for the use and benefit of plaintiff."
would, by will, create a life estate in the lands and premises (above mentioned) * * * for the
use and benefit of plaintiff.
The complaint in the Robb action alleges:
That at said times, said Anna Cavanagh promised plaintiff that if he would give her a
deed to his interest in said property, she would execute and deliver to him a promissory note
in the sum of Eight Hundred ($800.00) Dollars, which she would to able to, and would pay as
therein provided, and as further consideration she would hold and preserve for him his said
interest in said property, that he would always have a home with her or place to live free of
rent, and that she would, by will, create a trust fund with sufficient security to adequately take
care of plaintiff during his entire remaining life.
Both complaints then allege that Mrs. Cavanagh repeated these promises at various times;
that she died on November 25, 1946, and left a will under which all her property, including
said real property went to her husband, Frederick J. Cavanagh; that a few days prior to her
death she extracted a promise from him to carry out her promises to plaintiffs; that thereafter
on various occasions Mr. Cavanagh assured plaintiffs that he would carry out said promise;
that Mr. Cavanagh died on October 25, 1947, without having carried out said promises and
left a will under which all his property went to his brothers and sisters; that respondent was
appointed administrator c. t. a. of his estate; that plaintiffs filed claims with said administrator
based upon the foregoing, which were rejected.
Appellants seek to impress a trust upon the assets of the estate of Frederick J. Cavanagh,
deceased, now in the hands of respondent as administrator, for the purpose of carrying out the
alleged promises of Mr. and Mrs. Cavanagh.
Among other things the lower court found that the release and contract, in each case,
constituted the entire understanding of the parties; that there were no agreements or
representations by or between the parties other than as therein set forth; that a few days
prior to the death of Anna Cavanagh she invoked from her husband a promise to carry out
her promise and that there was no evidence as to what her promise was.
understanding of the parties; that there were no agreements or representations by or between
the parties other than as therein set forth; that a few days prior to the death of Anna Cavanagh
she invoked from her husband a promise to carry out her promise and that there was no
evidence as to what her promise was.
Many of appellant's assignments of error deal with the exclusion of testimony sought to be
elicited from them relative to transactions between them and decedents. They take the
position that since, under their theory of the cases, the actions were not upon a claim or
demand against the estate but to impress a trust upon certain of the assets comprising it,
appellants should have been permitted to testify as to such transactions. To sustain this
position numerous California cases are cited. These cases are not in point for the reason that
their statutory background is dissimilar to that of the cases at bar. Our statutes provide:
No person shall be allowed to testify:
1. When the other party to the transaction is dead.
2. When the opposite party to the action, or the person for whose immediate benefit the
action or proceeding is prosecuted or defended, is the representative of a deceased person,
when the facts to be proven transpired before the death of such deceased person: * * *. Sec.
8966, N.C.L.1929.
The following persons cannot be witnesses: * * *
3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an
action or proceeding is prosecuted, against an executor or administrator upon a claim or
demand against the estate of a deceased person, as to any matter of fact occurring before the
death of such deceased person. Sec. 8970, N.C.L.1929.
The only statute of California dealing with this matter is sec. 1880, Code of Civil
Procedure, which is identical to sec. 8970, N.C.L.1929, quoted above. All the cases relied
upon by appellants are based upon this section only and no consideration is given by them
to a statute similar to sec.
relied upon by appellants are based upon this section only and no consideration is given by
them to a statute similar to sec. 8966, N.C.L.1929.
At one time sec. 393 of the Practice Act of California contained provisions identical to
those found in our sec. 8966, supra, Davis v. Davis, 26 Cal. 23, at page 34, 85 Am.Dec. 157,
but the section was repealed in 1870. See 11 Cal.Jur. 804.
As was said in Booth v. Pendola, 1890, 88 Cal. 167, 23 P.200, 201, 25 P. 1101:
It is to be observed that at one time a party was prohibited from testifying in any case
where the adverse party was the representative of a deceased person,' as to facts which
occurred before the death of the deceased. * * * The law was changed to the present
provision, which is that a party cannot be a witness in an action against an executor or
administrator upon a claim or demand against the estate of a deceased person.' (Emphasis
supplied.)
It is to be noted that in each case cited by appellants the prohibition of the statute was
limited to actions involving a claim or demand against the estate. No cases are cited which
deal with the more comprehensive prohibitions contained in sec. 8966, N.C.L.1929. It is
obvious that by repealing sec. 393 of the practice act the California legislature intended to
remove the ban imposed thereby. Our legislature has not seen fit to repeal the comparable
Nevada statute and like the former California statute it prohibits a party, as to facts occurring
prior to death, from testifying in any case where the adverse party was the representative of
a deceased person' or where, regardless of the nature of the action, the other party to the
transaction is dead.
1. The prohibition against a witness testifying when the other party to the transaction is
dead, is all inclusive. As Judge Farrington said in Bright v. Virginia & Gold Hill Water Co.,
D.C., 254 F. 175, 177:
The Legislature undoubtedly used the term other party to the transaction' advisedly.
party to the transaction' advisedly. If it had intended when the other party to the contract,' or
the other party to the suit' is a deceased person, it certainly would have said so.
It has been held, and properly so, that the test of transactions with deceased within a statute
excluding testimony concerning transactions with deceased, is whether deceased, if living,
could contradict the witness of his own knowledge.
2. The second paragraph of sec. 8966, in prohibiting testimony in an action against the
representative of a deceased person, is equally inclusiveit is not limited to a claim or
demand against the estate.
Forsyth v. Heward, 41 Nev. 305, 170 P. 21, 22, was an action against the administrator of
an estate for the specific performance of two alleged contracts in which decedents had
allegedly promised that they would adopt him (plaintiff) as their own son, and promised and
agreed that on their deaths he would become entitled to and inherit and have all of the
property of which they might be possessed at the time of their deaths. The court there said:
We think the court erred in not sustaining an objection to this testimony, for the reason
that the witness testified squarely to a circumstance growing out of an alleged request of the
deceased parties, who are dead and cannot give testimony concerning the same, or as to that
which it is contended transpired as a consequence thereof.
* * * it was clearly error on the part of the court to permit one of the parties to the alleged
contract to testify to anything which transpired between the parties tending to establish
plaintiff's cause of action, in view of the fact that the other parties were dead.
Torp v. Clemons, 37 Nev. 474, 142 P. 1115, 1118, was an action brought against a
defendant as executor of a decedent's will and legatee thereunder to impress a trust upon
certain assets of the estate. The court said:
In view of the interpretation given to our statute in the several decisions by this court,
the witness Clemons, appellant herein, was properly precluded from testifying as to
matters and things pertaining to any transactions between himself and the deceased,
Overton."
the several decisions by this court, the witness Clemons, appellant herein, was properly
precluded from testifying as to matters and things pertaining to any transactions between
himself and the deceased, Overton.
3. The reason for the rule is well stated in Bright v. Virginia & Gold Hill Water Co., 9
Cir., 270 F. 410, 412, as follows:
The whole object of the Code provision is to place the living and the dead upon terms of
perfect equality, and, the dead not being able to testify, the living shall not.
The case of Burgess v. Helm, 24 Nev. 242, 51 P. 1025, relied upon by appellants, is not in
point. That case involved an oral contract of employment between plaintiff and decedent. In
the action against the administrator of decedent's estate, witnesses who were neither parties to
the contract nor the action were permitted to testify as to the contract. Since appellants are
parties both to the actions and to the alleged contracts, the situation is entirely different.
4. The rulings of the lower court excluding the testimony of appellants as to transactions
between them and decedents were entirely proper.
5. There are numerous assignments of error dealing with the exclusions of testimony of
witnesses who were not parties to the action or to the alleged contracts. Appellants sought to
elicit from these witnesses testimony as to agreements and understandings between appellants
and decedents prior to and contemporaneously with the execution and delivery of the deeds,
releases and contracts referred to above, and at variance with the terms thereof. Such
testimony was objected to upon the ground that it would have been in violation of the parol
evidence rule. Under this rule all prior negotiations and agreements are deemed merged in the
written contract, and parol evidence is not admissible to vary or contradict its terms.
It is well settled, by a long line of decisions of this court, that, when the parties reduce
their contract to writing, all oral negotiations and stipulations are merged therein."
court, that, when the parties reduce their contract to writing, all oral negotiations and
stipulations are merged therein. Gage v. Phillips, 21 Nev. 150, 26 P. 60, 61, 37 Am.St.Rep.
494.
The general rule is that, when parties have committed their agreements to writing, all oral
negotiations and stipulations are embodied in the writing itself. Now, in this case, while it is
contended that the fraud practiced was in obtaining the contract, the real matter relied upon
goes to show an agreement different in terms from that signed by the parties. This is the
veriest sophistry. To sanction this contention would be to permit the solemn written contract
of the parties to be overthrown by showing that the parties agreed orally to something entirely
at variance from the written contract. This cannot be. Nevada Mining & Exploration Co. v.
Rae, 47 Nev. 173, 182, at page 193, 218 P. 89, 223 P. 825, at page 828.
The invoked rule, though by custom called a rule of evidence, is in fact a rule of
substantive law, as has often been explained. * * * When the plaintiff pleads that the writing
(a release) does not express the intentions of the parties to it at the time, he pleads something
which the law will not permit him to prove. Natrona Power Co. v. Clark, 31 Wyo. 284, 225
P. 586, 589.
It would be hard to draw a more complete contract between two people than is contained
in the release. While it does not specify any particular claim or thing released, it uses words
generally used by the members of the bar when it is intended to include every matter of claim
between the parties. We think such a release and agreement not subject to parol evidence.
Donovan v. Hallowell, 140 Wash. 312, 248 P. 412, 413.
6. Appellants discuss at length the question of the admissibility of parol evidence where
fraud is involved. In view of the record before us we do not deem it necessary to consider
under what circumstances fraud will permit a relaxation of the rule since the law is quite well
established that a party relying upon fraud for this purpose must both plead and prove it.
well established that a party relying upon fraud for this purpose must both plead and prove it.
Where fraud or mistake is alleged and proved, it is then proper to admit testimony to
show the real agreement between the parties, but it is not proper, simply on the allegation of
fraud or mistake, and without proof to establish the averment, to permit parties to offer parol
evidence to contradict the writing which purports to contain the contract between them. 32
C.J.S., Evidence, sec. 979, p. 952. See also Feusier v. Sneath, 3 Nev. 120.
If testimony as to parol understandings contrary to a written agreement were admissible to
prove fraud and if the rule does not apply where fraud is proven, quite obviously we would
have no parol evidence rule, for then, in each case evidence as to oral understandings would
be admissible to contradict a written instrument.
7. It is only when independent facts constituting fraud are first proven that parol evidence
is admissible.
Our conception of the rule which permits parol evidence of fraud to establish the
invalidity of the instrument is that it must tend to establish some independent fact or
representation, some fraud in the procurement of the instrument, or some breach of
confidence concerning its use, and not a promise directly at variance with the promise of the
writing. We find apt language in Towner v. Lucas' Ex'r, 54 Va. (13 Grat) 705, 716, in which
to express our conviction: It is reasoning in a circle, to argue that fraud is made out, when it
is shown by oral testimony that the obligee contemporaneously with the execution of a bond
promised not to enforce it. Such a principle would nullify the rule: for conceding that such an
agreement is proved, or any other contradicting the written instrument, the party seeking to
enforce the written agreement according to its terms, would always be guilty of fraud. The
true question is, Was there any such agreement? And this can only be established by
legitimate testimony. For reasons founded in wisdom and to prevent frauds and perjuries,
the rules of the common law exclude such oral testimony of the alleged agreement; and
as it cannot be proved by legal evidence, the agreement itself in legal contemplation
cannot be regarded as existing in fact.
founded in wisdom and to prevent frauds and perjuries, the rules of the common law exclude
such oral testimony of the alleged agreement; and as it cannot be proved by legal evidence,
the agreement itself in legal contemplation cannot be regarded as existing in fact. Neither a
court of law or of equity can act upon the hypothesis of fraud where there is no legal proof of
it.' Bank of America Nat. Trust & Savings Ass'n v. Pendergrass, 4 Cal. 2d 258, 48 P.2d 659,
661.
8. The complaints, after alleging various promises made to plaintiffs by each decedent,
allege (paragraphs XX and XXIII, Robb complaint, and paragraphs IXX and XXII, Tallman
complaint) that the same * * * were, so plaintiff believes, made without any intention of
carrying out said promises. There are no facts alleged upon which this belief is founded and
consequently no proper pleading of fraud.
As a general rule, it is not sufficient to charge a fraud upon information and belief (and
here there is not even an allegation of information' without giving the ground upon which the
belief rests or stating some fact from which the court can infer that the belief is well
founded. Bancroft Code Pleading, vol. 1, page 79. See, also, Dowling v. Spring Valley
Water Co., 174 Cal. 218, 162 P. 894.
9, 10. On this point the proof is as insufficient as the pleading. As stated above, fraud is
not established by showing parol agreements at variance with a written instrument and there
is no inference of a fraudulent intent not to perform from the mere fact that a promise made is
subsequently not performed. 24 Am.Jur. 107; 23 Am.Jur. 888.
The complaints also allege that on or about March 15, 1948, plaintiffs discovered that at
the time Mrs. Cavanagh made the alleged promises * * * she had in her possession and
under her control thousands of dollars, and that it was not at all necessary for her to obtain the
transfer of the interest of plaintiff in said property in order to obtain a loan in order to
purchase the interest of her said niece.
property in order to obtain a loan in order to purchase the interest of her said niece. * * *
It is doubtful if such allegation is a sufficient pleading of fraud, but in view of the evidence
we need not pass upon this question.
11. The lower court found that on March 23, 1935, Mrs. Cavanagh had on deposit in a
bank the sum of $5,793.24 and Mr. Cavanagh the sum of $3,623.71; that at the time of her
death (November 25, 1946) she had on deposit the sum of $4,283.07 and at the time of his
death (October 25, 1947) he owned stocks and bonds of the value of $37,083.71 and cash and
cash items of the value of $19,345.64. It also found that for many years Mr. Cavanagh had
been employed at a small salary and that for some years prior to his death he had been retired
on a pension of approximately $100 per month. There is also evidence in the record that both
Mr. and Mrs. Cavanagh promised appellants that they would take care of them.
This evidence falls far short of proof of fraud.
The fact that Mrs. Cavanagh had a bank balance of $5,793.24 does not mean that this sum
or any portion thereof was not subject to prior commitments or that she was required to use
her own funds to protect the interest of the other five owners of the property.
12. This phase of the matter is a perfect example of the necessity for requiring the
strongest, clearest and most convincing evidence to establish fraud in this class of cases.
There may have been reasons why Mrs. Cavanagh did not feel that she could use her funds to
settle the Bernard action and these may have been known only to herself and her husband. It
would have been extremely difficult for respondent to show what they were more than
thirteen years after the transaction in question, with the lips of both decedents sealed.
Certainly fraud cannot be imputed to her by showing that her husband had funds at the time in
question and at the time of his death.
Since fraud was not established, parol evidence of agreements at variance with the written
instruments, was clearly inadmissible.
While there are certain other assignments of error they are without merit and a discussion
of them would unduly prolong this opinion.
For the reasons given the judgments and orders appealed from are affirmed, with costs.
____________
66 Nev. 261, 261 (1949) Esmeralda Water Co. v. Mackley
ESMERALDA WATER COMPANY, A Corporation, Appellant, v. MARTIN MACKLEY,
CHAS. R. HAMMOCK, Et Al., Respondents.
No. 3569
July, 25, 1949. 208 P.2d 821
1. Mines and Minerals.
Tailings from treatment of ore by custom mill becomes property of the custom mill in absence of
contract or other showing to contrary. St.1877, p. 90; N.C.L.1931-1941 Supp., sec. 9047.07, subds. 11,
12.
2. Mines and Minerals.
Tailings deposited by a milling company from its own and custom ores upon open and unappropriated
public domain and there impounded in a tailings pond by a dam or retaining wall remained property of
mill, in absence of evidence of an abandonment, as against a subsequent placer locator of ground
including the tailings pond. N.C.L.1929, sec. 9026; N.C.L. 1931-1941 Supp., sec. 9047.07, subds. 11,
12; St.1877, p. 90.
3. Quieting Title.
Plaintiff's possession of tailings deposited by milling company, from its own and custom ores, upon
open and unappropriated public domain and there impounded in a tailings pond by dam or retaining wall
under color of title for some 20 years, unless abandoned, afforded plaintiff sufficient warrant to maintain
action to establish its title to the tailings as against a subsequent placer locator of ground, including the
tailings pond, even if there was a break in plaintiff's chain of title from milling company. N.C.L.1929,
sec. 9026; N.C.L.1931-1941 Supp., sec. 9047.07, subds. 11, 12; St.1877, p. 90.
Appeal from Fifth Judicial District Court, Mineral County; Taylor H. Wines, Presiding
Judge.
Action by Esmeralda Water Company against Martin Mackley and others involving
question of ownership of tailings. From adverse judgment, the plaintiff appeals. Judgment
affirmed in part and in part reversed, and cause remanded with instructions.
Cooke & Cooke and Oliver C. Custer, all of Reno, for Appellant.
Carville & Carville, of Reno, for Respondents.
OPINION
This appeal presents for our chief consideration the question of the ownership of tailings
deposited by a mining and milling company, from its own and custom ores, or from custom
ores alone, upon open and unappropriated public domain and there impounded in a tailings
pond by a dam or retaining wall, as against a subsequent placer locator of ground including
the tailings pond. Lest this seem over simple in view of the well-recognized rule sustaining
the title to and possession of such tailings (unless abandoned) as against a subsequent
location, we must add that the trial court limited this protection to the operator of the mill,
Who also supplied the ore from the mine owned by him, in the absence of allegation and
proof of a custom in the district that title to the tailings should vest in the mill. The trial
court's application of this limitation resulted in a judgment for the subsequent locators, the
defendants below, which we are called upon to review. Other questions of importance are
presented, but they are all incidental to such main question.
Appellant Esmeralda Water Company filed its complaint in the court below, alleging that
about 1870 its predecessors in interest engaged in the mining and extraction of ores from
certain lode mining claims owned and possessed by them, and milled and reduced the
same in a quartz reduction mill owned by them situate adjacent to its mining claims; that
the tailings from said operations, at the price and under conditions then existing, were
not of sufficient value to warrant further treatment, but to keep and conserve them for
future treatment under more favorable conditions the tailings were deposited upon open
and unoccupied mineral land of the United States in a tailings pond in Columbus mining
district in what was then Esmeralda county; that its predecessors built a stone wall or
embankment around the same and that at the close of its mining and milling operations
the pond contained about 7,000 tons of said tailings; that the plaintiff and its
predecessors had thereafter maintained continuous peaceful possession of the tailings
pond, repairing the stone wall from time to time to keep the tailings from being washed
down the canyon and lost, and that for many years prior to 1947 plaintiff and its
predecessors continually kept a watchman on the mine, mill and tailings premises to
guard and conserve the same, and paid all taxes levied and assessed thereon; that about
1929 plaintiff acquired title and ownership of the said tailings and of the Dorris and Lake
placer claims located by its predecessors in 1S96, which placer claims embraced the
tailings pond; that the land is valuable only for the tailings, alleged to be of a gross value
of about $15 a ton and of a net value of from $2.50 to $3; that on January 23, 1947 the
defendants wrongfully entered upon the tailings reservoir, locating certain placer claims
named the Victory and the Victory Fraction over the same for the sole purpose of
appropriating the tailings, and removed and marketed about 1,000 tons and threatened to
remove the remainder.
extraction of ores from certain lode mining claims owned and possessed by them, and milled
and reduced the same in a quartz reduction mill owned by them situate adjacent to its mining
claims; that the tailings from said operations, at the price and under conditions then existing,
were not of sufficient value to warrant further treatment, but to keep and conserve them for
future treatment under more favorable conditions the tailings were deposited upon open and
unoccupied mineral land of the United States in a tailings pond in Columbus mining district
in what was then Esmeralda county; that its predecessors built a stone wall or embankment
around the same and that at the close of its mining and milling operations the pond contained
about 7,000 tons of said tailings; that the plaintiff and its predecessors had thereafter
maintained continuous peaceful possession of the tailings pond, repairing the stone wall from
time to time to keep the tailings from being washed down the canyon and lost, and that for
many years prior to 1947 plaintiff and its predecessors continually kept a watchman on the
mine, mill and tailings premises to guard and conserve the same, and paid all taxes levied and
assessed thereon; that about 1929 plaintiff acquired title and ownership of the said tailings
and of the Dorris and Lake placer claims located by its predecessors in 1896, which placer
claims embraced the tailings pond; that the land is valuable only for the tailings, alleged to be
of a gross value of about $15 a ton and of a net value of from $2.50 to $3; that on January 23,
1947 the defendants wrongfully entered upon the tailings reservoir, locating certain placer
claims named the Victory and the Victory Fraction over the same for the sole purpose of
appropriating the tailings, and removed and marketed about 1,000 tons and threatened to
remove the remainder. Plaintiff prayed for an injunction and that its title be quieted to the
tailings and reservoir premises, for the value of the tailings removed and for costs and further
relief.
The defendants answered and denied the material allegations of the complaint and alleged
that if plaintiff had any title to the ground it had forfeited the same for failure to perform
assessment work or to file notice of its desire to hold its claims under the acts of congress
relieving the owner from such assessment work. Defendants then alleged their location of the
ground as the Victory and Victory Fraction placers, and prayed that plaintiff take nothing, that
the temporary restraining order theretofore issued be set aside, and for costs and further relief.
Plaintiff replied and denied the forfeiture, denied the relocations asserted by defendants,
and as new matter alleged that for a period of seventy-five years prior to 1946 the custom
existed with ore reduction mills, operating in the State of Nevada and more particularly in
what is now Mineral county, and including the adjoining round-about area, of the custom mill
crushing or otherwise reducing ores delivered to it by divers persons, deducting its charges,
and the tailings and slimes being carried out by the custom mill operator, and the ownership
thereof vested in such custom mill operator; and that the title to the tailings became vested in
plaintiff's predecessors and later in plaintiff. The trial court sustained a demurrer to such new
matter saying: The two basic facts which must appear in such a pleading are the existence of
a custom and the facts which would entitle the pleader to claim under such a custom so as to
vest in that person certain property or other rights. These, I think, have not been alleged and I
hold, therefore, that the reply is not good as against the demurrer filed by the defendants.
The learned trial judge further explained that the reply received no aid from the complaint
because the theory of the complaint was that plaintiff's predecessors treated in the mill the
ores produced from their own mines, resulting in the tailings in question, while the reply was
concerned with the idea of ores being delivered to plaintiff's predecessor in interest as a
custom mill.
Appellant claims that the record is devoid of any testimony to the effect that the tailings
resulted from any ores mined by third persons and reduced by the mill as custom ores.
Respondents, on the other hand, claim that advertisements in local papers published at the
time and admitted in evidence in the case show clearly that the mill owner at the time was
operating a custom mill and advertising for ores to be treated. The sustaining of the demurrer
to the reply is one of the errors assigned by the appellant.
Respondents insist that the tailings lost their character of personalty and become part of
the real estate occupied by the tailings pond; that the public domain upon which the tailings
pond was situate was subject to placer location after appellant had forfeited the ground by
failing to perform its assessment work or to file notices of desire to hold; that the relocations
of the defendants were lawfully made and entitled them to the tailings, as well as the ground
embraced within the exterior boundaries of their relocations; that in any event plaintiff had
failed to prove that the tailings were deposited as a result of the treatment of ores mined and
owned by plaintiff's predecessors; that such tailings were the property of the original person
who mined the ore; that they were milled by plaintiff's predecessors (although the
deraignment of title to plaintiff is denied) as custom ores; that in the absence of proper
pleading and proof of a custom that title to tailings from custom ores vested in the mill, such
title remained in the original mine owners.
The trial court found (1) the plaintiff's corporate status since 1929; (2) that commencing
about 1870 sundry persons were engaged in mining in the district; that a custom milling
process was located upon the above-described premises, and custom ores from several mining
properties were milled in said custom mill and the tailings therefrom were by the mine
operators permitted to flow from said mill into a gulch which is situated on the north side of
the mining camp known as Candelaria in said Columbus Mining District, and which gulch is
embraced within the above-described legal subdivisions; that in said gulch at a point
some 1,500 to 1,000 feet below said milling operations above referred to, there was
constructed a rock wall of some S or 10 feet in depth at the deepest point which followed
the contour of the ground across said gulch; that this rock wall was constructed some
time prior to the year 1S96, apparently for the purpose of retaining the tailings from said
mill.
Candelaria in said Columbus Mining District, and which gulch is embraced within the
above-described legal subdivisions; that in said gulch at a point some 1,500 to 1,000 feet
below said milling operations above referred to, there was constructed a rock wall of some 8
or 10 feet in depth at the deepest point which followed the contour of the ground across said
gulch; that this rock wall was constructed some time prior to the year 1896, apparently for the
purpose of retaining the tailings from said mill. Evidence does not disclose by whom said
rock wall was constructed. Overflow and driftings from said tailings, due to wind and storm,
was checked by a smaller rock wall from 70 to 100 feet below the main rock wall, which also
followed the contour of said land at this last mentioned point; that said lower rock wall had
been constructed some time prior to the year 1896.
That during the years between 1870 and the early years of 1880 the town of Candelaria
came into existence and was occupied in connection with an active mining camp which
embraced several large and a few small mining operations in this area. A spur railroad line
extended from the nearest main line railroad into Candelaria which spur railroad had a
schedule of regular runs; that a water line extended for a distance of some 27 miles, heading
in the White Mountains area and furnished water for the mining and milling operations in
said Candelaria mining district, as well as for the town of Candelaria; that by the year 1900,
and not later than the year 1903, the said mining camp had become inactive; that at this time
the mill was not operating, nor was there any evidence that the mines were operating in said
mining camp, and the mining camp to a great extent had been closed down.
(3) That J. A. Corkill located the Dorris placer, and Fred Corkill located the Lake placer in
1896 and that no connection was shown to exist between any of the producers of said
tailings and the above named locators (by producers of said tailings the court was referring
to the miners and not to the mill); that proofs of labor were filed on the Dorris and Lake
placers each year from 1901 to 190S "by various claimants of said mining claims; that for
1910 proof of labor was filed by Esmeralda Water and Milling Company, which same
company filed a notice of desire to hold the same in 1917; that one Jarmouth filed such
notice in 191S for the Candelaria Mines Company; that from 1922 to 1926, inclusive,
similar proofs were filed on behalf of Esmeralda Water and Milling Company and the
Candelaria Mines Co.;
were filed on the Dorris and Lake placers each year from 1901 to 1908 by various claimants
of said mining claims; that for 1910 proof of labor was filed by Esmeralda Water and Milling
Company, which same company filed a notice of desire to hold the same in 1917; that one
Jarmouth filed such notice in 1918 for the Candelaria Mines Company; that from 1922 to
1926, inclusive, similar proofs were filed on behalf of Esmeralda Water and Milling
Company and the Candelaria Mines Co.; (4) that the Corkills in 1899 conveyed the Lake and
Dorris to one Sutherland, who in 1900 conveyed to one Bonbright, who in 1907 conveyed to
Esmeralda Water and Milling Company, which company, through its trustees in 1929,
conveyed to plaintiff; that no assessment work was performed or proofs of labor or notices of
intention to hold filed after 1926, by reason whereof they became subject to relocation; (5)
that Mackley and Hammock validly relocated the ground in 1946 and 1947 as the Victory and
Victory Fraction placers; (6) that the plaintiff had forfeited its rights to the Dorris and Lake
long prior to the time that the Victory and Victory Fraction were located, and that the latter
relocations were and are valid and subsisting relocations of portions of the Dorris and Lake
placer mining claims forfeited by the plaintiff herein; (7) that plaintiff failed to substantiate
by proof the allegations of its complaint and defendants have shown by proof the relocation
of valid and subsisting mining claims known as the Victory Placer Mining Claim and the
Victory Fraction Placer Mining Claim.
Appellant insists that the evidence is insufficient to show a forfeiture. We feel it
unnecessary to review the testimony on this point. It is quite lengthy and contains many
controverted facts. There was, however, ample testimony to justify the court's conclusion that
the land upon which the tailings pond was situate had become forfeited by appellant, was
subject to re-entry and was properly relocated by defendants.
It will be noted from the findings quoted above that this is the only issue upon which the
court made findings, except for the single finding that plaintiff had failed to prove the
allegations of its complaint.
this is the only issue upon which the court made findings, except for the single finding that
plaintiff had failed to prove the allegations of its complaint. Such blanket finding is of little
assistance.
As hereinafter indicated plaintiff undoubtedly stated a cause of action for the recovery of
the tailings irrespective of the ownership of the ground.
1

The only conclusion of law drawn by the court from the foregoing findings was that the
defendants must prevail in this action, and it is ordered that the plaintiff take nothing by
reason of its claim. The court made no findings on the question of the ownership of the
tailings, or whether the title thereto, if vested in plaintiff and its predecessors, had been
retained, disposed of or abandoned. It did not find that there had been any abandonment, nor
did it conclude that there had been an abandonment. In ruling on objections to the proposed
findings, it struck out the statement that the tailings had been abandoned. The reasons for this
appear in the twenty-page Decision on the Merits filed by the learned district judge. After
recognizing the rule of Ritter v. Lynch, C.C., 123 F. 930, and Goldfield Consolidated Milling
& Transportation Co. v. Old Sandstorm Annex Gold Mining Co., 38 Nev. 426, 150 P. 313,
that title to tailings is not lost by their deposit upon open and unoccupied public domain if the
owner manifests an intention to retain title and control of the tailings, the learned district
judge restricts this principle to a case in which a miner extracts ores from his own mines and
treats such ores in his own mill, and holds that the proper application of the principle of such
ownership of tailings requires a showing in this instance at least, of production of the
tailings from the operation of the mill owned by the mine owner, who also supplied the ore
from the mine owned by him."
____________________

1
9026, N.C.L. An action may be brought by on or more persons against other person or persons for the
purpose of determining an adverse claim which the latter makes against the former, for money or property, upon
an alleged obligation or liability of any nature or kind, or upon any claim for an accounting, or for any other
legal equitable relief.
mill owned by the mine owner, who also supplied the ore from the mine owned by him.
After finding that there was no proof of custom in the district which would make the mill the
owner of the tailings, the learned district judge repeated: The plaintiff must in some manner
connect itself with the producer of these tailings in order to succeed on the theory that these
tailings are personal property which has not been abandoned.
2
As we have seen, the court
did not pass on any issue of abandonment. Respondents likewise insist that, The question of
abandonment does not enter into this case. This is later emphatically repeated, and it is again
stated by respondents: The lower court eliminated the theory of abandonment on the
evidence taken as a whole and rendered its decision upon the theory of forfeiture for failure to
protect the Dorris and Lake claims through proper assessment work. We agree that this is a
proper analysis of the lower court's theory in its written opinion, its findings, its conclusion,
its judgment, and its order denying the motion for a new trial. With this theory, however, we
are unable to agree.
3

In Ritter v. Lynch, C.C., 123 F. 930, 932, plaintiff laid claim to certain tailings on the basis
of his location of the land on which the tailings had been impounded.
____________________

2
The learned district judge further stated: For a case on this point see Stanley v. Sierra Nevada Silver
Mining Company, [C.C.], 118 F. 931. The reference is apparently in error. That action was one for the
conversion of a deposit of tailings of the value of $5,000, and the opinion referred to held the complaint good as
against a demurrer which attacked the sufficiency of the allegation of ownership of the tailings. Judge Hawley,
citing a number of cases, held that the allegation that plaintiff was lawfully possessed of the property was
sufficient. Citing Rogers v. Cooney, 7 Nev. 213, as a similar case, the federal court quoted the holding of this
court that it was only necessary for the plaintiff to prove a rightful possession in himself. It is not incumbent on
him to establish any title beyond that. The authority is not even remotely in point on the proposition of law
stated, and it is the only authority cited in support of such point.

3
Respondents say further: Abandonment plays no part in this case except insofar as the action of the miners
who delivered the ore to the mill did not claim the tailings therefrom after they were discharged through the
mill.
the land on which the tailings had been impounded. The defendants claimed that the tailings
were their personal property at the time of plaintiff's attempted location. Judge Hawley said:
Did the defendants, or those under whom they claim, prior to and at the time of the location
of the ground by plaintiff as a placer mining claim, have any valid right of ownership and
possession, or right of possession, to the tailings situate on the land in controversy, and, if
they acquired any such right, has it been maintained, and was it valid at the time the plaintiff
attempted to acquire the title to the ground, and at the time he was ousted therefrom? The
defendants were not seised in fee of the title to the land. Their ownership and right to the
tailings and possession of the land covered by the reservoir in which the tailings were
impounded is not necessarily dependent upon their having the legal title to the land. It rests
upon other grounds. It appears from the testimony on behalf of defendants that Michael
Lynch, prior to 1868, obtained the title to about six acres of land known as the Hoosier State
Millsite,' situate above the land in controversy in this action; that he was the owner of a mill
upon said land, and operated the same for the crushing and reduction of ore from the
Comstock lode; that in the natural working of said mill the tailings therefrom, unless
restrained, would run down the canyon, and become lost to the owner thereof; that, in order to
impound the same, he constructed a reservoir or bulkhead, situate in the canyon or ravine a
short distance below the mill on the ground in controversy, of such size and dimensions and
in such manner as to confine the tailings conducted by him from said mill, and enable him to
keep and preserve the same from waste or destruction until such time as they could profitably
be worked or sold. The reservoir was principally built of the tailings, banking them up in a
wet state at the lower end so as to become solid enough to keep the tailings running down the
ravine in the reservoir. This reservoir was built upon vacant, unoccupied public land of the
United States.
The learned district judge for the District of Nevada then quoted with approval Jones v.
Jackson, 9 Cal. 237, to the effect that when a place of deposit for tailings is necessary for the
fair working of a mine, there can be no doubt of the miner's right to appropriate such ground
as may be reasonably necessary for this purpose, provided he does not interfere with
pre-existing rights. It is true that in Jones v. Jackson reference is made to the deposit of the
tailings by the miner, but the Ritter case is patently not so restricted, as it is stated definitely
that the Lynch mill was operated for the crushing and reduction of ore from the Comstock
lode. If there is any indication in the case one way or the other, it is that the ores of various
mines on the Comstock lode were treated in the Lynch mill. It is interesting to note that in the
Ritter case, as in the present case, two distinct issues were raised, one growing out of the
possessory right to the ground, the other growing out of the ownership of the tailings. In the
Ritter case, however, the court (inversing the order of the instant operation) disposed of the
issue of the possessory right to the ground and decided the case upon the issue of the
ownership of the tailings, holding that such ownership persisted unless there had been an
abandonment. The court then reviews the factual situation at length, which is astonishingly
similar to the state of facts in the present casethe deposit of the tailings on public domain;
the construction of a bulkhead; the solidifying of the tailings, which maintained them fairly
intact even without the bulkhead; the employment of an agent to look after the property
including the ground in controversy; the testimony of the agent as to activities to prevent
the tailings from being washed away; the doing of some work on the reservoir; the granting of
permission to other parties to sample the tailings with a view to lease or purchase; the
occurrence of a high freshet which washed away a portion of the tailings; the location of the
tailings pond below the mill site, etc. There was a total absence of any reference to a custom
as to the ownership of the tailings.
ownership of the tailings. The placer location over the tailings pond was ostensibly to obtain
the tailings, although, the ground itself may have been otherwise somewhat mineralized. The
court then devotes itself to the question of abandonment and, in holding there was no
abandonment, says: Abandonment is a question of intent, to be determined by the special
facts in any given case. In order to constitute abandonment of the right of possession which
the defendants had acquired, there would have to be shown a clear and unequivocal act or
acts of the parties, showing a determination on their part to surrender their right to the
property. There must be the concurrence of the intention to abandon and the actual
relinquishment of the property, and of their right, dominion, and control over it. The record
clearly showsindependent of the testimony of Mrs. Lynch that she had never in any
manner, shape, or form intended to abandon or release her claim to the tailingsthat the
property was never abandoned by the defendants. The facts disclosed by the record are, in my
opinion, sufficient to show that the defendants have preserved their ownership of the tailings
and possession of the land upon which they were impounded, and that plaintiff did not, by his
acts, acquire any right or title thereto as against the defendants.
In Goldfield Consolidated Milling & Transportation Co. v. Old Sandstorm Annex Gold
Mining Co., 38 Nev. 426, 150 P. 313, 315, we are left with no uncertainty as to the fact that
the tailings resulted from ores milled by a custom mill. Said this court, through Coleman, J.:
The respondent alleges in its complaint that it is organized for the purpose of milling, and
reducing by other methods, gold, silver and other ores, and that it now is, and for a long time
past has been, engaged in the carrying on of the said business of milling and reducing ores;
* * * that in the operation of the said mill there are discharged therefrom large quantities of
pulverized rock and earth, commonly known as tailings,' * * *
valuable and are being conserved by respondent for re-treatment. The tailings were
deposited within retaining dams on the respondent's own property, but had overflowed the
same and respondent sought to condemn a portion of appellant's property for the storage of
tailings. Among other defenses, the appellant alleged that respondent had abandoned the
tailings and that the same had become the property of appellant. This court said: * * * the
lower court found it necessary to determine also the question of the ownership of the tailings
deposited thereon. It appears from the evidence that respondent, after treating the ores which
it had purchased, deposited the tailings upon a portion of its own land which lies in a gulch,
through which water flows at times in great volume and with great force. It also appears from
the evidence that it was necessary for respondent to keep a man employed at all times to dam
up the tailings so that they would not wash away and be lost, and as a consequence of this
damming process the tailings eventually were forced upon the land of appellants. It also
appears that these tailings are valuable and can be re-treated profitably. Respondent seeks to
re-treat these tailings, and to do so finds it necessary to erect a tram to convey them to its mill.
Appellants claim that they are now the owners of the tailings. Having purchased the ores
from which the tailings came, respondent was the owner of them at the time they were
deposited upon the lands of appellants. (Italics supplied.)
The court then quotes at some length from Mallett v. Uncle Sam Gold & Silver Min. Co.,
1 Nev. 188, 90 Am. Dec. 484, to show that there has been no abandonmentthe intention is
the first and paramount object of inquiry; for there can be no strict abandonment of property
without the intention to do so. See cases therein cited, including Ritter v. Lynch, supra.
Deciding then that the lower court had properly held that there was no abandonment,4 the
court in introducing its discussion of the question of the right to condemn the land in
question, says: "Being, then, the owner of the tailings, * * *."
there was no abandonment,
4
the court in introducing its discussion of the question of the
right to condemn the land in question, says: Being, then, the owner of the tailings, * * *.
There was no proof of custom as to ownership of the tailings. They were the property of the
custom mill, although they were the direct result of the treatment of ores supplied to the mill
by the mine operators. The milling company was apparently not even authorized by its charter
to engage in mining. See, also, Rhodes Min. Co. v. Belleville Placer Min. Co., 32 Nev. 230,
106 P. 561, 118 P. 813, in which, as in the present case, conflicting claims were asserted to
certain tailings, and the titles asserted grew both out of ownership or possessory right to the
land and out of ownership of the tailings as personal property. Ritter v. Lynch is there
characterized by this court as upholding the title to tailings in the owner, who had retained
them in a reservoir against the locator of the placer claim. The owner, as we have seen, was
the owner of the mill.
In Guild Gold Min. Co. v. Mason, 115 Cal. 95, 46 P. 901, the plaintiff mine owner sued
the chlorination works on an alleged contract to reduce plaintiff's ore for $17 a ton and to
return to plaintiff at least 90 percent. Plaintiff maintained that less than 90 percent was
recovered and estimated that there was still $350 in the tailings. After holding that the
plaintiff could possibly recover if a large amount had been lost in the tailings by reason of
fraud, lack of skill, carelessness or neglect (which was not pleaded by the plaintiff) the court
said: Nor is there any allegation or evidence of any custom or agreement that the tailings
should belong to or be delivered to the plaintiff."
____________________

4
In holding that the district court properly found that there was no abandonment this court said: It conserved
the tailings by having a man on hand to keep a dam built up so as to prevent their being washed away, which it is
not likely it would have done had it intended abandoning them. The testimony was to the effect that respondent
did not intend to abandon the tailings. The testimony against the theory of abandonment is stronger in the
instant case than in the Goldfield Consolidated case. In re Waters of Manse Spring, 60 Nev. 280, 108 P.2d 311.
that the tailings should belong to or be delivered to the plaintiff. The intimation to the
contrary would seem to be clear, namely, that without such allegation or evidence the tailings
would be the property of the reduction plant. In O'Keiffe v. Cunningham, 9 Cal. 589, it was
recognized that open ground used as a place of deposit for tailings by another was subject to
location, but that such subsequent location would be subject to the prior right of deposit.
In 1939 most of the important questions raised in the present appeal and discussed in the
foregoing authorities were brought before the supreme court of Montana in Conway v.
Fabian, 108 Mont. 287, 89 P.2d 1022, 1024. Conway and another sued Fabian and others to
try title to mill tailings deposited on placer mining ground claimed by defendants, recover
damages for entry on, removal of, and waste of, such tailings, and enjoin trespasses on
plaintiff's property by defendants, who filed a cross-complaint to quiet title to placer mining
claims on which the tailings were situated. It will be noted that in general this was the issue
presented by the plaintiff's complaint here. Conway and his predecessors were the owners
both of the mining properties and of the mill that concentrated the ores, for which reason
respondents insist that the case is not in point. It is, however, not so lightly disposed of. As in
the present case, the tailings contained mineral values, which fact was known to the owners,
but the metallurgical processes and primitive milling machinery of the time (1881 to 1898)
did not permit recovery of such values, and the tailings were impounded for possible future
working, bulkheads being constructed and maintained for the purpose. The trial court found
that since the depositing and impounding of the tailings, plaintiffs and their predecessors had
been in actual open, continuous and exclusive possession, and that they had not at any time
abandoned the same. As in the present case, some had been washed away by rain and storm
but were otherwise intact. The claim of the defendants to the tailings was predicated upon
their location of certain placer claims embracing the tailings dump.
defendants to the tailings was predicated upon their location of certain placer claims
embracing the tailings dump. These placers had been regularly located and the annual
representation work kept up. The supreme court of Montana approved the finding of the trial
court that, although the placers of the defendants were their property, the defendants were
nonetheless not the owners nor in possession of the tailings * * * impounded on the claims *
* *, the plaintiffs and their predecessors in interest having retained possession and ownership
thereof at all times as personal property. Recognizing the fact that some of the tailings, not
included in the tailings pond proper, had spread over the ground or had become imbedded in
the soil, such part of the tailings was held to have become a part of the real estate included
within the defendants' placer claims, citing Rogers v. Cooney, 7 Nev. 213. The Montana court
stated: The most important question in this suit is undoubtedly the property classification to
be given to the tailings * * *, and holds definitely that tailings placed on the ground from
milling operations by their owner prior to a placer location and which have not been
abandoned are not within the rule or principle of Rogers v. Cooney; but that the owner of a
subsequent location takes subject to the right of this prior deposit. Throughout the opinion it
is emphasized that the ownership or right of possession of the tailings maintains unless
abandoned. The building of the barriers, the subsequent repair thereof, the exhibiting of the
dump to prospective purchasers or lessees, the taking of samples, are all cited as evidence that
the dump was personal property and that it had not been abandoned. The Montana court cites
as authority O'Keiffe v. Cunningham, 9 Cal. 589; Jones v. Jackson, 9 Cal. 237; Ritter v.
Lynch, C.C., 123 F. 930; and Goldfield Consolidated Milling & Transportation Co. v. Old
Sandstorm Gold Mining Co., 38 Nev. 426, 150 P. 313, all of which we have discussed, supra.
1. If Ritter v. Lynch and Goldfield Consolidated Milling & Transp. Co. v. Old Sandstorm
Gold Mining Co. are not enough to establish the conclusion that in this state at least the
tailings from the treatment of ore become the property of the custom mill (in the absence of
contract or other showing to the contrary), other things strengthen this conclusion. The
construction and maintenance of the impounding dam, negotiations for sale or lease, the
sampling and other acts appearing in the record, some of which are referred to herein, all
were, as we have indicated, sufficient to show possession in appellant. They undoubtedly
show the exercising of acts of ownership. Such possession and acts of ownership are by our
statute presumptive evidence of title. Among the disputable presumptions provided by our
statute are: That things which a person possesses are owned by him; that a person is the
owner of property from exercising acts of ownership over it, or from common reputation of
his ownership. Stats. of Nevada 1931, p. 61, sec. 558g, subds. 11 and 12, N.C.L.1931-1941
Supp., sec. 9047.07, subds. 11, 12. In effect since its enactment in 1877 has been the
following provision in this state:
Preferred Lien on Ore.
Sec. 1. Where ore is delivered to a custom mill or reduction works, and either sold to said
mill or reduction works, or worked at a percentage, the party or parties so furnishing ore to
mill or reduction works shall have a preferred lien upon the bullion product and upon the ore
not reduced, as against attachment and other creditors. Stats.1877, p. 90.
The preservation of such a lien in the miner furnishing the ore to the mill is inconsistent
with any theory other than that the title passes to the mill. If still further evidence is needed on
this point, it is supplied by the record itself.
The learned district judge's written opinion referred to the ownership of the water as well
as the ownership of the mill by Candelaria Water Works & Milling Company, Ltd., which in
1SS6 and in 1S91 advertised in local papers, seeking business in the reduction of ores.
of the mill by Candelaria Water Works & Milling Company, Ltd., which in 1886 and in 1891
advertised in local papers, seeking business in the reduction of ores. There were introduced in
evidence contracts entered into in those years by such Candelaria Company with the
Georgene Mining Company of New York and with the Holmes Mining Company of San
Francisco.
5
In these contracts we find that the mining companies agreed to deliver at the
mill daily certain specified tonnages of ore; that none of their ore would be sold or disposed
of to any other person. The mill agreed to reduce the ore on a sliding scale of charges
depending upon the assay value of the ore. The mining companies agreed that none of the ore
should be reduced or otherwise treated elsewhere. The agreement provided for arbitration
on any question or difference as to the construction or meaning of any terms of the
agreements or the rights, duties or liabilities of the parties thereunder. The apparent
interchangeable use of words in these contracts whereunder the miners delivered their ore
to the mill and agreed that no ores should be sold or disposed of to any other person and
should not be reduced or otherwise treated elsewhere, with no reservation of any interest in
the tailings, with no claim ever made by these or any other mining companies to any part of
the tailings, with no application for arbitration of any claim to ownership of any part of the
tailings, with the long lapse of time without any such claim, with the impounding and
continuous possession of the tailings by the mill, the ownership of such tailings by the mill
would seem well and substantially indicated. This is strengthened by the advertisements
themselves published in 1886 and 1891, introduced by the defendants, entitled "Custom
Ores" and advertising that the mill would "pay for silver ores" under a specified sliding
scale and that the silver would be "settled for" at New York quotations.
____________________

5
The Georgene and Holmes properties were later operated under the management of Argenta Mining Co., or
combined to own the Argenta. From prior to 1922 to 1946, a watchman and caretaker looked after these
properties as well as the waterworks, tailings pond, etc., of Esmeralda Water and Milling Co., and later,
Esmeralda Water Co.
Custom Ores and advertising that the mill would pay for silver ores under a specified
sliding scale and that the silver would be settled for at New York quotations. Further the
defendants themselves also introduced their report of net proceeds of mines under which
they were required to pay taxes on the proceeds of the tailings they had shipped. This report,
submitted on a printed form supplied by the Nevada Tax Commission showed, among other
things, that the tailings were sold to the American Smelting & Refining Company. This
recalls, to all who have had occasion to look, pictures of the vast slag and tailings dumps,
embracing hundreds of thousands of tons, resulting from the treatment by the large smelting
and refining companies of ores from mines scattered throughout the west.
This apparently universal custom, considered in connection with the physical and realistic
aspect of transactions between the miner and the mill, may account for the total lack of any
adjudicated cases dealing with the ownership of tailings in any controversy that raised the
question as to whether the producer or the mill owned the tailings. In all cases, as in the
present case, the tailings resulting from the reduction by the custom mill of the ores of the
various producers are hopelessly confused. Segregation of the tailings for return to the
various producers would be virtually impossible. Instead of a sale to the mill, each transaction
would involve a most complicated bailment. The confusion and commingling of the tailings
would be both in lateral layers or strata and also in distribution over the area of the tailings
pond. Nor would the statement of one of defendants' witnesses that different colors of the
tailings indicated the reduction of ores from different mines be of much assistance in
segregating portions of the intermingled mass.
As a matter of fact during the period from 1940 to 1942 plaintiff leased the tailings pond
to people who were interested in extracting only the quicksilver. This quicksilver was not the
product of any ores supplied to the mill for treatment, was apparently not mined at all in
the district, but was purchased, furnished and used by the mill itself in the process of
recovering values from the ores that it treated.
quicksilver was not the product of any ores supplied to the mill for treatment, was apparently
not mined at all in the district, but was purchased, furnished and used by the mill itself in the
process of recovering values from the ores that it treated.
2. Respondents contend, and it was apparently the holding of the trial court, that because
the Corkill locations of the Dorris and Lake placers were not contested and the Corkills and
their successors in interest (eventually the plaintiff herein) filed proofs of labor thereon for
many years, this is in some way a recognition by plaintiff and its predecessors that the
tailings, embraced within the exterior boundaries of these two placers, were part of the realty
and belonged to the owner of the placer location. This is not necessarily so. The Corkills did
not attempt, so far as anything in the record shows, to remove any of the tailings. The owner
of the tailings could well have been justified in concluding that these placer locations were
made subject to its rights to remove its tailings. Conway v. Fabian, 108 Mont. 287, 89 P.2d
1022; O'Keiffe v. Cunningham, 9 Cal. 589. The mill company might, as suggested by Judge
Hawley in Ritter v. Lynch, C.C., 123 F. 930, have desired to pursue the safer course in
actually acquiring the possessory right to the placers and for such reason have purchased or
otherwise acquired the Corkill locations.
6

It is important to note the following paragraph of the learned district judge's opinion
{Italics supplied): "In connection with this mill and its operation it should be noted that
as originally there was in Candelaria no reliable or sufficient source of water, it was
necessary in order to provide water for the operation of the mill and for the camp to bring
water some 27 miles by means of a pipe-line from the White Mountains where certain
water rights had been acquired previously.
____________________

6
The Corkills' possessory rights growing out of their location of the Dorris and Lake claims in 1896 lasted
only till they conveyed to Sutherland in 1899, who, the following year, conveyed to Bonbright. (Sutherland was
the treasurer and general manager of Georgene Mining Company, all of whose ores were processed at the mill
under the contract of 1886, and was president of the Holmes Mining Company, all of whose ores were processed
through the mill under the contract of 1891. The mill on those dates operated as the Candelaria Water Works
and Milling Company, Ltd., whose registered office was at Drapers Garden, Throgmorton Street, London.)
Although the Georgene Mining Company, the Holmes Mining Company and the Candelaria Water Works and
Milling Company, Ltd., were separate corporations, their stock was owned by the same people. Though
Bonbright and Company (a partnership, comprising
learned district judge's opinion (Italics supplied): In connection with this mill and its
operation it should be noted that as originally there was in Candelaria no reliable or sufficient
source of water, it was necessary in order to provide water for the operation of the mill and
for the camp to bring water some 27 miles by means of a pipe-line from the White Mountains
where certain water rights had been acquired previously. The testimony and other proof
indicate that the title to the water works which as above stated included a pipe-line, a
reservoir, and water rights, was in the operators of the mill.
____________________
some ten partners, residing respectively, in London, New York, and Colorado) did not quitclaim to Esmeralda
Water and Milling Company till 1907, proofs of labor were filed every year from 1901 to 1910, and later. In
1902 one A. G. Draper, when filing proof of labor for the Lake and Dorris, did so as agent of the Calendaria
Water Works and Milling Company, Ltd., whose ownership of the mill, as we have seen, long antedated any title
attaching by reason of the acquisition of the Corkill locations. Again in 1903, in filing proof on the Lake claim,
he did so as agent for the same Calendaria Water Works and Milling Company. F. G. Grube, in filing proof of
assessment work for 1904, likewise did so as agent for the same company. For the assessment work for 1905
Grube acted as the agent for both the Calendaria Water Works and Milling Company and Bonbright and Co.,
and the same the following year. His proof in December 1907 for the work that year was as agent only for
Bonbright and Co., but his proof in 1908 was as agent for Esmeralda Water and Milling Co., likewise repeated
in January 1910 for the assessment work of 1909. During the 1920's, proofs seem to have been filed
indiscriminately for Esmeralda Water and Milling Company and for Candelaria Mines Company. In 1912, when
about 2,000 tons of ore were run through the mill in a six months' period, the tailings from which were
discharged into the same tailings pond, Grube was in charge as general manager of the Argenta Mining
Company and the Esmeralda Water Company. In this capacity he actually lived in Calendaria from 1903 to
1922, and made monthly trips from his new residence in California to Calendaria from 1923 to 1942. The two
corporations were under one management, and the mill and tailings pond of Esmeralda Water and Milling
Company was the same that had been operated before his time by the old Calendaria Mining Company. We see
in the derivation of plaintiff's title from the Corkill placer locations nothing inconsistent with the claim to, and
possession of, the water works, water rights and tailings pond (which covered a period prior to and at the time of
and continuing beyond the Corkill locations) independently thereof or in addition thereto, and deriving, whether
directly or indirectly, from Calendaria Water Works and Milling Co. in 1886. The official Mineral county tax
list for 1947 assessed to the appellant herein, improvements, pipe lines, etc., still identifiable with the original
properties owned by Calendaria Water Works and Milling Company.
works which as above stated included a pipe-line, a reservoir, and water rights, was in the
operators of the mill. As the mining activities at Candelaria began to drop off, the water
works remained a valuable property and it was necessary to employ men to keep it in a
condition of repair. The plaintiff finally succeeded to the ownership of the water works in
1929 from the Esmeralda Water and Milling Company and kept the water works operating
until 1942 when its agent Mr. A. R. Nelson ceased living in Candelaria. In 1944, 12 miles of
the pipe-line was sold to the State of Nevada together with water rights, with the right
reserved in the vendor to re-purchase the same on specified terms at any time within 10 years
from the sale.
As noted by the district judge, the Esmeralda Water and Milling Company owned the
water rights. It also owned the mill, under the deed from Bonbright and others in 1907. But
the deed from the trustees of Esmeralda Water and Milling Company to the Esmeralda Water
Company, the plaintiff herein, also included the water rights and the mill and also the pile
or bed of tailings located on the Lake and Dorris placer mining claims. When Esmeralda
Water and Milling Company leased the property to Jarmouth in 1918, including the mill, mill
site, buildings, etc., it expressly reserved the tailings. Other instruments in the record likewise
treated the tailings as personal property segregated from the real estate. It is also significant
that plaintiff still is the owner of an option, running into the year 1954, to buy back from the
state the water rights and twelve miles of pipe line sold to it in 1944.
3. Respondents at some length attack the deraignment of plaintiff's title, not only with
reference to ownership of the ground in question but also with reference to ownership of the
tailings, even if the same are considered personal property. We think it clear from the opinion
of the trial judge that appellant's claim to the tailings traces back to the original mill, but even
a break in that chain of title would not destroy appellant's possessory right under color of
title for some twenty years.
in that chain of title would not destroy appellant's possessory right under color of title for
some twenty years. Such possession, unless abandoned, affords it sufficient warrant to
maintain this action. Risch v. Wiseman, 36 Or. 484, 59 P. 1111, 78 Am. St.Rep. 783;
Schuman v. Venard, 110 Colo. 487, 136 P.2d 289; Stanley v. Sierra Nevada Silver Mining
Co., C.C., 118 F. 931.
Respondents contend that the lower court did not accept plaintiff's proof which sought to
establish that it and its predecessors impounded the tailings upon the ground or preserved
them against being lost * * * the proof on the part of defendant and plaintiff in this respect
was conflicting and the court chose to adopt the proof submitted by defendants as carrying the
greater weight in this respect. A careful examination of the record, however, shows that this
is not the case. The trial court made findings only as to the forfeiture of the plaintiff's Dorris
and Lake claims and the lawful relocation of these claims by the defendants as the Victory
and the Victory Fraction. It made no findings or conclusions whatsoever as to the
preservation by the plaintiff and its predecessors of the tailings as personal property. In its
opinion, however, the court definitely stated that the tailings came from the mill, that the
retaining wall had been constructed for the purpose of containing the tailings, that overflow
and driftings over the retaining wall were checked by the lower retaining wall and that the
tailings, except for some that were lost by wind, erosion and storm waters, are still
concentrated in the tailings pond. It was largely in view of this situation that we were moved
to state that the court's general finding No. 7, that plaintiff failed to substantiate by proof the
allegations of its complaint and defendants have shown by proof the relocation of valid and
subsisting mining claims * * * was of meager help. In view of findings one to six, having to
do entirely with the location, forfeiture and relocation of the claims, this finding must be
considered as attaching only to that feature of the case.
feature of the case. The court did not find that the plaintiff had not maintained its possession
of the tailings pond. It did not find that the plaintiff had abandoned its possession or
ownership of the tailings pond. It refused to find an abandonment of the tailings as personal
property, and confined itself entirely to the question of forfeiture of the Dorris and Lake
claims, and respondents, in seeking to uphold the judgment in their favor, under the trial
court's theory, still insist that the question of abandonment is not in the case. There being no
abandonment of the tailings by plaintiff and its predecessors, plaintiff is still the owner and
entitled to the possession thereof.
The final disposition of the case on appeal involves some difficulty, as it is not the
province of this court to make original findings. On the other hand no purpose could be
served by directing a new trial for the purpose of permitting the trial court to make findings
which it has already clearly indicated. It is clear that the judgment must be reversed on
account of the trial court's erroneous decision that plaintiff's title to the tailings fails because
the tailings were owned by the producers of the ores from the mines and not by the mill. It is
our understanding from the record, however, that the trial court did not find, in fact refused to
find, that plaintiff and its predecessors even abandoned the tailings or abandoned their claim
of ownership of the tailings, other than through the court's erroneous conclusion that the
tailings lost their character of personal property and became real estate, by reason of the
so-called recognition by plaintiff of the Corkill locations. With our conclusion that the
tailings were personal property belonging to Candelaria Water Works and Milling Company,
and that plaintiff's title, or at least its possessory rights, attached thereto prior to the Corkill
locations, and that such possessory rights were not destroyed by the Corkill locations in 1896,
and in the absence of a finding by the trial court, as a result of clear and convincing proof,
that the tailings and plaintiff's possessory rights thereto had been abandoned, the case
ends.
finding by the trial court, as a result of clear and convincing proof, that the tailings and
plaintiff's possessory rights thereto had been abandoned, the case ends.
The trial court's findings to the effect that the Dorris placer mining claim and the Lake
placer mining claim became forfeited by reason of failure of the owners to perform the annual
assessment work thereon or to file notice of intention to hold said placer mining claims under
the provisions of the acts of congress, for the years 1926-1945, and that said claims thereby
became subject to relocation, and that the defendants Martin P. Mackley and Charles R.
Hammock validly located the Victory placer mining claim and the Victory Fraction placer
mining claim and that the same were at the time of the filing of the complaint herein valid
and subsisting relocations of portions of the forfeited Dorris and Lake placer mining claims,
are hereby approved. The judgment insofar as it adjudges that said defendants are the owners
of the said Victory and Victory Fraction mining claims and that the same are valid and
subsisting placer mining claims, is hereby affirmed. The judgment insofar as it fails to
adjudge that the defendants' ownership of the Victory and Victory Fraction placer mining
claims is subject to plaintiff's ownership and right to the possession of the tailings pond
described in the complaint, is reversed. The case is remanded to the district court with
instructions to modify and add to its findings and to enter judgment accordingly. Appellant
will be allowed its costs in this court.
September 26, 1949.
Per Curiam:
Rehearing denied.
____________
66 Nev. 286, 286 (1949) State v. Helm
THE STATE OF NEVADA, Respondent, v.
CLIFFORD DUANE HELM, Appellant.
No. 3530
August 11, 1949. 209 P.2d 187.
1. Jury.
Refusal to allow defendant in murder prosecution to exercise his sixth peremptory challenge, was
error.
2. Criminal Law.
Whenever accused has been placed on trial, on a valid indictment, before a competent court, and the
jury is duly impaneled, sworn, and charged with the case, he has then reached the jeopardy from the
repetition of which he is protected by the constitution.
3. Criminal Law.
When a trial has commenced, whether for misdemeanor or felony, and judge discovers any
imperfection which will render a verdict against the defendant, either void or voidable by him, he may
stop the trial, and what has been done will be no impediment to future proceedings.
4. Criminal Law.
Where court erroneously refused to allow defendant to exercise his sixth peremptory challenge, jury
was sworn to try cause, information was read by clerk, plea was stated, and district attorney made his
opening statement, and court then recessed to the following day, and immediately on resumption of the
trial, judge stated that he had erred in refusing to allow defendant to exercise his sixth peremptory
challenge and declared a mistrial and dismissed jury, defendant's plea of once in jeopardy when
prosecution again came on for trial, was properly overruled.
5. Homicide.
In murder prosecution, wherein the evidence was insufficient to lay a foundation for the defense of
self-defense, court properly refused to admit defendant's evidence as to prior acts of violence on part of
the deceased.
6. Criminal Law.
Where no objection was made to alleged misstatements of the district attorney during course of
argument to jury in murder prosecution, and no request was made for instructions to the jury on the
subject, assignment of error with reference to such alleged misstatements could not be considered on
appeal.
7. Criminal Law.
Language used by deputy district attorney in argument to jury implying that defense counsel were
getting $25,000 to defend the defendant in the murder prosecution, was improper, but did not constitute
reversible error when considered in connection with the evidence as a whole.
66 Nev. 286, 287 (1949) State v. Helm
8. Criminal Law.
Statement of deputy district attorney in argument to jury in murder prosecution that the defense could
go down to gambling casino where defendant worked and get more witnesses than they had brought into
court and that probably all the defense would have to do was ask for the witnesses, was not reversible
error.
9. Witnesses.
In murder prosecution, court properly permitted the state's chief medical witness who had performed
autopsy on deceased, to use typewritten notes concerning the autopsy both to refresh his present
recollection and as a record of past recollection, though typewritten notes were merely copies of
handwritten notes which he had dictated to third persons, and though typewritten notes were not made
until a day or two after autopsy.
10. Criminal Law.
In murder prosecution, the trial judge may, in his sound discretion, reject the offer in evidence of
objects calculated to arouse the passions of the jurors.
11. Criminal Law.
In murder prosecution, court did not abuse its discretion in permitting the state to introduce in
evidence blood-stained clothing which had been worn by deceased at time of homicide, where the
clothing tended to corroborate testimony as to location and direction of wounds and, by inference, the
positions and attitudes of defendant and deceased when shots were fired by defendant.
12. Criminal Law.
In murder prosecution, court did not abuse discretion in admitting photographs which showed
deceased in his bloodstained clothing and showed wounds on various parts of deceased's body, though
clothing worn by deceased was admitted.
13. Criminal Law.
Photographic evidence will not be excluded merely because some witness has testified concerning the
conditions portrayed in the photograph.
14. Homicide.
In murder prosecution instruction that no threats or menaces made by deceased against defendant
could justify killing of deceased unless at time of killing, defendant was actually assailed or had sufficient
evidence to convince a reasonable man that he was in immediate danger, was not erroneous because of
the use of the word evidence.
15. Homicide.
In murder prosecution, instruction which opened with a reference to apparent danger and closed
with reference to a reasonably apparent danger was not erroneous on ground that apparent danger was
not sufficiently embodied in the instruction.
66 Nev. 286, 288 (1949) State v. Helm
16. Homicide.
In murder prosecution, instruction dealing with duty of one assailed to withdraw from conflict by
making a reasonable effort consistent with his own safety, so as to avoid the killing of his assailant, was
not erroneous because of the use of quoted words.
17. Jury.
Where clerk of court, under direction of court, called roll of veniremen, and, as to each person
therefore excused by the court, the clerk stated, excused by the court, there was substantial compliance
with rule providing that no juror shall be excused except in open court and that when a juror is excused,
the clerk shall immediately withdraw his name from the box for the period for which he has been
excused. Rules of District Court, rule 28.
18. Criminal Law.
In murder prosecution, overruling of defendant's objection to admission in evidence of a certain
conversation wherein defendant allegedly made an admission relating to charge against him in presence
of the witness and two others, on ground that there was no preliminary proof of the names of the other
persons who were present, was not error.
19. Witnesses.
Leading questions are permissible where they direct the attention of the witness to the subject matter.
20. Witnesses.
In murder prosecution, overruling of objections of defendant to certain questions propounded to
witness who was present when defendant made a detailed statement relative to the homicide, inquiring
whether defendant's statement was voluntary or under improper influence, was not error.
21. Criminal Law.
Statement of trial court in murder prosecution when defendant sought to introduce certain evidence
that court would let defendant put the evidence in in the absence of the jury, but that it had no materiality
as to what defendant intended to prove as to the homicide, was not erroneous on ground that it had effect
of telling jury that none of the testimony theretofore offered on behalf of defendant had any materiality.
22. Criminal Law.
Where record contained original instructions given by court as well as all requested instructions, and
showed that on opening of proceedings on certain date after the evidence was all in the trial judge stated
that all were present, that clerk would file the instructions, and that court would then read instructions to
jury, record sufficiently showed that instructions were settled in open court in presence of defendant.
N.C.L.1929, sec. 11028.
66 Nev. 286, 289 (1949) State v. Helm
Appeal from Eighth Judicial District Court, Clark County; A.S. Henderson, Judge.
Clifford Duane Helm was convicted of first-degree murder and from the judgment of
conviction and from an order denying his motion for new trial, he appeals. Judgment and
order affirmed.
Gordon W. Rice, of Reno, Leo A. McNamee, G. William Coulthard and Taylor & Gubler,
all of Las Vegas, for Appellant.
General, Robert E. Jones, District Attorney, A.W. Ham, Jr. and Roger D. Foley, Deputy
District Attorneys, Las Vegas, for Respondent.
OPINION
By the Court, Hatton, District Judge:
Clifford Duane Helm, the defendant below, is the appellant here. He will be referred to
herein as the defendant.
The defendant was charged with the murder of one Frank Ferroni, Jr., also known as John
Beasley, in an Information filed by the district attorney of Clark County, Nevada, on March
27, 1947, to which he, on April 16, 1947, entered his plea of not guilty. On June 2, 1947, the
impaneling of the jury began, the information was read to the prospective jurors, and the
impaneling proceeded to the point where the state and the defendant entered upon the
exercising of their peremptory challenges. The defendant passed his third, fourth, and fifth
peremptory challenges. Then, with the twelve jurors in the box remaining the same as upon
the passing of his fifth peremptory challenge, his counsel asked leave to exercise his sixth
peremptory challenge, by challenging one Robinson, which request the trial judge refused
to grant, and to which ruling the defendant excepted.
66 Nev. 286, 290 (1949) State v. Helm
leave to exercise his sixth peremptory challenge, by challenging one Robinson, which request
the trial judge refused to grant, and to which ruling the defendant excepted. The jury were
then sworn to try the cause, the Information was read by the clerk, and the plea stated, and the
district attorney made his opening statement. The court then recessed to the following day,
when the trial was resumed. Immediately upon the resumption of the trial, the trial judge
stated his opinion that he had erred on the previous day in refusing to allow the defendant to
exercise his sixth peremptory challenge, and stated that he would declare a mistrial unless the
parties accepted the jury. Defendant's counsel stated that he would stand on the record, and
was unwilling to accept the jury except upon the conditions as shown by the record. He
neither specifically consented nor objected to the discharge of the jury. The court then
declared a mistrial, and dismissed the jury. The trial of the case was reset for September 15,
1947. On that date, the defendant applied for leave to withdraw his plea of not guilty and
substitute a plea, in writing, of once in jeopardy and asking for his discharge, which
application was refused by the court. The defendant, however, was allowed to file his said
plea of once in jeopardy. The trial was then proceeded with, and resulted in a verdict of guilty
of murder of the first degree, the punishment being fixed at life imprisonment.
The first alleged error assigned and discussed in the briefs is that the trial court erred in
denying the defendant's plea of once in jeopardy.
1. Upon the authority of the case of State v. Pritchard, 15 Nev. 74, it is clear that the court
erred in refusing to allow the defendant to exercise his sixth peremptory challenge, and that a
verdict of guilty upon a trial before the jurors then in the jury box would have been set aside
on appeal to this court. The question arises as to whether or not the defendant had already
suffered a prior jeopardy when he was brought to trial on September 15, 1947.
66 Nev. 286, 291 (1949) State v. Helm
2, 3. The subject of prior jeopardy was before this court in the case of Ex parte Maxwell,
11 Nev. 428. In that case the jury had failed to agree on a verdict, and were dismissed without
a determination by the court, on the record, of the grounds for such dismissal, and it was held
that, in the absence of such determination, prior jeopardy was shown. In the opinion in the
Maxwell case the following statements appear:
Although there still exists some conflict and confusion in the opinion of judges upon this
question, the rule now seems to be pretty well settled in the American courts that whenever
the accused has been placed upon trial, upon a valid indictment, before a competent court,
and a jury duly impaneled, sworn and charged with the case, he has then reached the
jeopardy, from the repetition of which this constitutional provision protects him.
* * * * * * *
Bishop, in his treatise on criminal law, after an elaborate review of the authorities and a
discussion of the whole subject says: The better view of this whole question may be stated as
follows: Whenever a trial has commenced whether for misdemeanor or felony [and] the judge
discovers any imperfection which will render a verdict against the defendant either void or
voidable by him, he may stop the trial, and what has been done will be no impediment in the
way of any future proceedings.'
* * * * * * *
In other words, when the record shows an actual jeopardy to have taken place against the
defendant, he is protected thereby from further peril for the alleged offense. But where the
record shows also matters disproving the peril, it does not show the peril, whatever else it
shows, and therefore it does not protect him.
In the later edition of the work referred to, Bishop's New Criminal Law, Vol. 1, p. 622, the
author adds: Then, the prima facie jeopardy appearing of record, matter nullifying it will also
appear, and the defendant will be properly held for further proceedings.
66 Nev. 286, 292 (1949) State v. Helm
At page 623 the author states: If, after the trial has commenced, a juror is discovered to
have been insufficiently sworn, or to be insane, or not of the panel, or from any other cause
incompetent, he may be discharged or the error corrected otherwise without entitling the
prisoner to go free. Some state the rule to be that anything discovered in a juror showing him
not to be a proper one to sit in the case will work this result. But the better form of the
doctrine is that the matter must be such as the defendant can make ground for a new trial if
the verdict is against him.
4. It is shown, on the record in this case, that the jury above referred to was never duly, or
legally, impaneled. We therefore conclude that the defendant's abortive trial before that jury
was not attended with jeopardy or peril of a legal conviction, and we must decide that the trial
court did not err in denying the defendant's plea of once in jeopardy.
The defendant contends that the first jury was discharged without such necessity as the law
recognized as legally sufficient, and that hence its discharge was equivalent to his acquittal.
The authorities quoted from above support the view that there was presented to the trial court,
in the present case, a necessity for the discharge of the jury, which necessity was both
manifest and over ruling. The American cases hold generally that the determining of such
necessity lies in the discretion of the trial court upon a consideration of all of the
circumstances of the case. 22 C.J.S., Criminal Law, sec. 258, page 394. In the present case,
the court could either have proceeded with the trial knowing that the judicial machinery was
legally defective and that a verdict of guilty would be set aside by this court on appeal, or the
trial judge could declare a mistrial and begin anew. We regard it as clear that the ends of
public justice demanded the latter course.
In the case of Thompson v. U. S., 1894, 155 U.S. 271, 15 S.Ct. 73, 74, 39 L.Ed. 146, the
supreme court of the United States considered and passed upon a case similar to the one
presented here.
66 Nev. 286, 293 (1949) State v. Helm
United States considered and passed upon a case similar to the one presented here. In that
case, after the jury was sworn and the trial was proceeding, the fact that one of the jurors was
disqualified, by having been a member of the grand jury that found the indictment, became
known to the court. Thereupon the court, without the consent of the defendant and under
exception, discharged and ordered a new trial. The defendant pleaded once in jeopardy, and
the supreme court, in holding that no jeopardy had attached, said: As to the question raised
by the plea of former jeopardy, it is sufficiently answered by citing U.S. v. Perez, 9 Wheat.
579 [22 U.S. 579, 6 L.Ed. 165]; Simmons v. U. S., 142 U.S. 148, 12 S.Ct. 171, [35 L.Ed.
968], and Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, [36 L.Ed. 429]. Those cases
clearly establish the law of this court that courts of justice are invested with the authority to
discharge a jury from giving any verdict whenever, in their opinion, taking all the
circumstances into consideration, there is a manifest necessity for the act, or the ends of
public justice would otherwise be defeated, and to order a trial by another jury; and that the
defendant is not thereby twice put in jeopardy within the meaning of the fifth amendment to
the constitution of the United States.
As late as April 25, 1949, that high tribunal refused to adopt a formula inconsistent with
the guiding principles of the Perez decision to which we adhere. Continuing, the court said:
Those principles command courts in considering whether a trial should be terminated
without judgment to take all circumstances into account' and thereby forbid the mechanical
application of an abstract formula. The value of the Perez principles thus lies in their capacity
for informed application under widely different circumstances, without injury to defendants
or to the public interest. Wade v. Hunter, 1948, 336 U.S. 684, 69 S.Ct. 834, 838.
The American Law Institute, after several years of study of the authorities on this
subject, adopted the following rule: "Sec. 7. Discharge of Juryeffect of.
66 Nev. 286, 294 (1949) State v. Helm
study of the authorities on this subject, adopted the following rule: Sec. 7. Discharge of
Juryeffect of. If during the trial of a person for an offense the jury is discharged before
verdict rendered because it is impossible to proceed with the trial, or to proceed without
manifest injustice to the defendant or to the state, or the defendant consents to or otherwise
waives his right to object to such discharge, the defendant may be again prosecuted for the
same offense.
Upon the foregoing authorities, this court holds that the discharge of the first jury was
upon grounds legally sufficient, and did not constitute an acquittal of the defendant.
In the principal cases relied on by defendant, it appears that the trial had commenced,
before a jury legally impaneled and sworn, before the declaring of a mistrial, and that a
mistrial was declared for a legally insufficient season. This distinguishes the cases referred to
from the one presented here, in which the first jury was not legally impaneled.
In People v. Young, 100 Cal.App. 18, 279 P. 824, cited by defendant, after the jury had
been legally impaneled and sworn, the court allowed the state to exercise a peremptory
challenge, the juror so challenged was dismissed and a new juror substituted. A plea of
second jeopardy was denied by the court. The supreme court held that, under California law, a
peremptory challenge may not be exercised after the jury has been duly impaneled and sworn,
that no disqualification on the part of the challenged juror was shown, and that the accused
had suffered a prior jeopardy before the jury as originally impaneled. The case affords no
guidance in the present case. The same is true of the case of Jackson v. Superior Court, 10
Cal.2d 350, 74 P.2d 243, 113 A.L.R. 1422. There it was held that the defendants were placed
in jeopardy when a jury was impaneled and sworn and a mistrial was declared immediately
thereafter, over defendants' objections, because of an error in impaneling the jury, which
error would not have been regarded as warranting the setting aside of a conviction, and
which was waived by the defendants.
66 Nev. 286, 295 (1949) State v. Helm
defendants' objections, because of an error in impaneling the jury, which error would not have
been regarded as warranting the setting aside of a conviction, and which was waived by the
defendants. Unlike the Jackson case, the case presented here shows that the first jury was not
legally impaneled, and that a conviction by it would have been set aside on appeal.
In Hilands v. Commonwealth, 1886, 111 Pa. 1, 2 A. 70, 72, 56 Am.Rep. 235, after the jury
had been legally impaneled and sworn, the court allowed a juror to go to his home on account
of sickness in his family. This was done with the consent of the accused. The trial judge,
believing that he had erred, discharged the jury. The defendant's plea of prior jeopardy was
overruled. In reversing the judgment of conviction, the supreme court held that the trial court,
of its own will and action, had discharged the jury after it had been duly impaneled and sworn
and after the attaching of jeopardy. The court further stated that it could not find that the first
jury was discharged under such extreme and overwhelming necessity as to subject the
prisoner to be again put in jeopardy.
Also in the case of Oliveros v. State, 120 Ga. 237, 47 S.E. 627, 1 Ann.Cas. 114, as in the
three cases last referred, to the trial was proceeding before a jury legally impaneled and
sworn. The alleged error for which a mistrial was declared was in the admission in evidence
of a certain receipt, and the oral comment of the judge as to its effect and weight as evidence,
which comment the trial court believed to be contrary to the statute. Upon trial before another
jury prior jeopardy appeared by reason of the fact that the first jury was legally impaneled and
sworn. The Georgia court held that, under these circumstances, such jeopardy could not be
nullified by a dismissal of the jury for the error shown, if it was error. The chief justice
expressed the opinion that error had not occurred.
66 Nev. 286, 296 (1949) State v. Helm
We have examined other cases cited by the defendant, but they have not been found
sufficiently applicable and persuasive to change the views above expressed.
As his second assignment of error, the defendant avers that the trial court erred in
sustaining respondent's objection to defendant's offer to prove certain specific acts of violence
committed by the deceased on other persons and personally known to defendant prior to the
homicide involved in this case.
At the time of the homicide, the defendant and Ferroni were employed in the Las Vegas
Club, a gaming casino. They had been acquainted for a number of years, and had worked and
travelled together. Defendant had been directed by one of their employers, Mr. Flournoy, to
arrange with Ferroni for his departure from Las Vegas, and had been furnished with the sum
of $100 to purchase, for Ferroni, a ticket for transportation to New York City and for his
expenses en route. Defendant testified, I told Mr. Flournoy at the time he gave me the money
that Mr. Beasley (Ferroni) didn't want to go by Salt Lake City and that way; that he wanted
the cash to go to Kingman, Arizona, to go from Kingman, Arizona, and Mr. Flournoy
instructed me to buy his ticket to Salt Lake and see that he got on the train. The testimony
showed that the defendant and Ferroni met in the boiler room at the rear of the casino, and
there had an argument over the plan referred to. Defendant, as a special police officer, was
armed with a pistol. A pocket knife was later found on the floor of the boiler room. No
weapon was found on the deceased. Defendant testified that, in the quarrel which ensued
between them, Ferroni thrust toward him with a knife held in his right hand, that they grapled
and struggled about the boiler room, during which time defendant shot Ferroni at least once,
and the struggle continued; that he struck Ferroni over the head with the gun, the latter going
down on his knees, and defendant on one knee. The testimony further tended to show that the
witness Ceas, a special police officer in the casino, heard two or three shots, and then went
through the hallway from the casino to the boiler room, and opened the door thereto, at
which moment Ferroni emerged through the door and into the hallway; that, at the same
time, the defendant, from within the boiler room, called to Ceas to intercept Ferroni and
not let him get away; that Ceas took hold of Ferroni and held him with the latter's head
over a table in the hallway and opposite the boiler room doorway; that Ceas ran to call a
policeman, and that one or more other persons, who had come upon the scene,
endeavored to hold Ferroni, and that the latter moved in the direction of the exit from the
hallway into the casino.
66 Nev. 286, 297 (1949) State v. Helm
and then went through the hallway from the casino to the boiler room, and opened the door
thereto, at which moment Ferroni emerged through the door and into the hallway; that, at the
same time, the defendant, from within the boiler room, called to Ceas to intercept Ferroni and
not let him get away; that Ceas took hold of Ferroni and held him with the latter's head over a
table in the hallway and opposite the boiler room doorway; that Ceas ran to call a policeman,
and that one or more other persons, who had come upon the scene, endeavored to hold
Ferroni, and that the latter moved in the direction of the exit from the hallway into the casino.
The witness Schmidt testified that Ferroni said Don't let him kill me, and that, as the
defendant emerged from the boiler room, Fred Merrill, one of his employers, who had come
upon the scene, called to defendant Don't, Cliff. The testimony further tended to prove that
defendant, then in the hallway, shot Ferroni in the back of the neck; that Ferroni moved
toward the exit from the hallway into the casino; that one or two additional shots were fired
by defendant, the last when Ferroni was several feet away from him and moving toward the
exit; whereupon Ferroni, after a few steps, fell on the floor and died; that the fatal bullet
entered Ferroni's chest three inches above the left nipple and two inches to the left of the
midline, and emerged through the right shoulder blade. The witness Takos testified, in
substance, that Ferroni, in his progress toward the exit into the casino, and at about the time
of the firing of the last shot, turned around; also that Ferroni was walking when he got the
two shots, and that, when he was walking away, his back was turned toward the defendant
just a little bit. The defendant testified that he remembered fighting back up to the steps
leading from the boiler room into the hallway, and stumbling over the steps there, and that
from then on he could not be positive as to what happened. Ferroni was a considerably
heavier and stronger man than defendant.
After his arrest, it was found that the defendant's necktie and shirt had been cut.
66 Nev. 286, 298 (1949) State v. Helm
necktie and shirt had been cut. The witness McDaniel, an employee of the Federal Bureau of
Investigation, testified that he had examined the knife which was found on the boiler room
floor, and also the knife taken from the possession of defendant after his arrest, as well as
defendant's necktie and shirt referred to, and that he found on defendant's knife bluish-black
and also red silk fibres which came either from the defendant's necktie or from a fabric
composed of fibres identical with the fibres of the tie; and, also, that he found on said knife
certain wool and rayon fibres which came either from the defendant's shirt or a similar fabric.
The witness further testified that, on the knife found on the boiler room floor, he found no
silk fibres, but that he found white wool fibres of a common character which could have
come from defendant's shirt. The microscope slides, showing the original fibres referred to,
and photographs thereof, were identified by the witness, and received in evidence.
5. With testimony adduced as above summarized, the trial judge stated that, as he viewed
the proofs, no sufficient foundation had been laid in proof of self-defense to justify the
admission of evidence of prior acts of violence on the part of the deceased, and he ruled
accordingly. In so ruling, we are satisfied that the court did not err.
In the case of State v. Pearce, 15 Nev. 188, certain witnesses were asked as to their
individual knowledge of the character and disposition of the deceased for peace and
quietness. Objections to the questions were sustained. No offer was made to prove the general
character of the deceased in this respect. In ruling on the subject this court said:
The proper way of getting at this disposition of his mind is by introducing evidence of his
general character founded on his general reputation in the neighborhood where he lives.
We are, however, satisfied, that no testimony had been given in the case which
authorized the introduction of any evidence in relation to the character of the deceased.
66 Nev. 286, 299 (1949) State v. Helm
been given in the case which authorized the introduction of any evidence in relation to the
character of the deceased. The character of the deceased can only be brought in issue where
the circumstances are such as to raise a doubt whether the homicide was committed in malice
or was prompted by the instinct of self-preservation. It may, in such cases, always be inquired
into, by the defendant, for the purpose of enabling the jury to determine the real motive which
actuated the defendant, or the reasonableness of his fears that his own life was in danger.
Every case must, in this respect, be gauged with reference to its own surroundings; for, as is
stated by Bishop: There can be no general rule on the subject other than the one which
rejects the evidence of character and of general bad conduct, except where the foundation for
it is specially laid in the facts, real or assumed, of the particular case.'
In the case of State v. Vaughan, 22 Nev. 285, 39 P. 733, 735, this court said: Ordinarily,
assaults made upon a third person by deceased could only bear upon his general character or
disposition, and as to that it is only evidence of general reputation, and not of particular
actions, that is admissible.
In the case of State v. Sella, 41 Nev. 113, 168 P. 278, 285, this court said:
We adhere to the rule which we believe to be supported by the great weight of authority,
that the character or reputation of the deceased in homicide cases is to be proven rather by
evidence of general reputation of the deceased in the community in which he lived than by
particular acts or instances which were not a part of the res gestae nor connected therewith.
* * *
Neither does the principle to which we adhere come under the general rule that when
self-defense is an issue and it is necessary to show the state of mind of the slayer at the time
of the commission of the offense, specific acts of violence of the deceased, which are then
known to the slayer or have been communicated to him, which tend to show that the
deceased was a violent and dangerous man, may be shown for the purpose of establishing
self-defense."
66 Nev. 286, 300 (1949) State v. Helm
to show that the deceased was a violent and dangerous man, may be shown for the purpose of
establishing self-defense.
In the Sella case, the question to be determined was as to whether, on the
cross-examination of a character witness, he could be questioned as to particular acts of
violence perpetrated by the deceased on third persons; which question was answered by the
court in the affirmative. Appended to the first paragraph above quoted from the Sella case,
this court cited a considerable number of authorities from states which have adhered to a
strict rule of exclusion of testimony as to specific acts of violence upon third persons. See,
also, 121 A.L.R. annotation, at page 382. In the second paragraph quoted, this court stated
that when self-defense is an issue and it is necessary to show the state of mind of the slayer,
such specific acts of the deceased may be shown. (Italics ours.)
In dealing with this subject, in the case of People v. Soules, 1940, 41 Cal.App.2d 298, 106
P.2d 639, 642, the District Court of Appeal for the third district of California said:
It is, however, apparent that even if such evidence is competent, under certain
circumstances, it should be received with caution for the reason that it is remote, weak,
collateral to the real issue, confusing to the jury, unsatisfactory and difficult to rebut. To
entitle such evidence to any substantial weight it would be necessary to adduce proof of the
circumstances of each previous affray to fairly determine whether the deceased was warranted
in acting as he did. For those reasons the great weight of authority holds that evidence of such
prior specific acts of violence by the deceased upon other persons is not admissible upon trial
of a subsequent offense. It is almost uniformly held that proof of the turbulent, violent and
dangerous character of a person, offered for the purpose of concluding therefrom that he was
more likely to have been the aggressor in an affray which resulted in his death, must be
established by evidence of his general reputation for peace and quiet in the community
where he resides.
66 Nev. 286, 301 (1949) State v. Helm
was more likely to have been the aggressor in an affray which resulted in his death, must be
established by evidence of his general reputation for peace and quiet in the community where
he resides. The same rule is usually applicable to evidence of a violent nature adduced in
assault and murder cases to corroborate the defendant in his claim that he acted in necessary
self-defense, believing from the circumstances of the particular case, as a reasonable man,
that he was about to be assaulted and that he was likely to be killed or to receive great bodily
harm. People v. Griner, 124 Cal. 19, 56 P. 625; People v. Henderson, 28 Cal. 465; State v.
Sella, 41 Nev. 113, 168 P. 278, 285; 25 Calif.Law Rev. 459, 467; 121 A.L.R. 382, note; 26
Am.Jur. 393, 347; 13 Cal.Jur. 693, 77; 30 C.J. 230, 467. * * *.
Many authorities hold that before evidence of prior specific acts of violence may be
adduced, the defendant is required to make a preliminary showing of his good faith as a
reasonable person in believing it was necessary for him to kill his assailant to protect himself
against great bodily harm. If it clearly appears that the defendant was the aggressor or that he
was in no imminent danger of death or great bodily harm, evidence of prior acts of violence
upon other persons by the deceased is not admissible. The trial court has a sound discretion to
determine from all of the facts and circumstances adduced whether a prima facie showing of
good faith on the part of the defendant has been established sufficiently to warrant the
reception of evidence of prior acts of violence upon other persons by the deceased.
We are of the view that the trial judge, in the case now before us, was within the bounds of
a sound discretion when he concluded that a sufficient showing of necessity to kill his
antagonist, in order to protect himself was not made by the defendant.
6. As his third assignment of error, the defendant avers that the trial court erred in denying
his motion for a mistrial based on alleged gross misbehavior of the district attorney during
the trial.
66 Nev. 286, 302 (1949) State v. Helm
a mistrial based on alleged gross misbehavior of the district attorney during the trial. The first
incident referred to in the brief is the use of the word murder, instead of a more appropriate
word, in a question propounded to defendant on cross-examination. The court sustained
defendant's objection, admonished the jury to disregard the use of the word and cautioned
counsel, and the latter expressed his regret. There was no motion to declare a mistrial at this
point or involving this incident. The defendant further, under his third specification, refers to
his objections to questions propounded to defendant's witness Stewart, on cross-examination,
as to whether he had received from one of the proprietors of the Las Vegas Club the gift of a
colt and a pair of boots. Defendant's objections to the question were sustained. Further, under
this assignment of error, the defendant lists nine instances of alleged misstatements on the
part of the district attorney in his argument to the jury, which defendant contends amounted,
in a cumulative way, to prejudicial misconduct. No objection was made to the alleged
misstatements during the course of the argument, and no request was made for instructions to
the jury on the subject. Under the rule announced in the case of State v. McNeil, 53 Nev. 428,
4 P.2d 889, the assignment of error on these matters cannot be considered at this time.
7, 8. As his fourth assignment of error, the defendant avers that the trial court erred in
permitting the deputy district attorney to make numerous defamatory statements and highly
prejudicial remarks to the jury in his argument. On cross-examination, the defendant was
asked if he was a vagrant on a certain day. Objection to the question was sustained and
counsel admonished. Defendant further specifies that, in connection with the question last
referred to, the deputy district attorney, without leave of court, exhibited to the jury an
enlarged photograph of defendant with his fingerprints thereon. The record does not disclose
this incident.
66 Nev. 286, 303 (1949) State v. Helm
dent. The deputy district attorney, in his argument, used language implying that defense
counsel were getting $25,000 to defend Clifford Helm. The remark was objected to as
prejudicial, and the court admonished the jury not to pay any heed to the same, as not in
evidence. While the statement referred to was improper, we do not regard the incident as
constituting reversible error, when considered in connection with the evidence as a whole.
The defendant, in the brief, then lists several other excerpts from the argument of the deputy
district attorney, and assigns prejudicial error thereon. No objection was made in any of the
instances last referred to. Then follows the specification of a statement of the deputy district
attorney which he concluded by saying to the jury, I want to tell you that down there now in
the Las Vegas Club they can get more witnesses than they brought here; probably all they
have to do is ask for them. A motion for mistrial was then made. The trial judge denied the
motion, saying These are conclusions they have a right to draw. Defendant argues that the
language used by the deputy district attorney insinuated that the Las Vegas Club could and
would bring witnesses and submit perjured testimony upon defendant's request. As based on
the circumstances surrounding the homicide as shown by the record, the statement objected to
was a conjecture rather than a fair and reasonable inference. In the recent case of State v.
Teeter, 65 Nev. 584, 200 P.2d 657, at page 682 et seq., Horsey, J., discussed at length the
inferences or conclusions which may or may not be fairly drawn by the district attorney in his
argument to the jury. We reaffirm the principles and admonitions there set down. It should be
noted, however, that the conclusions of Mr. Justice Horsey that reversible error in that regard
had occurred was not the majority ruling, the concurrence for a reversal of the judgment being
confined to a different reason. While there is grave doubt, in the present case, as to the
fairness of the language of the deputy district attorney, we conclude that it did not
constitute reversible error in view of the ample evidence supporting the conviction.
66 Nev. 286, 304 (1949) State v. Helm
district attorney, we conclude that it did not constitute reversible error in view of the ample
evidence supporting the conviction.
9. As his fifth assignment of error, the defendant avers that the trial court erred in
overruling his objection to the state's chief medical witness testifying directly from
typewritten notes. Dr. Cherry, the witness referred to, testified, in substance, that he
conducted the autopsy, personally examined the body of the deceased, and, as the
examination progressed, he dictated to Mr. Cupit and Dr. George the descriptions of the
various wounds, his said assistants writing the descriptions in long-hand; that after the
autopsy he checked the long-hand notes referred to; that thereafter, using the notes referred to
and a diagram of the body, made by himself at the autopsy, he prepared his typewritten
findings as to the condition of the body as disclosed by the autopsy; and that he discarded or
destroyed the original long-hand notes; that the typewritten notes accurately reflected the
information in the original notes; that, as near as the witness could recall, the typewritten
notes were made on the day following the autopsy, or within a day or two thereafter.
Defendant objected to the use of the typewritten notes on the ground that they were not the
original notes, that the original notes were not made by the witness himself, were not
typewritten contemporaneously with or immediately following the autopsy, and that the notes
did not refresh the recollection of the witness, and were not permissible to be referred to. The
objection was overruled. The typewritten notes themselves were not introduced in evidence.
The witness testified, I can testify to the entire autopsy procedure without my notes, but I
cannot give you accurate measurements of the size of the lacerations or abrasions. It is clear
that, as to the general description of the wounds, and excepting as to measurements and as to
the smaller details, the witness testified from his recollection, refreshed, in some instances, by
reference to the typewritten statement.
66 Nev. 286, 305 (1949) State v. Helm
typewritten statement. The witness testified, this bullet that entered the left side of the chest
entered the left side of the chest and traveled in a rightward direction to the right side of the
chestthe right side of the backwas the bullet that was the cause of death, this bullet
severing the ascending aorta, which is your large blood vessel attached to the top of the heart.
It is the blood vessel that leads blood from the heart to the bodyand was the one that caused
his death, which, of course, was due to hemorrhage. He further testified, It entered the
pericardial sac, which is the sac that surrounds and covers the heart, so it was at the top of the
heart, approximately, we will say, a half inch to three-quarters of an inch above the heart
without actually touching the heart. It is evident that, in the testimony just quoted, the
witness was testifying from present recollection. The record shows that the typewritten notes
were used by the witness both as a record of past recollection, as to measurements and details,
and as a means of refreshing his present recollection. In 3 Wigmore on Evidence, 3d ed., sec.
754, p. 97, under the heading of past recollection recorded, the author quotes from the case of
Howard v. McDonough, 77 N.Y. 592, as follows: After the witness has testified, the
memorandum which he had used may be put in evidence,not as proving anything of itself,
but as a detailed statement of the items testified to by the witness. The manner in which the
memorandum in such a case may be used is very much in the discretion of the trial judge.
We conclude that the trial court was within the bounds of sound discretion in allowing the
use of the typewritten statement referred to, both to refresh present recollection and as a
record of past recollection.
As his sixth assignment of error, defendant avers that the trial court erred in unduly
restricting the defendant's cross-examination of the state's chief medical witness. The record
shows that the court permitted a lengthy cross-examination of the witness referred to, and that
such limitations as were placed thereon were within the discretion of the court.
66 Nev. 286, 306 (1949) State v. Helm
such limitations as were placed thereon were within the discretion of the court. State v.
McNeil, 53 Nev. 428, 4 P.2d 889.
10, 11. The seventh assignment is that the trial court erred in admitting in evidence articles
of clothing worn by the deceased at the time of the homicide. There were a number of such
articles. Defendant objected that, because of their bloodstained condition, they would tend to
arouse, and were offered for the purpose of arousing, in the jurors a prejudice against the
defendant. Defendant, at that juncture of the trial, undertook to concede the location of the
wounds on the body of the deceased, although counsel vigorously sought to discredit the
principal medical witness of the state. Lack of necessity, therefore, cannot be invoked as
against the exhibiting to the jury of the coat, shirt and undershirt. They tended to corroborate
the testimony of the witness referred to, and other witnesses, as to the location and direction
of the wounds, and, by inference, the positions and attitudes of defendant and deceased when
the shots were fired. As to the necktie, there was an issue as to which knife was used in its
cutting. The trousers were stained with dirt and grease on the knees, caused, so the state
argued, from the kneeling of the deceased on the boiler room floor. The admission of the
other garments, shorts and shoes, was not objectionable on the ground urged. The trial judge
may, in his sound discretion, reject the offer in evidence of objects calculated to arouse the
passions of the jurors. 4 Wigmore on Evidence, 3d ed., sec. 1157; State v. Gallegos, 45 N.M.
404, 115 P.2d 626. We find no error in this regard.
12. The eighth assignment of error is directed against the rulings of the trial court in
admitting in evidence certain photographs, numbered as state's exhibits 19, 20, 21 and 22.
The objection was made that they were posed photographs, had no connection with the
occurrence, and that they were offered to arouse the prejudice of the jury against the
defendant. The photograph No. 19, showing the deceased in his bloodstained clothing, was
taken at 5:30 p. m. on the day of the homicide, according to the testimony of the witness
Horner, who took the photographs. No. 20, a photograph of the head of the deceased,
shows a scalp wound and wounds on the face. No. 21 shows wounds on the left hand and
arm. No. 22 shows the bullet wounds on the back of the neck and at the right shoulder
blade.
66 Nev. 286, 307 (1949) State v. Helm
was taken at 5:30 p. m. on the day of the homicide, according to the testimony of the witness
Horner, who took the photographs. No. 20, a photograph of the head of the deceased, shows a
scalp wound and wounds on the face. No. 21 shows wounds on the left hand and arm. No. 22
shows the bullet wounds on the back of the neck and at the right shoulder blade. Testimony
describing these wounds was given by Dr. Cherry. The last three photographs were taken at
the mortuary at about 9:30 p. m. of the same day, according to the testimony of Horner. The
latter testified that the photographs were good representations of what he saw. This subject
was dealt with by this court in the case of State v. Roberts, 28 Nev. 350, 82 P. 100, and in
State v. Holt, 47 Nev. 233, 219 P. 557. The Roberts case, like the one now before us,
involved photographs of wounds. This court said that they were [28 Nev. 350, 82 P. 103]
illustrative and instructive in connection with the testimony of the doctor and other
witnesses. In the Holt case, after quoting from the opinion in the Roberts case, this court said
[47 Nev. 233, 219 P. 560]: In this age of general education, wherein people are trained to
think, we believe there is little danger of the minds of a jury being influenced merely because
a bloody garment, a photograph showing a bloody garment, or any other bloody object is
introduced in evidence and exhibited to them. But, however this may be, if such evidence can
serve to throw light upon the matter inquired into, or can present a situation for the
enlightment of the jury more clearly and satisfactorily than can be presented by oral
testimony, we think it is no abuse of discretion for the court to permit its introduction.
* * * * * * *
13. See, also, the recent case of Godvig v. Lopez, Or., 202 P.2d 935, 937. The photograph
No. 19 showing the body of the deceased in his clothing, served to connect the clothing, as
introduced in evidence, as the garments worn by him at the time of the homicide. As stated in
Godvig v. Lopez, supra, there is no best evidence rule which excludes photographic
evidence merely because some witness has testified concerning the conditions portrayed
in the picture."
66 Nev. 286, 308 (1949) State v. Helm
which excludes photographic evidence merely because some witness has testified concerning
the conditions portrayed in the picture. Nor would the fact that the garments themselves had
been received in evidence indicate an abuse of discretion in admitting the photograph. Upon
the principles adopted in the cases last referred to, we find no abuse of discretion or other
error in the rulings admitting in evidence the photographs referred to.
The ninth assignment is directed against the court's instruction No. 21. The use of the
language quoted in the instruction, from section 10081, N.C.L. 1929, was proper. The subject
of burden of proof with regard to self-defense is adequately covered in other instructions.
14. The tenth assignment is directed against instruction No. 31. Defendant objects to the
use of the word evidence appearing as follows: No threats or menaces made by Ferroni
against the defendant, Clifford Duane Helm, can justify the killing of Ferroni unless at the
time of the killing, Helm was actually assailed or had sufficient evidence to convince a
reasonable man that he was in immediate danger, etc.
Defendant urges that the accused may act, in self-defense, on appearances, rather than on
evidence. Webster defines the word evidence as meaning, in its legal application, that
which is legally submitted to a competent tribunal as a means of ascertaining the truth * * *.
Properly evidence is to be distinguished from proof, which is the effect of evidence * * *.
The defendant was required to, and did, submit in evidence the alleged facts and
circumstances on which he relied to support his plea of self-defense. The instruction stated
that if such evidence did not justify his conduct as a reasonable man, the homicide could not
be justified by the mere possibility that Ferroni might return and seek revenge. In other
instructions, the jury were instructed that a person assailed may act on such appearances as
would influence a reasonable man. If defendant desired a further clarification of the subject,
he should have submitted a requested instruction for that purpose.
66 Nev. 286, 309 (1949) State v. Helm
have submitted a requested instruction for that purpose. State v. Davis, 14 Nev. 407; State v.
McLane, 15 Nev. 345; State v. St. Clair, 16 Nev. 207; State v. Hing, 16 Nev. 307; see, also, 8
Cal.Jur. 309, sec. 362. We find no error in the giving of the instruction referred to.
15. The eleventh assignment is directed against instruction No. 33. The defendant charges
that portions of the instructions are misstatements of the law. The instruction opens with a
reference to apparent danger, and closes with a reference to reasonably apparent danger.
We consider that the element of apparent danger is sufficiently embodied in the instruction,
and find no error therein.
16. The twelfth assignment is directed against instruction No. 35. The instruction deals
with the duty of one assailed to withdraw from the conflict by all reasonable means consistent
with his own safety, so as to avoid the killing of his assailant. Defendant objects to the use of
the words a reasonable effort in that connection. An instruction in the same language was
before this court in the case of State v. Robison, 54 Nev. 56, 6 P.2d 433, and no error was
found in the instruction. While the use of the words a reasonable effort was not under
special consideration at that time, we consider the words unobjectionable in describing the
duty of the person assailed, and consistent with the idea of reasonable safety on his part. We
find no error in the instruction.
The thirteenth assignment is directed against instruction No. 36. The element as to
reasonable apprehension of danger is properly presented, and we regard the instruction as
being in conformity with the law on the subject.
The fourteenth assignment is directed against the rulings of the court in refusing to give
certain of the defendant's requested instructions. We have examined the fourteen requested
instructions which appear in the record. One of them touched upon the adverse presumption
alleged to arise from the willful suppression of evidence on the part of the state. Our attention
is not directed to the matter referred to, nor have we discovered any willful suppression of
evidence in the record.
66 Nev. 286, 310 (1949) State v. Helm
directed to the matter referred to, nor have we discovered any willful suppression of evidence
in the record. We find no error in that regard. One of the requested instructions relates to the
degree of proof necessary to warrant a conviction on circumstantial evidence. The trial court
refused the offer, endorsing thereon his reason that there was not enough evidence in the case
to warrant such instruction. Instruction No. 56, given by the court, is a sufficient instruction
in that regard, in view of the evidence in the case. On most of the requested instructions the
trial judge endorsed his reason for refusal, with which reasons we agree. Without further
dealing with the requested instructions separately, we find, in each instance, no prejudicial
error in the refusal to give the same.
Assignment No. 15 is directed against the action of the trial court in excusing certain
prospective jurors out of court. District Court Rule No. 28 provides as follows: No juror
shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
17. In the opening proceedings on the day of trial, the clerk of the court, under the court's
direction, called the roll of the veniremen, and, as to each individual theretofore excused by
the court, the clerk stated, Excused by the court. The trial judge stated that those who were
so excused were excused on the ground of illness and doctors' certificates, illness in the
family, mothers of children. We regard this proceeding as substantially complying with the
rule referred to.
18. Assignment No. 16 is directed against the action of the court in overruling defendant's
objection to the admission in evidence of a certain conversation, without preliminary proof of
the names of the persons present. The conversation included an alleged admission of the
defendant relating to the charge against him. The witness testified that, in addition to himself,
the defendant and two other persons whom he named, there were present others who had
come to the scene of the homicide and whose names were unknown to the witness.
66 Nev. 286, 311 (1949) State v. Helm
ent others who had come to the scene of the homicide and whose names were unknown to the
witness. We find no error in the ruling referred to.
19, 20. Assignment No. 17 is directed against the overruling of defendant's objections to
certain questions propounded by the state to a witness who was present when the defendant
made a detailed statement relative to the homicide. The questions related to the conditions
under which the statement was madewhether voluntary or under improper influences. The
witness was asked if inducements were held out to the defendant, if any threats were made,
any promise of reward, or any force used, all of which was answered in the negative. Leading
questions are permissible which direct the attention of the witness to the subject matter. We
regard the rulings referred to as within the sound discretion of the trial judge.
21. Assignment No. 18 is directed against the sustaining by the court of objections made
by the state to certain questions propounded to defendant by his counsel for the purpose of
showing a motive for the alleged assault by the deceased on the defendant, and to support the
defendant's plea of self-defense. Defendant testified that an altercation had occurred between
himself and the deceased about the middle of March, that no threats against himself had been
made by the deceased, but that the latter cussed him. The state objected to the relating of
further details of the conversation, on the ground that they were too remote from the
homicide. The trial judge stated that he would entertain an offer of such evidence, the offer to
be made in the absence of the jury, and the defense expressed its intention to make such an
offer. We are not directed to any such subsequent offer in the record. In ruling on the subject
the trial court said: I will let you put it in in the absence of the jury, but it has no materiality
as to the form of the question or what you intend to prove as to the alleged occurrence in the
Information or in any of the testimony so far adduced at this trial, no materiality.
66 Nev. 286, 312 (1949) State v. Helm
The defense moved for a mistrial, arguing that the court had, in effect, told the jury that none
of the testimony theretofore offered on behalf of the defendant had any materiality or bearing
on the case. To which the court said: That is not the truth, and overruled the motion for a
mistrial. We do not believe the jury were misled or the defendant prejudiced by reason of this
incident.
22. Assignment No. 19 is directed against the ruling of the court denying the defendant's
motion for a new trial. Among other reasons, the defendant avers that a new trial should have
been granted for the reason that a portion of the trial was held in the absence of the defendant,
in that the instructions were settled in chambers without the presence of the defendant. In
support of this contention, defendant cites the case of Kline v. Vansickle, 47 Nev. 139, 217 P.
585, 586. It was there held that ruling upon tendered instructions and objections thereto is a
part of the trial of a case, and the trial must be in open court and all objections and exceptions
must be made there. In the case referred to, being a civil suit, the statutory provisions there
considered, in relation to instructions to the jury and exceptions thereto, are not applicable
here. N.C.L., section 11028, being section 380 of the Criminal Practice Act, reads as follows:
When any written charge has been requested and given, or refused, or given by the court of
its own motion, the question or questions contained in such charge need not be excepted to,
but the written charge, given or refused, with the endorsement 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 in like manner as if presented in a bill of exceptions.
The record contains the original instructions given by the court, as well as all of the
requested instructions, which are dealt with above. The requested instructions bear the
endorsement of the trial judge, showing that they were refused, excepting the last one. All are
certified to by the clerk of the court as instructions not given.
66 Nev. 286, 313 (1949) State v. Helm
fied to by the clerk of the court as instructions not given. Upon the opening of the
proceedings on October 1, 1948, the trial judge said: All present. Mr. Jones, here are the
instructions. The clerk will file the instructions. I changed the date all through to October 1st.
Ladies and gentlemen of the jury and the alternate juror, the State and the defense having
completed the introduction of evidence, the court will now read its instructions to you.
The judge then read his instructions to the jury. During these proceedings, no objection or
comment was made on the part of the defendant, nor was there any further request for
instructions. Under the statutory provision above quoted, we consider the foregoing as
showing, by the record, that the instructions were settled in open court, the defendant being
present.
Under the nineteenth assignment, defendant further avers that a new trial should have been
ordered because the court misdirected the jury as to matters of law and erred in decisions of
law arising during the course of the trial. These matters have been dealt with above.
Finding no prejudicial error in the record, the judgment and the order denying a new trial
in this cause are affirmed.
Horsey, C. J., being absent on account of illness, the Governor designated Hon. Wm. D.
Hatton, Judge of the Fifth Judicial District, to sit in his place.
November 3, 1949.
Per Curiam:
Rehearing denied.
(Reporter's Note: Petition for a writ of certiorari in the above case was denied by the
supreme court of the United States on April 24, 1950.)
____________
66 Nev. 314, 314 (1949) Green v. Henderson
PETE GREEN and NORMA GREEN, Husband and Wife, Et Al., Appellants, v. J.R.
HENDERSON and L. GLENN SWITZER, Copartners Doing Business Under the
Name of LAS VEGAS BUILDING MATERIALS, Respondent.
No. 3574
August 16, 1949. 208 P.2d 1058.
Findings of trial court will be sustained if there is any substantial evidence in the record supporting
them.
2. Contracts.
In action to recover value of materials and labor furnished, evidence sustained finding that contract
was on cost plus basis rather than for stipulated price.
Where trial court permitted introduction of testimony by plaintiffs as to prevailing custom in vicinity
to enter into all building contracts on cost plus basis, but custom was not pleaded, and other competent
evidence was sufficient to support finding, supreme court would assume that trial court relied on the
competent evidence.
Action by J. R. Henderson and L. Glen Switzer, copartners doing business under the name
of Las Vegas Building Materials, against Pete Green and Norma Green, husband and wife,
John Doe, Richard Roe, John Doe Company, a copartnership, and Roe Company, a
corporation for balance due for labor and materials furnished in the construction of a
building. Judgment for plaintiffs. From the judgment and an order denying new trial,
defendants appeal. Judgment and order denying new trial affirmed.
George E. Marshall, of Las Vegas, for Appellants.
G. William Coulthard and Milton W. Keefer, both on Las Vegas, for Respondents.
OPINION
The parties will be referred to as in the court below.
Plaintiffs obtained a lien foreclosure judgment for a balance due for labor and materials in
the construction of a building by plaintiffs' assignor, Paul Wagner, for defendants, at Las
Vegas, Nevada. Defendants have appealed from the judgment and from the order denying a
new trial. The sole issue, as made by the pleadings and as defined by statements of counsel to
the trial court and in the briefs to this court, was whether (a) the contract was for the
construction of the building for the cost of labor and materials plus 20%, or (b) for the
construction of the building for an agreed price of $7,000. The judgment, based upon the
court's findings, adopted the plaintiff's theory of a cost plus contract and rejected defendants'
theory of a fixed amount contract and found a balance due plaintiffs in the sum of $1,223.03,
with interest, costs and $250 attorney fee, aggregating $1,633.82, adjudged a lien upon the
property and ordered a foreclosure sale in the usual manner.
Our task is lightened by the repeated statements of both parties that the nature of the
contract was the only issue before the trial court. While appellants assert that the decision is
against law and that errors occurred in the trial, their main reliance is upon the insufficiency
of the evidence to justify the decision, and that their motion for new trial on such ground
should have been granted.
1. Respondents rely upon the well recognized rule that the findings of the trial court will
be sustained if there is any substantial evidence in the record supporting them, citing Friendly
v. Larsen, 62 Nev. 135, 133 P.2d 747, also a lien foreclosure case, which in turn cites some
fifteen decisions of this court in support thereof. Respondents also refer to the recent case of
Canepa v. Durham, 65 Nev. 42S
Durham, 65 Nev. 428, 198 P.2d 290, which again adheres to this rule. Appellants recognize
the rule but assert that there is not one scintilla of evidence to support plaintiffs' claim that
the contract was upon a cost plus formula, and rely upon the rule that if there is no evidence
to support the judgment the same may be reversed by this court.
Mr. Wagner, plaintiffs' assignor, testified that he entered into negotiations with defendants
for the construction of the building on a cost plus basis; that there was an agreement between
the parties as to the way in which Wagner was to be compensated for the construction; that
the labor and material were to be paid for and that in addition he was to get 20%; that for this
percentage he furnished a Dodge truck, two handpowered saws, a drilling table saw, a
two-sack mixer and other equipment; that he also furnished a bookkeeper for keeping the
books; that the 20% also covered state compensation insurance, public liability insurance and
Wagner's superintendence of the job and that the balance of the 20% would be the
contractor's profit. If the trial court believed the testimony of this witness, as it apparently did,
such testimony gives ample support to the findings and judgment. McNee v. McNee, 49 Nev.
90, 237 P. 534, 537. It is true that Mr. Green denied this contract, and asserted that Mr.
Wagner agreed to build the structure for $7,000. He points to Wagner's application for city
building permit and for Civilian Production Administration permit in both of which the cost
of the proposed project was recited as $7,000. The trial court apparently considered this
figure simply as an estimate, which is supported by the fact that the plans and specifications
had not been completed at the time. The record contains other evidence adduced in support of
the respective contentions of the parties, but we do not find it necessary to discuss the same.
2, 3. Appellants further assign as error the ruling of the trial court permitting the plaintiffs
to introduce evidence of the prevailing custom in the vicinity at the time to enter into all
building contracts on a cost plus basis by reason of conditions then prevailing.
time to enter into all building contracts on a cost plus basis by reason of conditions then
prevailing. It is true that no such custom is pleaded and it is also true that plaintiffs must
recover, if at all, upon the contract between their assignor and the defendants. The trial court
apparently permitted the testimony as to this custom as merely incidental and perhaps as
lending reasonableness and probability to Wagner's testimony. 25 C.J.S., Customs and
Usages, sec. 32 a, page 125, n. 11. We do not consider the assignment at greater length as,
without the evidence of custom, there was ample competent, material evidence to support the
finding, and we may assume that the trial court relied on such evidence.
The judgment and the order denying defendants' motion for new trial are affirmed with
costs.
____________
66 Nev. 317, 317 (1949) State v. Gambetta
STATE OF NEVADA, Respondent, v. EUGENE LEO
GAMBETTA, Appellant.
No. 3549
August 16, 1949. 208 P.2d 1059.
1. Criminal Law.
In murder prosecution, enlarged photographs of automobile in which state claimed deceased was
riding with defendant shortly before death, and in which body of deceased was found about 12 hours after
death, were admissible.
2. Criminal Law.
Where witness testified to having taken and enlarged photographs of automobile in which state
claimed deceased was riding with defendant shortly before death, and in which body of deceased was
found about 12 hours after death, and that enlargements were a fair, correct and true representation of
scene they purported to represent, and enlargements corroborated statements in defendant's confessions,
and of other witnesses that had seen automobile answering description of photographed automobile
leaving apartment building in which deceased had been staying, a sufficient foundation for admission of
enlargements in evidence was laid.
3. Criminal Law.
Fact that exact presence in hands of any one person of enlarged photographs of automobile in which
state claimed deceased was riding with defendant shortly before death, and in which body of
deceased was found after death, was not accounted for until photographs were
offered in evidence in murder prosecution, did not destroy admissibility of
photographs.
in which body of deceased was found after death, was not accounted for until photographs were offered
in evidence in murder prosecution, did not destroy admissibility of photographs.
4. Criminal Law.
A sufficient foundation was laid for admission in evidence in murder prosecution of enlarged
photographs of body of deceased found in defendant's hired automobile at time of defendant's arrest, and
of enlargements of photographs of body of deceased at time of post-mortem examination.
5. Criminal Law.
In murder prosecution, enlarged photographs of body of deceased found in defendant's hired
automobile at time of defendant's arrest, and enlargements of photographs of body of deceased at time of
post-mortem examination, were not so gruesome as to unduly influence, excite or prejudice jury and
therefor be inadmissible in evidence.
6. Criminal Law.
In criminal prosecution, where photographs are shown to be correct representations and give a better
and clearer understanding of relevant facts than could be obtained by testimony, their use in evidence
should be favored.
7. Criminal Law.
Generally, photographs need not be taken by a professional photographer to be admissible in criminal
prosecution, and any one who knows may testify concerning their correctness.
8. Criminal Law.
In murder prosecution, failure of scientific proof that gunshot which killed deceased came from pistol
found lying in front seat of automobile hired by defendant, and in which deceased was seen riding with
defendant shortly before death, and in which body of deceased was found at time pistol was found, did
not destroy admissibility in evidence of pistol and of cartridges in pistol.
9. Criminal Law.
In prosecution for murder, purse, shoes and hat which were found in street near apartment building in
which deceased was living, and which were identified as those worn by deceased when last seen some
hours before her death, were admissible where no purse, shoes or hat were found when deceased's body
was found, and blood stain on shoes corroborated defendant's statement that he had struck deceased with
pistol before forcing her to drive away with him in automobile in which her body was subsequently
found.
10. Criminal Law.
In murder prosecution, bloodstained brassiere of deceased containing a bullet hole, and bloodstained
shirt and trousers worn by defendant at time of his arrest, were not so gruesome as to prevent their
admission in evidence.
11. Criminal Law.
Confessions made by a defendant shortly after his arrest, which were voluntary, were admissible
against defendant in murder prosecution, although defendant was not informed before making them that
what he said might be used against him.
12. Criminal Law.
The statutory prohibition of a charge to jury relative to failure of defendant in criminal prosecution to
testify, except upon request of defendant, impliedly prohibits state's attorney from commenting on such
failure in his argument to jury. N.C.L.1929, sec. 10960.
13. Criminal Law.
In murder prosecution, statement of district attorney in closing argument to jury that case contained
no conflicting evidence and that no produced testimony was denied, was not error as being a comment
upon defendant's failure to testify prohibited by statute. N.C.L.1929, sec. 10960.
14. Homicide.
Evidence sustained conviction for murder in first degree.
15. Criminal Law.
The corpus delicti in a criminal prosecution cannot be established solely by evidence of a confession
or of an admission or of both, made by defendant on an occasion other than while appearing as a witness
in prosecution, or solely by evidence of any number of such confessions and admissions.
16. Criminal Law.
Corpus delicti may be established by circumstantial evidence.
17. Criminal Law.
In murder prosecution, evidence, aside from purported confession of defendant, was sufficient to
establish the corpus delicti.
Appeal from Second Judicial District Court, Washoe County; A.J. Maestretti, Judge.
Eugene Leo Gambetta was convicted of murder in the first degree and he appeals from
judgment and from order denying motion for a new trial. Judgment and order affirmed,
with direction.
C. Benson Tapscott, of Reno, for Appellant.
Alan Bible, Attorney General, Homer Mooney and Robert L. McDonald, Deputy Attorneys
General, Harold O. Taber, District Attorney, and Grant L. Bowen, Assistant District
Attorney, Reno, for Respondent.
OPINION
Appellant Eugene Leo Gambetta was convicted in the district court of Washoe county for
the crime of murder in the first degree and the jury imposed the death penalty. Gambetta has
appealed from the judgment and from the order denying his motion for a new trial. Before
considering his seven assignments of error a recital of the facts is necessary. These facts
appear from three separate confessions made by the defendant to three separate officers in
San Francisco immediately following his apprehension and also from certain additional,
independent and corroborative evidence adduced at the trial.
Appellant and deceased, Thelma Ribail, were married in January 1945 and lived in an
apartment in San Francisco. Following marital difficulties Thelma left appellant in March
1948, and established her residence at the Gibson Apartments in Reno with her sister Lola
LaPoint. Defendant made several trips from San Francisco to Reno in efforts to contact his
wife, and did contact her on four or more occasions, forcing her at the point of a gun to
accompany him in a car. On May 29, 1948, approximately a month and a half before the fatal
shooting, deceased, learning of the presence of defendant in Reno, attempted to leave her
apartment in a taxicab driven by one Eugene Pettipiece who had been sent by Thelma's sister
Lola for the purpose. However, as Thema was leaving the front entrance of the Gibson
Apartments in Pettipiece's taxi, appellant appeared, brandished a chrome plated, shiny
revolver, ordered Pettipiece to drive off in his cab, and stated I'll blow her guts all over the
sidewalk. Pettipiece reported the incident to Lola, who in turn reported it to the police. An
hour later defendant was arrested, and the loaded revolver was found in his car. Defendant
was fined $50 for violation of a city ordinance in connection with his possession of the gun
and he paid his fine and returned to San Francisco.
possession of the gun and he paid his fine and returned to San Francisco. On June 19 he again
returned to Reno, discovered his wife coming out of a night club with another man, followed
them to another night club and subsequently drove to her apartment house and waited there
until she and her companion arrived about 5:30 in the morning. Defendant states, * * * I
didn't kill him then. I don't know why. I was hot enough. * * * I went downtown and got
drunk and went back to kill them and the car was gone. He cached his automatic pistol in a
hedge across the street from Thelma's apartment, drove downtown, got drunk, was arrested
for colliding with another car and before being released the following morning, was served
with divorce papers. On June 23, 1948, at a meeting in the office of his wife's attorney, he
expressed bitterness toward his wife and said he should have shot her before. When his wife's
attorney suggested that it was lucky that he did not do so, appellant expressed the conviction
that no jury would convict him. He did, however, sign an appearance in the divorce action
with a waiver of time, etc., as a result of which the deceased obtained her divorce and the
restoration of her former name Thelma Ribail. Before returning to San Francisco defendant
again cached the automatic in the hedge across the street from the Gibson Apartments. On
July 8, 1948, on receiving information that appellant had again returned to Reno, deceased
and her sister Lola, with the assistance of the district attorney, filed a complaint with the
justice of the peace and again obtained a warrant for defendant's arrest. At that time the sisters
agreed that if appellant should get either of them she would throw her purse or shoes or
something belonging to her away so that if such articles were found the other would know
that Gambetta had her. Both sisters were in constant terror of the defendant.
On July 14, 1948, defendant rented a light-gray Ford sedan in San Francisco and drove to
Reno, arriving about 7:00 p.m., where he first ascertained that the pistol was still in the
hedge fully loaded.
about 7:00 p.m., where he first ascertained that the pistol was still in the hedge fully loaded.
He unsuccessfully tried to locate his wife that evening and stayed at a motel in Reno. The
following day, July 15, at 3:30 or 4:00 in the afternoon he first saw deceased driving a
Lincoln sedan with a Nevada license No. 40-998. He followed the car but lost her, and later
found the Lincoln sedan parked by her apartment. Later he drove to various clubs trying to
locate her and finally saw her coming out of a club or restaurant with another girl and a man.
He drove back to her apartment and after waiting for some time, drove off and again met
deceased and her male companion leaving another club. He drove back to the apartment,
waited till 4:30 a. m., drove downtown again, and again observed deceased and her male
companion leaving another club. He again drove back to the apartment and waited for them to
return, which they did about 5:00 a. m. Appellant approached them with his gun in his hand,
and ordered Thelma's companion to leave, which he did. An argument ensued between
appellant and deceased and he struck her between the eyes with the butt of his gunthe gun
being discharged in the process but apparently doing no other injury. Two persons heard the
shot and fixed the time at 4:55 a. m. The blow from the butt of the gun resulted in a cut one
and one-half inches long and about one-third inch deep from which blood flowed and ran into
the deceased's eyes and upon her clothes and to the street. Some drops were upon her shoes,
which were subsequently found. Appellant forced deceased to get into his car, drove north to
Fourth Street and turned east. As they approached Sutro Street deceased stated that she would
jump out of the car and appellant said, If you jump I'll shoot you. She started to jump out
and he shot her. He stopped as quickly as he could, backed the car up to where she was,
ascertained that she was dead, picked her up and put her on the back seat of his car, turned
around and drove around Reno for about an hour and a half, called again at her apartment
for the purpose, as he stated later, of killing the deceased's sister Lola.
hour and a half, called again at her apartment for the purpose, as he stated later, of killing the
deceased's sister Lola. He was unable to gain entrance, drove south from Reno, turned west
on what is known as the Mt. Rose road and stopped in the neighborhood of the Callahan
ranch cutoff and transferred the body to the trunk compartment of the car. He then drove to
Highway 50 and to San Francisco by way of Placerville, Sacramento and the Golden Gate
Bridge and parked on the Great Highway facing the ocean in the vicinity of the Park
Commissary where he was arrested about 5:00 p. m. by two officers of the San Francisco
Police Department. These officers had received information that Gambetta, in a car bearing
California license No. 3L1444, was wanted for investigation of kidnap and murder and that
he was armed and dangerous. Defendant readily admitted his name and that deceased's body
was in the trunk of the car. The .32 caliber automatic pistol with six cartridges was found on
the front seat. During the course of the afternoon appellant frankly made three statements
outlining most of the facts substantially as above recited. On July 20, 1948, the district
attorney of Washoe county filed an information charging the defendant with murder. He
waived his preliminary examination and was arraigned on the same day and entered a plea of
not guilty. His trial commenced August 9, 1948, at which time facts as above recited were
submitted to the jury. The verdict, finding him guilty of murder of the first degree and fixing
his punishment at death was recorded August 13, 1948.
Appellant's first assignment of error arises out of the admission in evidence over his
objection of state's Exhibits Nos. 5, 6, 7, 8, 9, 3 and 1. Nos. 5, 6 and 7 were enlarged
photographs of the car parked on the Great Highway in San Francisco and in which defendant
was sitting at the time of his arrest. Nos. 8 and 9 were enlarged photographs of deceased's
body in the trunk compartment. Nos. 3 and 1 were enlarged photographs of deceased's body
at the time of the post-mortem examination in San Francisco.
of deceased's body at the time of the post-mortem examination in San Francisco.
Appellant's objections to the admission of these exhibits were urged separately as the
exhibits were respectively offered. The several objections were not based on the same
grounds and did not as a matter of fact embrace all of the grounds now urged by appellant.
For the purpose of this opinion, however, we are willing to assume that all of the matters now
urged by appellant as error were embraced within the scope of the objections made and the
exceptions taken. Appellant urges that no proper foundation was laid for the introduction for
any of these exhibits, that there was no showing as to who took or enlarged the photographs,
or that the photographs, after their enlargement, or the other exhibits, had been continuously
in the possession of any individual, that the exhibits were immaterial, that the photographs
were merely cumulative, and that all of the exhibits tended to prejudice and inflame the jury.
1

1, 2. State's Exhibit No. 5 is an enlargement of a front view photograph of the Ford sedan
showing California license No. 3L1444 as the car was parked on the Great Highway in San
Francisco. No. 6 is an enlargement of a photograph of the rear view of the same car, also
showing the license number, and No. 7 is an enlargement of a side-view photograph of the
same car. In the case of these photographs, as in the case of all of the other photographs
admitted, a witness testified that he had taken the picture and that it was a fair, correct and
true representation of the scene it purported to represent, that the photograph was taken
by the witness, a San Francisco police photographer, and enlarged by him.
____________________

1
Under the provisions of an act to provide for and to regulate bills of exceptions in criminal cases, etc., stats.
1947, p. 293, chap. 87, a bill of exceptions may consist of a transcript of the proceedings properly certified,
together with all other matters, exhibits, motions, papers, or orders required to be incorporated in a bill of
exceptions * * *. Neither the appellant nor the state has seen fit to have the exhibits admitted during the trial
certified to this court, or to seek an order of this court requiring the exhibits to be sent up. As all of the exhibits
are fully described in the testimony and discussed at length in the briefs of counsel, we deal with the record as
we find it.
true representation of the scene it purported to represent, that the photograph was taken by the
witness, a San Francisco police photographer, and enlarged by him. Nos. 5, 6 and 7 identified
the car in which the state claimed deceased was riding with appellant shortly before the
former's death and in which her body was found about twelve hours after her death. The
photographs corroborated the statements contained in the three confessions made by
appellant, and also corroborated the statement of another state's witness who testified to
seeing a light-gray sedan leave the Gibson Apartments in Reno, drive north to Fourth Street
and there turn east. The photographs were undoubtedly relevant and material, a sufficient
foundation was laid for their admission, and the fact that their exact presence in the hands of
any one person was not accounted for until they were offered in evidence did not, in the
absence of any adverse showing in the record, destroy their admissibility. 22 C.J.S., Criminal
Law, sec. 712, p. 1207; Hill v. State, 58 Nev. 28, 68 P.2d 569; State v. Lewis, 50 Nev. 212,
230, 255 P. 1002; State v. Salgado, 38 Nev. 64, 76, 145 P. 919, 150 P. 764.
3-5. Nos. 8 and 9 were enlarged photographs of the body of deceased found in the trunk of
defendant's hired Ford sedan at the time of his arrest in San Francisco. A foundation was laid
as in the case of the other photographs. These two photographs corroborated the testimony of
the officers, served to identify the body, corroborated appellant's confessions and showed that
the hat and shoes were missing from the body. Nos. 3 and 1 are enlarged photographs of
deceased's body at the time of the post-mortem examination. They were both identified by the
San Francisco officer who took and enlarged the photographs. No. 3 is a view taken from the
front and above the body. No. 1 was admitted after deceased's sister identified the photograph
as that of deceased. Both photographs supported the testimony of the doctor who performed
the post-mortem examination. No. 3 showed the location, nature and extent of the wound
on deceased's forehead caused by a blow from appellant's pistol some time prior to the
fatal shooting.
showed the location, nature and extent of the wound on deceased's forehead caused by a blow
from appellant's pistol some time prior to the fatal shooting. Appellant concedes that No. 1
served to identify the body. The photographs were all admissible for the purposes discussed
and in all cases a sufficient foundation was laid. Nothing in the record indicates that the
photographs were so gruesome as unduly to inflame, excite or prejudice the jury.
6, 7. General rules as to the admissibility of photographic evidence have been so well
established not only by the opinions of many courts of last resort and by the text-writers but
also by the decisions of this court that a discussion of such rules with application to the facts
of this case is not warranted. State v. Roberts, 28 Nev. 350, 82 P. 100, 103; State v. Holt, 47
Nev. 233, 219 P. 557. In the former case, in answer to the claim that the photographs were
gruesome and would inflame and prejudice the jury, to which argument appellant devotes
considerable time in this case, this court, speaking through Talbot, J., says with reference to
the photographs admitted in evidence:
Of the three admitted, one shows the face of the deceased in the repose of death, and in it
Conductor La Point was able to recognize the features of the man that was picked up at the
end of the ties near Zola in the morning and taken to Winnemucca in the caboose on his train,
and the others showed the entrances of the bullets on the arm and leg, and were illustrative
and instructive in connection with the testimony of the doctor and other witnesses. If their
tendency was to give a more vivid realization of the wounds than a verbal description, they
were less gruesome than an exhibition of the man's injuries to the jury in his real flesh and
bone, which would have been permissible, if practicable. They had been taken the day after
Welsh died, and were not especially repulsive, and there was testimony to the correctness. We
are cited to some extreme cases where photographs were rejected on the grounds that
witnesses had described what they would show, or that they would inflame and prejudice
the jurydoctrines that we are not able to sanction, and which are not supported by the
weight of authority.
were rejected on the grounds that witnesses had described what they would show, or that they
would inflame and prejudice the jurydoctrines that we are not able to sanction, and which
are not supported by the weight of authority. If juries cannot be intrusted with the pertinent
facts for which litigants and offenders are responsible, however appalling they may be, and
with the most accurate, instructive, and convincing evidence of those facts, it is time to
abolish the jury system. Photography, engraving, and the arts of picture making are important
factors in our civilization, and the courts in their search for truth should not be averse to
accepting the benefits they bring. A glimpse at a photograph may give a more definite and
correct idea of a building or of a person's features than the most minute and detailed
testimony. A child may learn more regarding the appearance of an animal it never saw by the
sight of its picture than by listening to a lecture or reading a volume of description. When
photographs are shown to be correct representations, and give a better and clearer
understanding of relevant facts, it would seem on reason and principle that their use as
evidence should be favored. It is generally held that they need not be taken by a professional
photographer, and that any one who knows may testify regarding their correctness.
Part of the foregoing is quoted in the Holt case where this court, speaking through
Coleman, J., emphasizes the fact that in this age of general education, wherein people are
trained to think, there is little danger that the minds of the jurors will be influenced merely
because a bloody garment or similar exhibit is introduced in evidence and exhibited to them.
Appellant relies strongly on State v. Miller, 43 Or. 325, 74 P. 658, 659, in support of his
contention that it was error to admit the photographs of the body of deceased. It is true that in
that case the introduction of the photographs was held to be error because they presented a
gruesome spectacle of a disfigured and mangled corpse, very well calculated to arouse
indignation with the jury."
mangled corpse, very well calculated to arouse indignation with the jury. However, the
testimony adduced to support the admissibility of the photographs indicated, also, that the
pictures were not faithful reproductions and were partially inaccurate. In a later case the
Oregon Supreme Court cited, with apparent approval, severe criticism of the Miller case as
expressed by Wigmore and other text writers. State v. Weston, 155 Or. 556, 64 P.2d 536, 108
A.L.R. 1402.
8. Defendant's second assignment of error urges that the admission of Exhibits 10 and 12
over appellant's objection was error. No. 10 was a .32 caliber German automatic pistol and
No. 12 comprised the six loaded cartridges that were in the pistol when it was recovered by
the San Francisco police. The pistol was found lying in the front seat of the car identified by
the testimony of the officers, the confession of the appellant, and by the three photographs of
the car. Appellant asserts that the state failed to establish the whereabouts of the revolver
and cartridges from the time of their acquisition [by the police] until introduced in evidence *
* *, that it is essentially prerequisite to the introduction of exhibits of this nature in evidence
that their continuous possession be shown. Otherwise, there can be no assurance that the
exhibit has not been subjected to tampering, distortion or other change. On the contrary the
record shows that the officers identified the gun and identified the cartridges they had
removed from the gun from markings made thereon. They testified that these items were in
the same condition at the time of the trial as when removed from the car. They were in the
constant possession of either the San Francisco officers or the Reno officers. The defendant
identified the gun as the one used by him to shoot the deceased. Of the six cartridges removed
one was in the chamber and five in the magazine. The capacity of the pistol was eight
cartridges. One was accidently discharged when appellant struck the deceased on the head
with the butt of the pistol, the other was the fatal shot. Failure of scientific proof that the
shot that killed deceased came from this pistol did not destroy the admissibility of these
exhibits.
proof that the shot that killed deceased came from this pistol did not destroy the admissibility
of these exhibits. Their materiality and relevancy are apparent. See State v. Lewis, 50 Nev.
212, 255 P. 1002; State v. Salgado, 38 Nev. 64, 145 P. 919, 150 P. 764. As to the
admissibility of the pistol and the shells, appellant relies on State v. Crawford, 60 Utah 6, 206
P. 717. But in that case gun and shells were held improperly admitted in evidence because
they were found over six weeks after the crime charged and were not connected with the
defendant other than by their discovery under a dresser in a room occupied by the defendant
and another person. The defendant denied ownership of the weapon. Connecting facts so
prominently existing in the present case were almost entirely lacking in the Crawford case.
Appellant's contentions on this assignment must be considered as dealing with the weight of
the evidence rather than with the admissibility of the gun and shells. State v. Salgado, supra;
State v. Lewis, supra; State v. Gee Jon, 46 Nev. 418, 211 P. 676, 217 P. 587, 30 A.L.R. 1443.
9. Appellant's third specification of error concerns the admission of Exhibits 13, 14 and
15, being respectively the purse, shoes and hat found in the street near the Gibson Apartments
in Reno. We have heretofore mentioned the state of terror of the deceased and her sister and
the agreement made by them for disposition of some article where it could be found in the
event of some hostile act on the part of appellant. The articles were identified as those worn
by the deceased when last seen alive some hours before her death. The photographs of her
body in the trunk of the car showed the absence of these items. They were properly identified
and connected up and were properly admitted. The bloodstains on the shoes corroborated the
defendant's statement as to his striking the deceased on the head with the pistol and as to the
blood that flowed from this wound. While their weight as evidence might be subject to attack,
their admissibility is clear.
10. Appellant's fourth assignment asserts error in the admission of the state's Exhibits 4,
17 and 1S, being respectively, the deceased's bloodstained brassiere with a bullet hole
through it, and the shirt and trousers worn by defendant at the time of his arrest and
which also bore bloodstains.
the admission of the state's Exhibits 4, 17 and 18, being respectively, the deceased's
bloodstained brassiere with a bullet hole through it, and the shirt and trousers worn by
defendant at the time of his arrest and which also bore bloodstains. The brassiere was
identified by the physician who performed the autopsy as the one removed from deceased's
body. If indicated the point of the exit of the bullet. The blood on the brassiere was of the
same type as that of the deceased and of the same type as that found on the shirt and trousers
of the defendant and on the street where deceased was first wounded by the blow on the head.
The testimony showed that these items were in the same condition at the time of the trial as
when they were recovered. The shirt and trousers were the ones worn by appellant at the time
of his arrest and at the time of the events preceding it. There was nothing so gruesome in any
of these three exhibits to prevent their submission to the jury.
11. Specification No. 5 asserts error in the admission of evidence as to three separate
confessions made by appellant. The first was to Officer Burke of the San Francisco police
force immediately following defendant's arrest near the ocean beach at San Francisco. The
second was made to Officer Murray of the same department while enroute in the police car
from the beach to the city hall in San Francisco. The third was made to an inspector of the
same department and to other police officers at the city hall some two hours after the arrest. It
is asserted with reference to each of these confessions that no proper foundation was laid in
that the defendant was not informed on each occasion that what he said might be used against
him. The record shows that in connection with the statements made by appellant (the first two
were narrative in form and the third was by way of question and answer) no force or threats of
any kind were used nor was any promise or offer of reward of any kind made or any
compulsion of any sort used. All statements made by the appellant were made voluntarily and
he appeared to be very willing to talk.
Appellant, in this assignment of error, relies entirely upon the absence from the record of any
showing that appellant was advised that it was unnecessary for him to make a statement and
that anything he said might be used against him. The law in this state, however, is contrary to
his contention. State v. Mircovich, 35 Nev. 485, 488, 130 P. 765, 766. The precise point was
there raised and this court said:
It is contended that the court erred in admitting certain statements and admissions in the
nature of confession made by defendant to certain officers in Nye county shortly after the
assault and while he was in custody. The proof shows that these statements were made
voluntarily by the defendant, and without the use of force, threats, inducements, or promises,
or hope of reward; but there is no showing that, previous to making such statements, the
officers having defendant in custody informed him that, if he made any statements, they
might be used against him. This assignment of error is without merit, as there is no statute in
this state, as there is in a few states, forbidding the admission of a confession made by a
defendant in custody, unless it appears that he was warned that what he should say might be
used against him. Cyc. Vol. 12, p. 463, treating this question, says: The fact that a voluntary
confession is made without the accused having been cautioned or warned that it might be
used against him does not render it incompetent, unless a statute invalidates a confession
made where the accused is not first cautioned. In Texas, by statute, a confession made by a
prisoner while in custody is inadmissible, unless he was warned that what he should say
might be used against him; and there are similar provisions in other states. It is not the duty of
a police officer, in the absence of a statute, to caution a prisoner as to the consequences of
making a statement, if the statement is voluntary, but merely to refrain from inducing him to
make a statement.'
In view of the foregoing, citation of authority from other states is unnecessary, but we
may note that our examination of other authorities indicates that the rule thus expressed
in the Mircovich case is supported by the great weight of authority.
other states is unnecessary, but we may note that our examination of other authorities
indicates that the rule thus expressed in the Mircovich case is supported by the great weight
of authority.
Appellant's sixth specification cites as error certain remarks of the district attorney in his
closing argument to the jury. The argument attacked is as followsthe italicized portion
being claimed to be a violation of our statute prohibiting a special instruction relative to a
defendant's failure to testify:
2

Now, in a way, I like circumstantial cases. If I had five eye witnesses at the intersection of
Island Avenue and Virginia Street, and I could arrange for an automobile collision, I might
get five different versions of that automobile collision. One person would describe how the
car came into the intersection, and how the cars collided, differently from the next, and so on
down the line, but fortunately in this case there isn't any conflicting testimony, absolutely no
conflict in the evidence, nor is there any denial of any of the testimony that has been
produced here. It all stands uncontradicted and undenied. Everything that has been produced
here is an established fact.
12, 13. It should first be noted that we have heretofore held that the express prohibition of
a charge to a jury relative to the failure of the defendant to testify (with the exception noted)
impliedly prohibits the state's attorney from commenting on such failure in his argument to
the jury. State v. Clarke, 48 Nev. 134, 228 P. 582. In that case, however, as well as in State v.
Harrington, 12 Nev. 125, quoting with approval from the opinion in Clinton v. State, 56 Fla.
57, 47 So. 389, statements like the above were held not to violate the statutory prohibition.
____________________

2
No instruction shall be given relative to the failure of the person charged with the commission of crime or
offense to testify, except, upon the request of the person so charged, the court shall instruct the jury that, in
accordance with a right guaranteed by the constitution, no person can be compelled, in a criminal action, to be a
witness against himself. N.C.L., sec. 10960.
tory prohibition. See, also, State v. Williams, 35 Nev. 276, 129 P. 317; State v. Tecope, 54
Nev. 308, 15 P.2d 677. In view of these holdings it becomes unnecessary to discuss the
authorities from other jurisdictions advanced by appellant. In virtually all of such cases,
however, the impropriety of such statements arose by reason of the special circumstances of
the case whereunder the remarks could not be considered other than a direct reference, or a
reference by innuendo, to the defendant's failure to take the stand.
14. Appellant's seventh and last assignment of error is the trial court's denial of defendant's
motion for new trial. This assignment embraces the errors asserted under assignments 1 to 6,
inclusive, and in addition that the verdict is not supported by the evidence and is contrary to
law and to instructions given the jury, particularly instruction No. 18. As to the asserted
insufficiency of the evidence, we may repeat what this court said in State v. White, 52 Nev.
235, 285 P. 503, 507: The facts established were of sufficient probative force to support the
verdict, and consequently our inquiry can go no further as to the ground urged. Nothing is
better settled by the decisions of this state than that this court is without jurisdiction to disturb
a verdict in a criminal case on the ground that it is contrary to the evidence when there is
substantial evidence to support it. The corpus delicti may be established by circumstantial
evidence. State v. Cardelli, 19 Nev. 319, 10 P. 433.
15. Appellant concedes that instruction 18 was proper. Indeed, it was given at his request.
It reads as follows: The corpus delicti in a criminal action cannot lawfully be established
solely by evidence of a confession, or of an admission, or of both, made by the defendant on
an occasion or occasions other than while appearing as a witness in this trial or solely by
evidence of any number of such confessions and admissions.
16, 17. Appellant insists, however, that the verdict is contrary to this instruction in that the
corpus delicti was not proved other than through the confessions of the defendant.
was not proved other than through the confessions of the defendant. This contention attempts
to find support in a carefully prepared treatise on the subject of proof of the corpus delicti,
and while we commend counsel for his zeal, it adds up to nothing more than the contention
that corroboration must be found elsewhere in the record. As we have seen from State v.
White, supra, the corpus delicti may be established by circumstantial evidence, and we are
unable to accept appellant's contention that the evidence offered by the state in the case at
bar, aside from the purported confession, is insufficient to prove the corpus delicti. The
presence of deceased's body in the trunk of defendant's car, the proof of a death wound that
could not have been accounted for by accident or suicide, the testimony of the physician
performing the autopsy, the exhibits received in evidence and the other facts hereinabove
recited, constitute ample proof of the corpus delicti independently of, as well as in
corroboration of, the voluntary statements of the defendant. Although most authorities have
been careful to avoid a definite rule as to the extent of proof required for this purpose
independently of the confession of the defendant, we have no hesitancy in finding it ample in
the instant case. In re Kelly, 28 Nev. 491, 83 P. 223; State v. Plunkett, 62 Nev. 258, 265, 149
P.2d 101, 142 P.2d 893; State v. Tramner, 39 Nev. 142, 154 P. 80. We find it unnecessary to
discuss the numerous cases discussed by appellant. They either frankly concede the rule as
followed in this state, as discussed in the Kelly case, or are readily distinguishable from the
instant case. Appellant claims that there is an entire lack of showing with reference to the
movements or activities of the defendant between 5:00 p. m. on July 14 to the same hour on
July 16 when he was arrested in San Francisco and that no evidence either direct or indirect
indicated his presence in Washoe County, Nevada, during this crucial period. Appellant
suggests many things that could or might have been proved to supply this lackwitnesses
who saw defendant in Washoe county during this period, defendant's staying at an auto
court in Reno the evening of July 14, the passing of the Nevada-California checking
station by defendant's car on the early morning of July 16, speedometer readings on
defendant's car showing the trip from San Francisco to Reno and return, fingerprints on
the car or the gun, testimony of such an unusual occurrence as a woman leaping from a
speeding automobile, accompanied by a pistol shot, at 6:00 in the morning when
considerable traffic might be expected, bloodstains on Fourth Street where the deceased
was shot, ballistic tests of the bullet that passed through deceased's body, proof that the
pistol had been recently fired, etc.
witnesses who saw defendant in Washoe county during this period, defendant's staying at an
auto court in Reno the evening of July 14, the passing of the Nevada-California checking
station by defendant's car on the early morning of July 16, speedometer readings on
defendant's car showing the trip from San Francisco to Reno and return, fingerprints on the
car or the gun, testimony of such an unusual occurrence as a woman leaping from a speeding
automobile, accompanied by a pistol shot, at 6:00 in the morning when considerable traffic
might be expected, bloodstains on Fourth Street where the deceased was shot, ballistic tests
of the bullet that passed through deceased's body, proof that the pistol had been recently fired,
etc. But without proof of these things the jury, under a proper instruction of the court,
apparently found the evidence sufficient. First we may note that the question of venue has not
been raised as an assignment of error. We may next observe that while the testimony, aliunde
the confessions, is entirely circumstantial, there were numerous items that the jury had the
opportunity and the right to consider. Although the companion of the deceased could not
identify the man by whom he was accosted at the time the witness was returning deceased to
her apartment in Reno at 5:00 a. m. the day of the shooting, his story of the occurrence most
accurately corroborates the statement of the meeting as made by the defendant. Defendant's
identification of the Lincoln automobile and the exact Nevada license number thereof is a
further corroboration. It is hardly conceivable that he could have known the license number
unless he had seen and remembered it. He testified to his accuracy in remembering items of
that kind. The wound on deceased's forehead and the description thereof by the autopsy
physician, the hearing by two witnesses of the shot that accidently resulted from this blow,
the blood on the deceased's shoes and on the sidewalk where this blow was struck, the
testimony by the witness who saw a gray sedan parked in front of the Gibson Apartments
and who heard an argument between a man and woman, followed by the departure of the
gray sedan north to Fourth Street, and thence east, the number of hours that had elapsed
between the death of deceased and the discovery of her body as estimated by the
physician, the last known presence of the deceased in Reno and the discovery of her body
twelve hours later in the trunk of defendant's car in San Francisco, the prior threats of
defendant against the life of the deceased, the deadly fear in which deceased and her
sister held defendant by reason of these threats and by reason of his prior relations with
her on his several trips to Renoall of these things, besides other matters in the record,
were apparently considered by the jury.
in front of the Gibson Apartments and who heard an argument between a man and woman,
followed by the departure of the gray sedan north to Fourth Street, and thence east, the
number of hours that had elapsed between the death of deceased and the discovery of her
body as estimated by the physician, the last known presence of the deceased in Reno and the
discovery of her body twelve hours later in the trunk of defendant's car in San Francisco, the
prior threats of defendant against the life of the deceased, the deadly fear in which deceased
and her sister held defendant by reason of these threats and by reason of his prior relations
with her on his several trips to Renoall of these things, besides other matters in the record,
were apparently considered by the jury. Every one of these detached items fitted in
completely with the defendant's confessions.
This court has often referred to the provisions of N.C.L., sec. 11266, which reads as
follows:
No judgment 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.
We have made a most careful examination of the entire record and of all of the
assignments of error and of the briefs and oral arguments of counsel, and we find no
prejudicial error.
The judgment and the order denying a new trial are hereby affirmed, and the district court
is directed to make the proper order for the carrying into effect by the warden of the state
prison of the judgment rendered.
September 26, 1949.
Per Curiam:
Rehearing denied.
____________
66 Nev. 337, 337 (1949) Lux v. Lux
DORA LEVINE LUX, Appellant, v. ABRAHAM
LUX, Respondent.
No. 3589
September 29, 1949. 210 P.2d 212.
An appeal is perfected by giving a notice of appeal and filing undertaking on appeal within five days
thereafter. N.C.L. 1931-1941 Supp., secs. 9385.61, 9385.66.
2. Divorce.
Supreme court could not order allowances to enable appellant to prosecute her appeal from judgment
granting her husband a divorce, and from order denying her a new trial, until appeal had been perfected
by giving notice of appeal and filing undertaking on appeal within five days thereafter. N.C.L. 1931-1941
Supp., secs. 9385.61, 9385.66.
3. Motions.
The filing of a motion to strike a motion, or what amounts to a motion, is bad practice.
Appeal from Second Judicial District Court, Washoe County; A.J. Maestretti, Judge.
Suit for divorce by Dora Levine Lux against Abraham Lux, wherein the defendant was
awarded a divorce and plaintiff appealed from the judgment and from order denying her
motion for new trial. On plaintiff's motion for allowances to allow her to prosecute her
appeal. Motion denied.
Douglas A. Busey, of Reno, and Clark J. Guild, Jr., of Carson City, for Appellant.
Cantwell, Loomis & Anglim, of Reno, for Respondent.
66 Nev. 337, 338 (1949) Lux v. Lux
OPINION
1, 2. This is a motion for allowances by the appellant wife in order to enable her to
prosecute her appeal from a judgment of the lower court entered June 20, 1949, decreeing a
divorce to respondent, and from an order entered on the same date denying appellant's motion
for a new trial. Appellant filed her notice of appeal in the district court on July 12, 1949, but
has filed no undertaking on appeal. In this state an appeal is perfected by giving a notice of
appeal and filing undertaking on appeal within five days thereafter. N.C.L., secs. 9385.61 and
9385.66. Lamb v. Lamb, 55 Nev. 437, 38 P.2d 659. Hence no appeal has been perfected in
this case. Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317. This court is without jurisdiction to
order allowances until an appeal has been perfected and the motion must accordingly be
denied. Cunningham v. Cunningham (on first motion for allowances), 60 Nev. 191, 102 P.2d
94, 105 P.2d 398.
3. Several other matters were discussed by counsel in the oral presentation. In view of the
foregoing it is unnecessary to pass on any of them. We may say, however, that the argument
was a classic example of the confusion that results from the bad practice of attempt to
interpose a motion to strike a motion. Appellant was ready to present her motion for
allowances. Respondent desired first to present his motion to strike appellant's motion.
Appellant then insisted on her right to proceed with a showing that such practice had been
condemned by this court and should not be countenanced. Hence, three matters were before
the court and it was virtually impossible to tell at any given moment to which of the three
counsel were addressing their argument. This court said in Lamb v. Lamb, supra: We have
repeatedly held that it is bad practice to file a motion to strike a motion, or what amounts to a
motion (Orleans Hornsilver Min. Co. v. Le Champ D'Or French Gold Min. Co., 52 Nev. S5
66 Nev. 337, 339 (1949) Lux v. Lux
Hornsilver Min. Co. v. Le Champ D'Or French Gold Min. Co., 52 Nev. 85, 280 P. 887),
hence the motion to strike will be stricken, and we will dispose of the application on the
objection made thereto, namely, as to the jurisdiction of the court to hear the application and
the matter of allowances.
Under the situation above described we find in the record a group of papers without
support, basis or foundation. They are all hereby stricken from the record and the motion for
allowances is denied.
Horsey, C. J., and Wines, District Judge, concur.
Eather, J., being absent, the Governor designated Honorable Taylor H. Wines, Judge of the
Fourth Judicial District Court, to sit in his place.
____________
66 Nev. 339, 339 (1949) Leggett v. Olson
SIDNEY LEGGETT and FREDA LEGGETT, RESPONDENTS, v. GUSTAV OLSON and
ETHEL OLSON, Appellants.
No. 3556
October 24, 1949. 210 P.2d 648.
1. Boundaries.
Where common grantor of adjoining parcels established dividing line which was agreed to
irrespective of metes and bounds survey, and which was accepted as common boundary between
respective grantees for many years, and grantees of the one parcel made valuable improvements with
reference to the established line with knowledge and acquiescence of the grantees of the other parcel, the
successors in interest to the other parcel were estopped from questioning the established line as true line.
Appeal from Second Judicial District Court, Washoe County; Taylor H. Wines, Judge
presiding.
Action by Sidney Leggett and Freda Leggett against Gustav Olson and Ethel Olson,
involving a boundary dispute.
dispute. Judgment for plaintiffs, and defendants appeal. Reversed.
Kearney & Adams, of Reno, for Appellants.
Leslie A. Leggett, of Reno, for Respondents.
OPINION
By the Court, Guild, District Judge:
Sidney Leggett and Freda Leggett brought an action in the Second judicial district court of
the State of Nevada, in and for the county of Washoe against Gustav Olson and Ethel Olson,
claiming to be the owners of that certain piece or parcel of land, lying and being in the city of
Reno, Washoe County, Nevada, and described as follows:
Beginning at the NE cor. of property, being the SE cor. of Threlkel Lot, a pipe in place on
east line of sec. 12, whence the NE cor. of said sec. 12, T. 19 N., R. 19 E., M. D. B. & M. a
pipe in concrete, bears N O deg. 10 W, 193.3 feet; running thence along east line of said sec.
12, S O deg. 10 E. 146.70 feet to a pipe in place heretofore set at the intersection with
originally surveyed north line of State Highway; thence along said north line, more or less, N.
81 deg. 42 W. 73.90 feet to present concrete highway monument; thence N. 77 deg. 22 W.
53.0 feet to a similar monument; thence N. 80 deg. 38 W. 116.55 feet to approximate
original SW cor. of this parcel; thence N. 1 deg. 39 W. 103.7 feet to NW cor. of same, a
point between face of Threlkel fence and concrete base of Olson iron fence and thence N. 89
deg. 34 E. 242.40 feet to the place of beginning, being situated in Lot 1 of said sec. 12.
The defendants in the action set up two separate defenses, that of adverse possession and
estoppel for the following described tract of land:
All of the lands lying west of a certain fence line extending northerly and southerly and
terminating between the north boundary and the south boundary of the area described in
plaintiffs' complaint and more particularly being a fence the NE corner of which lies 234.9
feet south S9 34{ W. of a point on the east line of sec. 12, T. 19 N., R. 19 E., M.D.B. & M.,
the north boundary and the south boundary of the area described in plaintiffs' complaint and
more particularly being a fence the NE corner of which lies 234.9 feet south 89 34 W. of a
point on the east line of sec. 12, T. 19 N., R. 19 E., M.D.B. & M., 193.3 feet south of the NE
corner of said sec. 12, and the SE corner of which fence lies 240.9 feet south 89 34 W. of a
point on the east line of section 12., T. 19 N., R. 19 E., M.D.B. & M., 297 feet south of the
NE corner of said section 12; the said fence line is further described as being situated between
the north boundary of U.S. Highway No. 40 and a line extending south 89 34 W. from a
point on the east boundary of section 12, T. 19 N., R. 19 E., M.D.B & M., situated 193.3 feet
south of the NE corner of said section 12.
The controversy is over a triangular piece of land lying to the west of a concrete footing
and wire fence, which concrete footing and wire fence has a course of N. 2 47, E. 103.84
feet to the NW corner of the lot, from the SE corner on the U. S. Highway 40 and the
Westerly boundary running 1 39 W. 103.70 feet, making a strip of land running from no
width to 8.04 feet at the north end.
The trial court gave judgment for plaintiffs, the respondents here, from which judgment
the defendants, appellants, appeal.
The salient facts and testimony are briefly as follows: In September 1926, Julius Redelius
and his wife Ethel Ione Bell Redelius, now Olson, were divorced in the Second judicial
district court of the State of Nevada, in and for Washoe county and at the time of said divorce
they were the owners of a tract of land of approximately three and a half acres abutting the
State highway which runs easterly and westerly between Reno and Sparks; that this tract of
land is crossed at right angles by the Sullivan-Kelly Ditch. To the east of the ditch Redelius
and his wife had constructed a residence. Mrs. Redelius was awarded the tract of land in
question and thereafter Redelius and his wife, Ethel, agreed that there were unpaid
community obligations; that Ethel, his wife, quitclaim to Redelius the property awarded to
her by the divorce decree and that he would encumber the portion of the parcel on which
the residence had been constructed after setting off the same from the remainder of the
tract.
Redelius and his wife, Ethel, agreed that there were unpaid community obligations; that
Ethel, his wife, quitclaim to Redelius the property awarded to her by the divorce decree and
that he would encumber the portion of the parcel on which the residence had been constructed
after setting off the same from the remainder of the tract. He would pay the obligations and
reconvey to Ethel, subject to the mortgage, the area set off by him for the use of the residence.
The plaintiffs, respondents here, subsequently acquired the remainder of the tract to the
east of the residence parcel and the controversy arises by reason of a dispute as to the proper
boundary between these two parcels.
On the 11th of April, 1927, Redelius mortgaged to M. E. Cafferata of the city of Reno, the
premises known as the residential property and on the 14th of April, 1927, Julius Redelius
deeded to Ethel Ione Bell Olson the tract of land upon which the residence is located, being
approximately 103.7 feet on the north line of the right-of-way of the State highway leading
between Reno and Sparks and westerly along the north line of said right-of-way, a distance of
86.8 feet, thence north, a distance of 97 feet; thence east a distance of 86.5 feet to the point of
beginning.
Prior to the deed from Redelius to his former wife, Mrs. Olson, and prior to the giving of
the mortgage from Redelius to Cafferata, and prior to the conveyance of Redelius of the
remaining portion (exclusive of the residential portion) to Cafferata and Granata, Redelius
hired a surveyor to survey the tract and the surveyor set the survey stakes by placing a pin on
the north of the property and the corner of the rubble stone pillar on the south of the property.
That is to say, the line established by Redelius was the line north and south from the southeast
corner of the rubble stone fence to the pin established by the surveyor to the north.
It appears from the testimony and the exhibits that the description in the conveyances was
by metes and bounds and the difference arises as stated above in the triangular piece of
land above described, being as staked off and marked off by the surveyor and Redelius, a
difference of S.04 feet on the north end, tapering down to nothing on the southeast
corner.
bounds and the difference arises as stated above in the triangular piece of land above
described, being as staked off and marked off by the surveyor and Redelius, a difference of
8.04 feet on the north end, tapering down to nothing on the southeast corner.
The testimony is further upon the part of Mr. Redelius that in laying out the residence
parcel he used the middle of the ditch above described as the west boundary. The south
boundary was along the highway where a rubble stone fence had been built.
The east boundary which is the disputed parcel in this action, was then formed by a line
between the rubble stone pillar on the east end of the rubble fence and a pin placed on the
north boundary of the property at the point which would as nearly as possible square up the
parcel.
The two points as marked (where the fence was later built), were pointed out by Redelius
to Cafferata prior to the mortgage which Cafferata took upon the residential property and
prior to the time that Cafferata and Granata took a deed from Redelius to the remaining
property; and that Redelius had marked off this line by taking certain measurements with a
steel tape and afterwards driving stakes at each end of the northerly-southerly line.
It is also in evidence that all of the parties knew and agreed to the boundary so marked and
established by Redelius. Not any of the parties checked the legal descriptions with the actual
boundary line established by Redelius.
Thereafter Mr. Olson hired one Bevilacqua to construct a fence and before doing so had
Mr. Redelius show him the line and the stake on the north side and the rubble stone pillar on
the south side, which had long before been pointed out both to Mrs. Olson and Mr. Cafferata.
Redelius' testimony is to the effect further that Mr. Cafferata was to buy what was east of
the line so marked off and that the line upon which the fence was later built was the
agreed west line of Cafferata's land and that when the mortgage was executed to Mr.
Cafferata it was understood that Cafferata would take the rest of the land east regardless
of what land it was, i.e., so many feet east of the ditch.
off and that the line upon which the fence was later built was the agreed west line of
Cafferata's land and that when the mortgage was executed to Mr. Cafferata it was understood
that Cafferata would take the rest of the land east regardless of what land it was, i.e., so many
feet east of the ditch.
The physical boundaries were pointed out to Mrs. Olson before Redelius deeded the
residential property to her. Redelius testified:
Q. All parties knew and you understood at the time what the agreed boundary line was?
A. Yes, that is right.
Redelius further testified:
A. A stake on the ground or several stakes were placed on the ground by my surveyor
which identified the center of the ditch requiring a certain tie-in point which I do not
understand, and, from that point on, two points, which would identify the north point and the
ditch line and the northeast corner of the land I had my residence on. Two points were
definitely established by my surveyor and a stake was driven in the front line already existing
before the surveyor ever went to work and that was the corner of the rubble stone pillar. This
surveyor also identified the line of the ditch which would be the highway line or the south
side of the property.
Redelius further testified:
Q. Did you intend to deed any land west of that fence to Mr. Cafferata? A. I did not.
Q. You didn't know you were not qualified to follow metes and bounds in a deed, did
you? A. No, but we did run a steel tape from 86.5 feet from the center of the ditch and found
a stake there.
Q. You did that yourself? A. Yes.
Q. And you intended that the east boundary of your land would be 86.5 feet east of the
center of the ditchof the Sullivan-Kelley Ditch. Is that correct? A. Yes.
Q. Regardless of the calls of the deed, that is the metes and bounds, you did have the lot
staked out and agreed upon, regardless of what the deed said; is that right? A. Yes."
metes and bounds, you did have the lot staked out and agreed upon, regardless of what the
deed said; is that right? A. Yes.
It is in the evidence that the land was definitely staked out and agreed upon by Mrs. Olson
and Cafferata and Redelius prior to the erection of the fence.
The former Mrs. Redelius married Mr. Olson in August or September of 1926 and they
moved into the house or took possession of the residential property sometime in the spring of
1927. After they took possession of the premises they had built a concrete curb and put iron
posts in it and had erected an iron fence. The fence cost between two hundred and fifty and
three hundred dollars, and thereafter they had the particular parcel in question and the
remainder of their lot filled in; which took over a thousand yards of dirt and Olson testified
that at present prices it would cost approximately two thousand dollars for the fill work that
was put in the triangular piece and the remainder of his lot.
The appellants have had the quiet and peaceful possession of the premises since the date of
their deed to the present time and no claim was made against them or to them for the small
triangular piece until just prior to the commencement of this action.
Redelius was asked the question:
Q. What land did you turn over physically to these people that you sold, meaning Granata
and Cafferata? A. Land they wanted to the east of me where I had established my residence.
Q. That line was the line north and south from the southeast corner of the rubble stone
fence to the pin established by the surveyor at that time; is that correct? A. Yes, that is right.
Q. Since that time up to the present time to your knowledge has there been any change in
that line? A. I would not know.
Q. Do you know whether or not there was a fence established upon that line? A. Yes.
Q. Is that fence still existing? A. Yes.
Q. What character of fence is it? A. Wire fence with metal posts set in concrete curbing.
Q. Is that fence on the line that you said was 65 1/2 feet east of the center of the ditch
which you used as your base lineon the north line at sixty-eight and a fraction, is what I
think you said on the south sideI think you said 86 1/2 feet on the north. From your own
recollection, and you said it was about the same to the south, eighty-six and a fraction; do
these measurements still obtain with reference to the center of the ditch that you used for the
measuring line in laying out that boundary? A. Yes.
It appears further from the evidence that Mr. Cafferata was talking about purchasing the
remainder of the land east of the residential property for several months prior to the actual
taking of the mortgage and later the deed. The deals were all made and concluded
approximately simultaneously. At the time the land was sold to Cafferata and Granata by
Redelius, Mr. Redelius pointed out to Cafferata the land east of the home as shown by the
following testimony:
Q. At that time did you point out to Mr. Cafferata the land east of your home you were
selling? A. He knew the line went to the fence and everything east of the fence was to go to
him.
Q. Everything east of your fence that constituted your boundary? A. Yes.
Q. And that was satisfactory? A. Never any question raised.
The trial court found as a matter of fact:
That following the entry of this said decree of divorce, and within a few days after the
same, the said Redelius and his former wife made the following agreement: that as there were
a number of community obligations unpaid, the wife would quitclaim to the said Redelius all
of the property awarded to her by the said decree; that the husband would encumber that
portion on which the residence had been constructed after setting the same off from the
remainder of the tract, pay all obligations and reconvey to Ethel Bell Ione Redelius,
subject to the said mortgage, the area set off by him for the use of said residence.
residence had been constructed after setting the same off from the remainder of the tract, pay
all obligations and reconvey to Ethel Bell Ione Redelius, subject to the said mortgage, the
area set off by him for the use of said residence. That pursuant to said agreement Ethel Bell
Ione Redelius executed a quitclaim deed in favor of Julius Redelius covering the whole of
this tract (more particularly described in Paragraph I), which said deed was placed of record.
That said Redelius interested one M. E. Cafferata in becoming the mortgagee of the
residential premises and showed the same to Mr. Cafferata, and at the same time showed to
him, as a prospective purchaser, the balance of the tract east of the residential property. That
prior to showing these tracts of land to Mr. Cafferata, Redelius marked a line between the two
parcels so as to set one off from the other by taking certain measurements with a steel tape,
and afterwards marking the boundary line by driving stakes at each end of the
northerly-southerly line; that at the time Mr. Cafferata saw the property, the boundary had
been marked and was shown to him. That the unimproved parcel east of the residential
premises was and is approximately 150 feet in depth on the western boundary, thence follows
the curve of the highway to the eastern boundary which is approximately 104 feet in depth
and being approximately 242 feet on its northern boundary.
The trial court further found:
That thereafter and during the spring of 1927, in the month of April, the said Ethel Olson
and Gustav Olson, defendants herein, employed a mason to construct a stone and cement
fence along the boundary line between their property and the property acquired by Granata et
al.; that before said work was begun they requested Redelius to point out the line fixed by
him; that he did so and at that time noted the stakes driven by him the previous fall; that after
securing this information the contractor employed by the defendants was instructed to and
did build a stone and cement base and placed therein iron posts for a fence along this line,
which work was completed within a month of its commencement; the said defendants at
the time filled and levelled the entire area of ground which comprised the residential tract
as described in Paragraph IV aforesaid, together with the area along the boundary line
adjacent to their premises as well; that the approximate cost of all of this work was one
thousand dollars, and that the same was done with full knowledge and without objection
by Cafferata et al.
to and did build a stone and cement base and placed therein iron posts for a fence along this
line, which work was completed within a month of its commencement; the said defendants at
the time filled and levelled the entire area of ground which comprised the residential tract as
described in Paragraph IV aforesaid, together with the area along the boundary line adjacent
to their premises as well; that the approximate cost of all of this work was one thousand
dollars, and that the same was done with full knowledge and without objection by Cafferata et
al.
That the defendants, at the time they requested Redelius to mark the line for them, did not
do so with the purpose of settling an uncertainty, which had arisen as to a boundary line, but
were interested in having the boundary, called for by their deed, marked for the purpose of
constructing a fence thereon, that from the date of the completion of the fence in 1927 and
until the year 1947 neither the defendants nor plaintiffs or plaintiffs' predecessors in interest
questioned the line between the parcels of property, or had any occasion to do so; the
defendants continued to use the residence as their home and the parcel east of their home
remained unimproved and unused except for rental of the premises for placing of signboards
for advertising; that there is no proof that defendants paid or intended to pay taxes on the area
in dispute.
We are of the opinion that the trial court erred in applying the law to the undisputed facts
of the case. We think the case falls squarely under the rule of estoppel set forth in the case of
Small v. Robbins, 33 Nev. 288 et seq., 110 P. 1128, 112 P. 274, 123 P. 770.
There can be no question from a perusal of the evidence that a dividing line was
established between the property of the predecessors of the plaintiffs and the defendants by
Redelius through whom both the plaintiffs and the defendants obtained their title; that the
said dividing line was agreed to irrespective of the metes and bounds survey and accepted
as the common boundary and the dividing line between the respective parties for a period
of many years and more than the time prescribed by limitations; that the defendants,
appellants here, made valuable improvements upon the property with reference to said
established line with the knowledge and acquiescence of Cafferata and Granata, the
predecessors in interest of the plaintiffs, respondents here.
bounds survey and accepted as the common boundary and the dividing line between the
respective parties for a period of many years and more than the time prescribed by
limitations; that the defendants, appellants here, made valuable improvements upon the
property with reference to said established line with the knowledge and acquiescence of
Cafferata and Granata, the predecessors in interest of the plaintiffs, respondents here.
Where, as in this case, a dividing line was established between the property of appellants
and respondent by the act of one through whom appellants deraigned title and was acquiesced
in by respondent, which was not in fact the true line according to their respective deeds, in
accordance with which they or their grantees occupied their respective lands for a time in
excess of that prescribed by the statute of limitations, and immediately after the establishment
of such line the respondent makes valuable improvements with reference to such line, on the
land supposed to be hers, with the knowledge of the one who established said line, he and his
successors in interest are conclusively estopped from questioning it as the true line. Small v.
Robbins, 33 Nev. 300, 110 P. 1129, and cases cited.
The case of Quinn v. Small, found in 38 Nev. 8, 143 P. 1053, is also in point as to
estoppel.
Inasmuch as the principle of estoppel applies in this case, we feel it is not necessary to
discuss the other defense, that of adverse possession.
The judgment of the trial court will be reversed and it is ordered that the appellants have
judgment to the strip of land in question.
Eather, J., being absent on account of illness the Governor assigned Honorable Clark J.
Guild, Judge of the First Judicial District to sit in his stead.
____________
66 Nev. 350, 350 (1949) State v. Hurley
THE STATE OF NEVADA, Respondent, v. HOBISON DEWEY HURLEY, also known as
STEPHEN HURLEY, also known as H.D. HURLEY, Appellant.
No. 3560
October 24, 1949. 210 P.2d 922.
1. Escrows.
Although originally, and under the common law, the term escrow was applied to
instruments for the conveyance of land, it is now commonly applied to the deposit of
any written instrument and to the deposit of money.
2. Criminal Law.
Defendant, for the first time on motion in arrest of judgment of conviction, could
raise point that facts stated in indictment were insufficient to charge offense.
3. False Pretenses.
Indictment charging in effect that defendant falsely represented that money paid for
corporate stock by others would remain on deposit in escrow until the plant to be built
by corporation of which defendant was an officer was under construction, and that
arrangements had been made with title insurance company for the escrow, and that
defendant withdrew the money and appropriated it to his own use charged offense of
obtaining money under false pretenses. N.C.L. 1929, secs. 10391, 10857, subds. 1-7,
10858, 10865, 11100.
Appeal from Eighth Judicial District Court, Clark County; A.S. Henderson, Judge.
Hobison Dewey Hurley, also known as Stephen Hurley, also known as H. D. Hurley, was
convicted of obtaining money under false pretenses, and he appeals.
Carville & Carville, of Reno, and Horace Appel, of Los Angeles, California, for
Appellant.
Alan Bible, Attorney General, W.T. Mathews, Geo. P. Annand and Robert L. McDonald,
Deputy Attorneys General, Robert E. Jones, District Attorney of Clark County, and A.W.
Ham, Jr., Deputy District Attorney, for Respondent.
OPINION
Appellant was convicted on October 7, 1948, in Clark County, Nevada, of the crime of
obtaining money under false pretenses, committed September 20, 1946. He has appealed
from the judgment and from the order denying his motion for a new trial. The sole point
presented to this court in support of the appeal is that the indictment, by which the defendant
was charged, fails to allege sufficient facts to constitute a criminal offense. The indictment
reads as follows: (Repetition in words of figures used is deleted.)
Defendant, Stephen Hurley, also known as H. D. Hurley, above-named, is accused by the
Grand Jury of the County of Clark, State of Nevada, in the name and by authority of the State
of Nevada, of a felony, to-wit: The crime of obtaining money under false pretenses in
violation of Section 10391, N.C.L., committed as follows:
The said Stephen Hurley, on or about the 20th day of September, 1946, or thereabouts,
and before the filing of this indictment in the County of Clark, State of Nevada, then and
there being in said County and State, and then and there being an agent and officer of the Las
Vegas Brewing Co., a corporation organized and doing business under the laws of the State
of Nevada, and then and there intending to cheat and defraud Jerome Jerome and his wife,
Helen Jerome, did then and there knowingly and designedly falsely represent and state to
Helen Jerome and to Jerome Jerome that the capital stock of said Las Vegas Brewing Co. was
well worth the price of $1.00 per share of Common stock and $100.00 per share of Preferred
stock, or $101.00 per unit of one share of Common stock to one share of Preferred stock; that
if the said Jerome Jerome or Helen Jerome would purchase some shares of said stock in said
corporation from the defendant, Stephen Hurley, at a price of $101.00 per unit, that the
money so paid for said stock would remain on deposit in escrow with the Pioneer Title
Insurance and Trust Company at Las Vegas, Nevada, until such time as the said Las Vegas
Brewing Co. plant was under construction in Las Vegas, Nevada, and that arrangements
had been made with said Pioneer Title Insurance and Trust Company for such an escrow;
that a 'sound' {Accoustics) engineer from Hollywood, California, by the name of McAllister
had purchased 3,125 shares of Common stock of said corporation; whereas, in truth and
in fact, as the said defendant, Stephen Hurley then and there well knew, the said
representations and statements were false and untrue; that the capital stock was highly
speculative, had no marketable value, and that no moneys taken in for the sale of said
stock remained on deposit, in escrow, with the Pioneer Title Insurance and Trust
Company, and that no arrangements had been made by the defendant, Stephen Hurley, or
anyone else, for said funds to remain on deposit in escrow with the Pioneer Title
Insurance and Trust Company; that said 'sound' engineer named McAllister had not in fact
purchased any stock of the said Las Vegas Brewing Co.; that the said Jerome Jerome and
his wife, Helen Jerome, believing said statements and representations on the part of
defendant, and relying thereon, and as the result thereof, did then and there purchase
five shares of Common Stock and five shares of Preferred stock of the Las Vegas Brewing
Co. from the defendant, Stephen Hurley, and did then and there give to the Pioneer Title
Insurance and Trust Company for the account of the defendant, Stephen Hurley, and at
the specific request of the defendant, Stephen Hurley, their own personal check, totalling
$505.00 drawn on the First National Bank of Nevada, Las Vegas Branch, Las Vegas,
Nevada, dated September 24, 1946, and, subsequently, Jerome Jerome and his wife,
Helen Jerome, in good faith, and relying on the statements and representations on the
part of defendant, and at the specific request of the defendant, Stephen
per unit, that the money so paid for said stock would remain on deposit in escrow with the
Pioneer Title Insurance and Trust Company at Las Vegas, Nevada, until such time as the said
Las Vegas Brewing Co. plant was under construction in Las Vegas, Nevada, and that
arrangements had been made with said Pioneer Title Insurance and Trust Company for such
an escrow; that a sound' (Accoustics) engineer from Hollywood, California, by the name of
McAllister had purchased 3,125 shares of Common stock of said corporation; whereas, in
truth and in fact, as the said defendant, Stephen Hurley then and there well knew, the said
representations and statements were false and untrue; that the capital stock was highly
speculative, had no marketable value, and that no moneys taken in for the sale of said stock
remained on deposit, in escrow, with the Pioneer Title Insurance and Trust Company, and
that no arrangements had been made by the defendant, Stephen Hurley, or anyone else, for
said funds to remain on deposit in escrow with the Pioneer Title Insurance and Trust
Company; that said sound' engineer named McAllister had not in fact purchased any stock of
the said Las Vegas Brewing Co.; that the said Jerome Jerome and his wife, Helen Jerome,
believing said statements and representations on the part of defendant, and relying thereon,
and as the result thereof, did then and there purchase five shares of Common Stock and five
shares of Preferred stock of the Las Vegas Brewing Co. from the defendant, Stephen Hurley,
and did then and there give to the Pioneer Title Insurance and Trust Company for the account
of the defendant, Stephen Hurley, and at the specific request of the defendant, Stephen
Hurley, their own personal check, totalling $505.00 drawn on the First National Bank of
Nevada, Las Vegas Branch, Las Vegas, Nevada, dated September 24, 1946, and,
subsequently, Jerome Jerome and his wife, Helen Jerome, in good faith, and relying on the
statements and representations on the part of defendant, and at the specific request of the
defendant, Stephen Hurley, did then and there purchase 3,125 shares of Common stock of
the Las Vegas Brewing Co., tendering in payment therefor their personal check drawn on
the First National Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, in the sum of
$3,125.00, dated October 25, 1946, for said stock, and that the said defendant, Stephen
Hurley, by means of said false pretenses did then and there and in the manner aforesaid
obtain from Jerome Jerome and Helen Jerome, his wife, the sum of $3,630.00, lawful
money of the United States; that said checks were deposited with the First National Bank
of Nevada, Las Vegas Branch, Las Vegas, Nevada, to the credit of the Las Vegas Brewing
Co. and were honored by the drawee Bank when presented for payment in due course,
and said sums were deducted from the account of Jerome Jerome and Helen Jerome at
the drawee Bank; that said defendant, Stephen Hurley, drew said moneys out of the
account of the Las Vegas Brewing Co. at the First National Bank of Nevada, Las Vegas
Branch, Las Vegas, Nevada, and appropriated the same for his own use and purposes,
contrary to the form of the statute in such case made and provided."
request of the defendant, Stephen Hurley, did then and there purchase 3,125 shares of
Common stock of the Las Vegas Brewing Co., tendering in payment therefor their personal
check drawn on the First National Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, in
the sum of $3,125.00, dated October 25, 1946, for said stock, and that the said defendant,
Stephen Hurley, by means of said false pretenses did then and there and in the manner
aforesaid obtain from Jerome Jerome and Helen Jerome, his wife, the sum of $3,630.00,
lawful money of the United States; that said checks were deposited with the First National
Bank of Nevada, Las Vegas Branch, Las Vegas, Nevada, to the credit of the Las Vegas
Brewing Co. and were honored by the drawee Bank when presented for payment in due
course, and said sums were deducted from the account of Jerome Jerome and Helen Jerome at
the drawee Bank; that said defendant, Stephen Hurley, drew said moneys out of the account
of the Las Vegas Brewing Co. at the First National Bank of Nevada, Las Vegas Branch, Las
Vegas, Nevada, and appropriated the same for his own use and purposes, contrary to the form
of the statute in such case made and provided.
Section 10391, N.C.L., referred to in the indictment reads, in part, as follows:
Every person who shall knowingly and designedly, by any false pretense or pretenses,
obtain from any other person or persons any chose in action, money, goods, wares, chattels,
effects, or other valuable thing, with intent to cheat or defraud any person or persons of the
same shall be deemed a cheat, and on conviction shall be imprisoned in the state prison not
more than ten years nor less than one year * * *.
Section 10865, N.C.L., defining what shall be a sufficient description of the offense, to
be contained in the indictment, reads as follows:
In every complaint, indictment or information for obtaining or attempting to obtain any
chose in action, money, goods, wares, chattels, effects or other valuable things, by false
representations or by causing or procuring others to report falsely of his wealth or
mercantile character, or by any false pretense whatsoever, it shall be a sufficient
description of the offense to charge that the accused did, at a certain time and place,
unlawfully obtain, or attempt to obtain, as the case may be, from A. B. his money or
property, describing it generally, where it can be done, by means and by use of a cheat, or
fraud, or trick, or deception, or false representation, or false pretense, or confidence
game, or false and bogus check, or instrument, or coin, or metal, as the case may be, with
intent to cheat and defraud the said A. B."
Upon the return of the verdict on October 2, 194S the court set October 7, 194S as the
date for pronouncing judgment.
money, goods, wares, chattels, effects or other valuable things, by false representations or by
causing or procuring others to report falsely of his wealth or mercantile character, or by any
false pretense whatsoever, it shall be a sufficient description of the offense to charge that the
accused did, at a certain time and place, unlawfully obtain, or attempt to obtain, as the case
may be, from A. B. his money or property, describing it generally, where it can be done, by
means and by use of a cheat, or fraud, or trick, or deception, or false representation, or false
pretense, or confidence game, or false and bogus check, or instrument, or coin, or metal, as
the case may be, with intent to cheat and defraud the said A. B.
Upon the return of the verdict on October 2, 1948 the court set October 7, 1948 as the date
for pronouncing judgment. On that date the defendant presented a motion for new trial and a
motion in arrest of judgment. Both motions were denied, judgment was pronounced and
defendant immediately filed his notice of appeal. The motion in arrest of judgment was based
upon the ground that the facts stated in the indictment did not constitute a public offense. The
record does not disclose that any objection to the sufficiency of the indictment had theretofore
been made.
Appellant's analysis of the indictment is that the same in essence charges three pretenses:
(1) That the common stock was well worth the price of $1 per share and that the unit of one
share of common and one share of preferred was well worth $101 per unitthe falsity of the
representation being that the stock was highly speculative, had no marketable value; (2)
that the money so paid for said stock would remain on deposit in escrow with the Pioneer
Title Insurance and Trust Company at Las Vegas, Nevada, until such time as the said Las
Vegas Brewing Co. plant was under construction in Las Vegas, Nevada, and that
arrangements had been made with said Pioneer Title Insurance and Trust Company for such
an escrowthe falsity of the representation being that no moneys taken in for the sale of
said stock remained on deposit, in escrow, with the Pioneer Title Insurance and Trust
anyone else, for said funds to remain on deposit in escrow with the Pioneer Title
Insurance and Trust Company"; and {3) "that a 'sound' {accoustics) engineer from
Hollywood, California, by the name of McAllister had purchased 3,125 shares" of said
common stock, whereas said McAllister had not in fact purchased any of such stock.
of said stock remained on deposit, in escrow, with the Pioneer Title Insurance and Trust
anyone else, for said funds to remain on deposit in escrow with the Pioneer Title Insurance
and Trust Company; and (3) that a sound' (accoustics) engineer from Hollywood,
California, by the name of McAllister had purchased 3,125 shares of said common stock,
whereas said McAllister had not in fact purchased any of such stock.
Adopting for the moment appellant's analysis of the indictment and assuming, but not
deciding, that appellant is correct in characterizing the first alleged false pretense as simply an
opinion of value and his characterization of the third alleged false pretense as lacking in
causal connection and inducement, to accomplish the end that the Jeromes should part with
$3,630, and did part with $3,630, for the Las Vegas Brewing Company stock, we are satisfied
that the statutory offense was charged in the second count.
Appellant contends that there is a complete lack of causal connection, inducement or
materiality in the representation that arrangements had been made for the escrow, whereas no
such arrangement had been made; that no benefit or detriment could result to the Jeromes by
the existence or nonexistence of such arrangement; that no representation is alleged that the
Jeromes would get their money back after the lapse of time if construction did not begin; that
the representation that the escrow arrangement had been made could not be an inducing factor
to cause any reasonable person to part with his money. We are unable to agree with this
argument. A more prudent person might have demanded an inspection of written escrow
instructions to the bank. He might, upon examining such escrow instructions, if any, have
required greater restrictions, limitations or other protection before the bank could release any
proceeds of stock sales thus placed in escrow. The fact that the Jeromes did not take these
precautions throws no cloak of protection about the defendant.
cloak of protection about the defendant. The defendant represented that an escrow had been
arranged for. This representation was false. No arrangement had been made for the holding of
the funds in escrow. Such lack permitted the immediate withdrawal of the money by the
defendant. Nor is this affected by the fact, emphasized by appellant, that the deposit was
made to the credit of the brewing company, thereafter withdrawn by appellant. The
indictment alleged that appellant was an officer and agent of the brewing company. Appellant
could have transferred the deposit a half dozen times without destroying the fact that he
appropriated the money to his own use. The representation that the arrangement had been
made for deposit of the funds in escrow is alleged in the indictment to have been believed and
relied upon by Jerome, who, as a result thereof, purchased the stock and parted with his
money.
1. Although originally, and under the common law, the term escrow was applied to
instruments for the conveyance of land, 30 C.J.S., Escrows, sec. 3, page 1193, it is now
commonly applied to the deposit of any written instrument and to the deposit of money.
Under the allegations of the indictment the Jeromes deposited their money by reason of an
actual representation, false in fact, from which they drew the assurance that it would remain
in escrow. Uncertain as the condition or contingency or terms of the escrow might have been,
the representation or false pretense would, if true, have excluded the chance of what actually
happened, namely, that the defendant could withdraw the money for his own use at any time.
2. We revert to the fact, as disclosed by the record, that the sufficiency of the indictment
was not attacked until defendant moved in arrest of judgment after the jury had returned its
verdict. Without foreclosing the right of appellant thus to raise the point for the first time,
State v. Trolson, 21 Nev. 419, 32 P. 930, the inclination for a rigidly strict construction of the
requirements for the contents of the indictment is not so great when thus first raised.
when thus first raised. This court held an indictment good in State v. Raymond, 34 Nev. 198,
117 P. 17, especially so when no objection was made thereto until after verdict. The court
referred to the recent tendency to be less technical than formerly in construing indictments
especially so where no demurrer was interposed to the indictment and an opportunity
afforded to cure the defect prior to trial. In State v. Hughes, 31 Nev. 270, 102 P. 562, this
court said:
The indictment, it must be admitted, is far from being a model. Where, however, the
sufficiency of an indictment is questioned for the first time upon appeal, it will not be held
insufficient to support the judgment, unless it is so defective that by no construction, within
the reasonable limits of the language used, can it be said to charge the offense for which the
defendant was convicted. Virtually the same is said by this court in State v. Lovelace, 29
Nev. 43, 83 P. 330, referred to in the Hughes case.
Section 10857, N.C.L., provides that the information shall be sufficient if it can be
understood therefrom * * *: Here follow provisions 1 to 5 having to do with the authority of
the court, the grand jury, recitals of the name of the defendant and the time and place of the
commission of the offense. Subdivisions 6 and 7 read as follows:
6. That the act or omission charged as the offense is clearly and distinctly set forth in
ordinary and concise language, without repetition and in such a manner as to enable a person
of common understanding to know what is intended.
7. That the act or omission charged as the offense is stated with such a degree of certainty
as to enable the court to pronounce judgment upon a conviction, according to the right of the
case.
What we have said above indicates our conclusion that the requirements of this section
have been met. Appellant places great reliance on In re Waterman, 29 Nev. 288, 89 P. 291, 11
L.R.A.,N.S., 424, 13 Ann.Cas. 926, in which this court, through Mr.
which this court, through Mr. Justice Sweeney, granted a writ of habeas corpus to the
petitioner who was being held under an executive order honoring a requisition under an Iowa
indictment. The charge was that of obtaining money by false pretenses. The court in releasing
the petitioner for the insufficiency of the indictment called attention to the absence of any
allegation to the effect that the petitioner obtained or received directly or indirectly from the
complaining witness or anyone else any money or thing of value in consideration of the sale
of the stock. It did not appear from the indictment that the complaining witness had
purchased any of the stock either from the petitioner or any agent of his or from his company
or that the petitioner received any part of the money spent by the complaining witness. This
court held that the essential ingredient, namely, the obtaining of something of value, was
lacking.
The foregoing case, decided in 1907, is also relied upon by appellant for its statement that
statutes of this nature must as against the defendants be strictly construed, while liberally
construed in their favor. This court in 1911 said in State v. Raymond, 34 Nev. 198, 117 P. 17:
It has been the tendency of courts in recent years to be less technical than formerly in
construing indictments, especially so where no demurrer was interposed to the indictment and
an opportunity afforded to cure the defect prior to trial.
Mr. Justice Sweeney's statement that indictments must be strictly construed against the
state and liberally construed in favor of the defendant as made in the Waterman case, supra,
cited no authorities. The Raymond case, supra, in July 1911, and Ex parte Breckenridge,
1911, 34 Nev. 275, 118 P. 687, Ann.Cas. 1914B, 871, hold for a liberal construction of the
indictment, especially where no demurrer was interposed and no opportunity offered to cure
the defect prior to trial. In the latter case this court said that the same specific allegations are
not always required to support a judgment that would be exacted if the question were
being considered upon demurrer.
allegations are not always required to support a judgment that would be exacted if the
question were being considered upon demurrer.
The theory of the Raymond and Breckenridge cases more nearly conforms with the
legislative mandate contained in N.C.L., sec. 10858, reading as follows:
No indictment or information shall be deemed insufficient, nor shall the trial, judgment or
other proceeding thereon be affected by reason of any defect or imperfection in matter of
form which does not tend to the prejudice of a substantial right of the defendant upon its
merits.
The foregoing statute, being sec. 210 of the Criminal Practice Act, was not, it should be
noted, precisely in its present form at the time of either the 1907 decision or the 1911
decisions, but was amended to read as above in 1919. Stats. of Nevada, 1919, chap. 232, pp.
416, 417.
3. It may be conceded that the indictment in this case is inartistically drawn. Counsel for
respondent frankly admitted such fact in his oral argument. The record before us does not
disclose that its sufficiency was attacked in any way before the trial. The defendant was
represented at the trial by Las Vegas and Los Angeles counsel, and is represented on this
appeal by Los Angeles and Reno counsel. The record does not disclose that the rights of
defendant were prejudiced by either the lack of artistry in the drafting or lack of full and more
definite recitals of fact in the indictment. State v. Harrington, 9 Nev. 91; Ex parte
Breckenridge, 34 Nev. 275, 118 P. 687, Ann.Cas.1914B, 871; State v. Hughes, 31 Nev. 270,
102 P. 562; State v. Lovelace, 29 Nev. 43, 83 P. 330. Section 11100, N.C.L., provides:
After hearing the appeal, the court shall give judgment without regard to technical error
or defect which does not affect the substantial rights of the parties. The sufficiency of the
indictment is also attacked in other respects. We have considered all such assignments but
find the same without merit.
As the indictment states facts sufficient to constitute the offense of obtaining money under
false pretenses and as no other error is alleged, the judgment and the order denying
defendant's motion for a new trial must be affirmed. It is so ordered.
Horsey, C. J., and Guild, District Judge, concur.
Eather, J., being absent by reason of illness, the Governor commissioned Honorable Clark
J. Guild, Judge of the First Judicial District of the State of Nevada, to sit in his place.
January 25, 1950.
Per Curiam:
Rehearing denied.
____________
66 Nev. 360, 360 (1949) Peccole v. Luce & Goodfellow
ROBERT PECCOLE, Et Al., v. LUCE & GOODFEL-
LOW, INC., a Corporation, Et Al., Respondents.
No. 3562
December 8, 1949. 212 P.2d 718.
1. Pleadings.
Material allegations of complaint not properly denied stand admitted.
2. Pleading.
Generally a special denial of one or more allegations of complaint admits all others well pleaded.
3. Mechanics' Liens.
In action to foreclose mechanic's lien, special denial that lien claim was not filed within 90 days from
completion of work on premises by plaintiff, and the furnishing of materials, created only that issue.
N.C.L.1929, secs. 3735, 3743; N.C.L. 1931-1941 Supp., sec. 3739.
Generally, a mistake in statement in lien claim as to the name of the person with whom mechanic's
lien claimant contracted, or by whom he was employed, will not defeat the lien, where there was no
intention to deceive and no one was misled to his detriment, and it will not be presumed in absence of
evidence to that effect that any one was misled. N.C.L.1931-1941 Supp., sec. 3739.
5. Pleading.
Defendants' consent to overruling of their demurrer to complaint was effective as a withdrawal of the
demurrer.
If there is substantial compliance with statute relating to filing of claim of mechanic's lien, the
pleadings and notices required by statute should be liberally construed to promote the objects to be
effected, and the statute should not be construed so technically as to destroy claimant's right of lien.
N.C.L.1931-1941 Supp., sec. 3739.
In action to foreclose mechanic's lien, the lien claim and complaint would be read and considered
together.
The theory upon which all labor liens are based, is that they are remedial in their nature, and intended
to assist the laborer to obtain a just price for his services. N.C.L.1929, secs. 3735, 3743;
N.C.L.1931-1941 Supp., sec. 3739.
A mechanic's lien claim will not be held to be invalid where it may reasonably be inferred by whom
claimant was employed or to whom he furnished materials. N.C.L.1931-1941 Supp., sec. 3739.
Evidence did not establish such a material variance between lien claim and proof as to who employed
claimant, and as to whom claimant furnished materials, as to invalidate the lien. N.C.L.1931-1941 Supp.,
sec. 3739.
Under statute, mechanic's lien rights are deemed to attach to improved building upon filing of lien
claim, if improvements were made with knowledge of owner, unless owner within three days after
knowledge gives notice that he will not be responsible for the improvements by posting and filing as
provided by statute, and in absence of such notice, owner is estopped to deny authority of owner's tenant
or other person authorizing improvements. N.C.L.1929, secs. 3735, 3743.
The statute providing that mechanic's lien rights are deemed to attach to improved building upon
filing of mechanic's lien claim, if improvements were made with knowledge of owner of building, unless
owner within three days after knowledge gives notice that he will not be responsible for the
improvements by posting and filing as provided by statute, is mandatory. N.C.L.1929, secs. 3735, 3743.
In action to foreclose mechanic's lien, complaint could be amended on proper motion to conform to
proof, where there was no evidence that alleged variance between complaint and proof relative to who
employed claimant and to whom claimant furnished materials, resulted from fraud of
claimant, or was intentional, or that defendant was misled to his prejudice, and no
third party had intervened.
furnished materials, resulted from fraud of claimant, or was intentional, or that defendant was misled to
his prejudice, and no third party had intervened. N.C.L.1929, secs. 3735, 3743; N.C.L.1931-1941 Supp.,
sec. 3739.
Under statute relating to filing of mechanic's lien and providing that upon trial of action to foreclose
lien, court should order an amended claim of lien to be recorded if an error was made in name of owner
or reputed owner, or the wrong person was named as owner or reputed owner in lien claim, the provision
for amendment is directory only. N.C.L.1931-1941 Supp., sec. 3739.
If a counter installed in building was intended to be a part of improvement to building, in
contemplation of business to be conducted in building, the counter became a fixture subjecting the
building to mechanic's lien. N.C.L.1929, secs. 3735, 3743; N.C.L.1931-1941 Supp., sec. 3739.
16. Fixtures.
Whenever chattels have been placed in and annexed to a building by their owner as a part of the
means by which to carry out the purposes for which the building was erected, or to which it has been
adapted, and with intention of permanently increasing its value for the use to which it is devoted, the
chattels become fixtures.
Where work done to improve building is continuous, mechanic's lien is preserved by giving notice
within 90 days after the work is completed, even though the work is done under separate contracts, unless
owner files notice of completion within ten days after work is completed. N.C.L.1931-1941 Supp., sec.
3739.
Where an owner of building intentionally leads mechanic's lien claimant to believe the building is not
completed, or that work was required to be done under contract, and claimant relies upon such
representation, owner is estopped in action to foreclose lien to assert that contract was already completed
before such work was done, and that statute of limitations on filing of lien claim began to run before such
work was done. N.C.L.1931-1941 Supp., sec. 3739.
Evidence did not establish that varnishing a counter installed in building for use in business was
trivial so as to start statute of limitations running against right to file mechanic's lien claim before the
varnishing was completed because the work was previously completed. N.C.L.1931-1941 Supp., sec.
3739.
The supreme court will not vary a finding of fact of trial court where finding is supported by
substantial evidence, or where evidence is conflicting.
21. Appeal and Error. Mechanics' Liens.
The amount which may be allowed plaintiff as attorney fees in action to foreclose mechanic's lien
rests in sound discretion of trial court under statute, taking into consideration the amount involved, the
character of the services rendered, and the time employed, and allowance will not be disturbed if
supported by substantial evidence, and statutory discretion in fixing the allowance will not be interfered
with if discretion was not abused. N.C.L.1929, secs. 3735, 3743; N.C.L.1931-1941 Supp., sec. 3739.
In action to foreclose mechanic's liens, allowance to plaintiffs of $600 as attorney fees on the sum of
$2,236.56 recovered, was not arbitrary or an abuse of discretion under the evidence. N.C.L.1929, secs.
3735, 3743; N.C.L.1931-1941 Supp., sec. 3739.
Action by Luce & Goodfellow, Inc., a corporation, and Gordon Shelton, sole owner doing
business under the firm name and style of Las Vegas Maintenance Company, and L. H.
Bradley and Ruffner Simmons, copartners, doing business under the firm name and style of
Bradley-Simmons Company, and D. W. Sumpter and W. S. Goodwin, copartners doing
business under the firm name and style of Super Cold Products and F. W. Sharpe and Allen
L. Sharpe, copartners, doing business under the firm name and style of F. W. Sharpe
Decorating Co., and Tommy Roberts, sole owner doing business under the firm name and
style of Roberts Roofing and Floor Co., against Robert Peccole and others, to foreclose
mechanic's liens. From judgment adverse to them, defendants appeal. Affirmed.
Jones, Wiener & Jones, of Las Vegas, for Appellants.
Harvey Dickerson, of Las Vegas, for Respondents.
OPINION
By the Court, Watson, District Judge:
This is an appeal from a judgment decreeing foreclosure of liens: A, $1,055.36 to Luce
& Goodfellow, Inc., an electrical company; D, $382.70 to F. W. and Allen L. Sharpe,
painters and decorators; E, $798.50, to Tommy Roberts doing business as Roberts Roofing
& Floor Company; awarding $600 attorney fee, and decreeing said sums to be a lien on the
property described.
A joint action was filed by six claimants for more than $14,000, and copies of their
respective claims were attached as a part of the complaint as Exhibits A to F, inclusive. It
was stipulated at the trial that evidence adduced should apply to claims other than A, D
and E above only in the event the others were not compromised. The court below found
that other claims had been compromised and settled, and E is dismissed on this appeal by
request of appellants on admission that the findings below were correct with reference
thereto.
The appeal then is from the judgment and order denying new trials as to A and D
claims only, insofar as we are concerned here.
The contention of defendants differing as to the two causes, they for the most part must be
treated separately, but discussion herein as to either cause which is decisive as to both causes,
is so intended.
Paragraphs I and II of the complaint allege that Luce & Goodfellow in the capacity of
electricians furnished material and labor on the premises at the instance and request of
Christie, lessee of owners Peccole and others, on his, Christie's, promise to pay the reasonable
value thereof; that the materials were used in improving the building; that the owners, Robert
and Peter Peccole and Louis Wiener, Jr., were cognizant of and had notice of the installation
of the electrical work and wiring; that $1,364.56 was the reasonable value of the labor and
materials, and that payment had been refused on demand, and so forth.
materials, and that payment had been refused on demand, and so forth.
The answer and separate defense admit I and II, except to aver substantial compliance by
May 16, instead of June 18, 1947, to deny furnishing of material or labor after the former
date, and to deny the reasonable value to be more than $1,000, on which credit is claimed of
$300. We think this is answered by undisputed evidence of Albright, salesman and estimator
for plaintiff, and Exhibit C2, ledger sheet showing the connection of an electric heater May
19, 1947, certain electrical work as contracted for, and a balance due as of that date of
$1,355.36, on which claimed credit of $300 was allowed by the judgment of $1,055.36. In
any event there was substantial evidence to sustain the findings in these respects. Nor should
the fixing of interest on the judgment as of June 18 be complained of as it benefits no one but
defendants.
Defendants admit that lien claim A was filed as required by law on June 18 as alleged in
Paragraph XV, and the only claim filed within ninety days, and admit that as alleged therein
all claims were filed according to law on various dates, including D filed as of August 23.
The answer denied the balance of that paragraph in which it is alleged that each claim was
filed within ninety days from completion of work and furnishing of materials, and in which
particulars of compliance with our lien laws are enumerated; we point out that this denial was
qualified by the wording of the answer, Paragraph XXIII, * * * and allege the fact to be that
all plaintiffs herein, save and except Luce & Goodfellow, Inc., filed their lien claims more
than ninety days after the completion of the work to be performed and/or materials furnished
by said plaintiffs * * *. Nor does the separate defense point out any defect in this or the other
liens except to repeat as to other liens, failure to file within the ninety days.
1-3. The special denial as to time of filing only, we think created only that issue.
think created only that issue. Material allegations not properly denied, stand admitted. 49 C.J.
341, p. 275, and cases there cited, note 74. Applying the general rule that what should be and
is not traversed or denied is admitted, generally speaking a special denial of one or more
allegations admits all others well pleaded. Pleading, section 346, 49 C.J., p. 281 and cases
there cited, note 42, under which is cited Shamlian v. Wells, 197 Cal. 716, 242 P. 483, 484,
an action for occupancy of realty. Defendant Caine there denied generally the allegations of
the complaint, but specially denied that he unlawfully retained possession and harvested crops
during the period. The court said in substance: The denial last referred to must be taken as an
admission of retention of possession, harvesting crops and appropriation of the proceeds of
sale thereof as alleged in the complaint. The only issue raised was as to the lawfulness of
appropriation and possession.
A general demurrer was filed herein to the complaint as a whole, same being overruled by
consent on time being given to answer. There was no objection at the trial to introduction of
evidence in support of lien A because of its failure to comply with section 3739, N.C.L.
Supp.1931-1941, pertaining to mechanics' liens. The matter was submitted on brief and there
for the first time appellants argued that lien A failed to contain also the name of the person
by whom he was employed or to whom he furnished the material.
That is appellants' principal contention here, that A was fatally defective in this respect,
invalid and did not support the judgment and therefore a new trial should have been granted.
Section 3739, N.C.L.Supp., provides that the lien claim shall contain, also, the name of the
person by whom claimant was employed or to whom he furnished the material. Lien claim
A gives notice that Luce & Goodfellow, Inc., under and pursuant to the laws of the State
of Nevada relating to liens of mechanics and others, claim a lien upon that certain real
property * * *," giving location and description; "that said lien is claimed for material and
labor furnished in the installation of electrical work and wiring installed in the building
situated upon the above described lots"; "that Robert Peccole, Peter Peccole and Louis
Wiener, Jr., are now, and at all times herein mentioned were the owners and reputed
owners of the real estate described, and that S. D. Christie is the lessee of said owners."
others, claim a lien upon that certain real property * * *, giving location and description;
that said lien is claimed for material and labor furnished in the installation of electrical work
and wiring installed in the building situated upon the above described lots; that Robert
Peccole, Peter Peccole and Louis Wiener, Jr., are now, and at all times herein mentioned were
the owners and reputed owners of the real estate described, and that S. D. Christie is the
lessee of said owners. It sets out the value of the materials and labor, date of completion and
that the whole of said property was necessary for the convenient use and occupation of said
building.
Though the only parties in interest as appears by the pleadings and the proof are named as
owners and lessees, the failure to identify in so many words one or the other, as the employer
or person to whom materials were furnished, seems the basis of appellants' contention here.
As to the cases most relied on by appellants, we do not find Nofziger Bros. Lumber Co., 2
Cal.App. 219, v. Shafer, 83 P. 284, in point. Hooper v. Flood, 1880, 54 Cal. 218, properly
held: Demurrer for misjoinder should have been sustained as to defendant Flood alleged in
the complaint and nominated in the lien claim to have been the agent of Irvine, the owner;
that the word cash does not state terms, time given and conditions of contract, no longer
required by 1187, Code of Civil Procedure, Baird v. Ocequeda, 8 Cal.2d 700, 67 P.2d 1055;
that statement of intervener that materials were furnished for Irvine and Lien was claimed on
his interest in the land and buildings, was not a statement of owner or reputed owner. In
Norton v. Bedell Engineering Co., 1928, 88 Cal.App. 777, 264 P. 311, where neither
complaint nor lien claim stated, as required by 1187, C.C.P., kind of materials furnished or
work done, objection to evidence was sustained without leave to amend despite 1203, C.C.P.,
where complaint stated none of the material matters in the lien claim and did not attach or
contain a copy of lien claim. The court there said it could not be ascertained from the
complaint as to contents of lien notice, whether compensation was sought for lumber,
hardware, paint, plaster or brick nor whether work performed was that of a carpenter,
plumber, painter or brick mason.
there said it could not be ascertained from the complaint as to contents of lien notice, whether
compensation was sought for lumber, hardware, paint, plaster or brick nor whether work
performed was that of a carpenter, plumber, painter or brick mason. In Hogan v. Bigler, 1908,
8 Cal.App. 71, 96 P. 97, strictly interpreting the statute as so many earlier cases did under
statutes similar to our own, the court held that required statement, among other things, the
name of the person to whom he furnished the materials, was not met where lien stated and
complaint alleged that lumber was sold to Crawford and evidence without conflict shows sale
to one Hambleton, and the lower court so found. The court there said: It appears clear that if
a notice of claim of lien states that materials were furnished to a particular person, when, as a
fact, they were sold to a different person, and not to the person named, such claim would be
more objectionable and defective than if the claim of lien had contained no statement. In
the one case no information is given, and in the other information is given which is untrue
and misleading. Madera Flume & Trading Co. v. Kendall, 1898, 120 Cal. 182, 52 P. 304, 65
Am.St.Rep. 177, cited therein says, that statement in lien, that one Price was contractor, fails
to name person to whom materials were furnished, where statement is consistent with their
having been furnished to some one other than Price. We feel the court there followed the
harsh trend of the then decisions in holding that though the complaint alleged Price as the
person to whom materials were furnished, the lien could not be amended in this respect.
4. We point out that Johnson v. Smith, 1929, 97 Cal. App. 752, 276 P. 146, interpreted
section 1203, C.C.P., differently than did Norton v. Beddell Engineering, supra, that section
providing: No mistake or errors in the statement of the demand, or of the amount of credits
and offsets allowed or of the balance asserted to be due to claimant, nor in the description of
the property against which the claim is filed, shall invalidate the lien," unless the court
found that the mistake or error was made with intent to defraud; or an innocent third
party had become bona fide owner without notice, constructive or direct, and that it did
not put the party on further inquiry in any manner.
the lien, unless the court found that the mistake or error was made with intent to defraud; or
an innocent third party had become bona fide owner without notice, constructive or direct,
and that it did not put the party on further inquiry in any manner. It was held that omission to
state in lien claim, kind of materials furnished, was not fatal in absence of showing of
intent to defraud or resulting injury to third persons. In Shafer v. Los Serranos et al., 128
Cal.App. 357, 17 P.2d 1036, 1037, it was conceded that the lien notice failed to state the
name of the party to whom materials were furnished, merely naming bank as owner, Los
Serranos Co., as erector of building, H & C Construction Co., as contractors who engaged
Los Serranos Co., and that claimant furnished lumber. The court infers this to have been
adequate, citing Richmond Sanitary Co. v. Franklin, 122 Cal.App. 229, 9 P.2d 855-856, for
the proposition that the harshness of the rule in earlier cases was not being followed in
numerous decisions under 1203, C.C.P.; and Prince v. Hill, 170 Cal. 192, 149 P. 578, 580,
that the statute does not require such literal exactness and rigid adherence to precise form as
the appellants contend. In Jarvis v. Frey, 175 Cal. 687, 166 P. 997, the notice of lien was
held sufficient where it could be reasonably inferred from statement in the notice, to whom
the materials were furnished. Trout v. Siegel, 202 Cal. 706, 262 P. 320, is to similar effect,
and Consolidated Pipe Co. v. Wolski, 211 Cal. 563, 296 P. 277, 278, where it was said:
Liens of mechanics or materialmen will not be held invalid unless they tend to defraud or
fail to impart notice. Hammond Lumber Co. v. Richardson, 94 Cal. App. 119, 270 P. 751,
752, cites Trout v. Siegel, supra, and in discussing the necessity of designating name of
person by whom employed or to whom materials were furnished, says: The purpose of the
claim of lien, as contemplated in the Mechanic's Lien Law, in so far as it concerns the owner
of the property against which the lien is claimed, is to give him constructive notice of the
claimed lien, to inform him as to the nature and extent of the claim, and to facilitate
investigation as to its merits."
of the claim, and to facilitate investigation as to its merits. As early as 1883 Nevada cases
indicated a more liberal view than California cases cited. Malter v. Falcon M. Co., 18 Nev.
209, 2 P. 50, said that the act was to be liberally construed, that the spirit and purpose of the
law is to do substantial justice to all parties who may be affected by its provisions, and courts
should avoid unfriendly strictness and mere technicality. Skyrme v. Occidental M. & M. Co.,
8 Nev. 219, 221; Hunter v. Truckee Lodge, 14 Nev. 24, 28; Lonkey v. Wells, 16 Nev. 271,
274. This rule should always be followed where the objections urged serve only to perplex
and embarrass a remedy intended to be simple and summary, though as pointed out by
appellants to the court then, in sustaining judgment on demurrer in the lower court, found no
direct, unequivocal allegation of name of owner, again reverting to strictness of early
California cases, citing Hooper v. Flood, supra. Under authority of this very case Milner v.
Shuey, 57 Nev. 159, 60 P.2d 604, tried on stipulated statement of facts held that naming of
partnership as employer in the lien, and one Hagg, in the stipulation of statement of facts, was
not such substantial (material) variance as to defeat the lien under 3739. Though not
applicable here, the court held that terms, time given and conditions of contract, need not be
stated in lien where none exist, citing Lamb v. Goldfield Lucky Boy M. Co., 37 Nev. 9, 138
P. 902. For liberal construction of pleadings and notice: The general principle upon which
the statute relative to mechanics' liens is grounded being broad, it follows that it was never
intended that provisions of the law should furnish a snare and involve claimants in intricacies
of pleading. Hence, while there must be a substantial compliance with the essential
requisites of the statute, such pleadings and notices as the law requires should be liberally
construed in order that justice might be promoted and the desired object might be effected.
* * * Courts will not give the statute such a narrow or technical construction as to fritter
away, impede, or destroy the right of the lien claimant."
the right of the lien claimant. As a general rule a mistake in the statement as to the name of
the person with whom plaintiff contracted or by whom he was employed will not defeat the
lien, where there was no intention to deceive and no one has been misled to his detriment.
Such liens should be liberally construed with a view to effect their objects and promote
justice. Nor will it be presumed in absence of evidence to that effect that any one was misled,
Hammond Lumber Co. v. Richardson, supra; and Trout v. Siegel, supra; and Winship v.
Holden, 90 Cal.App. 71, 265 P. 265, to the effect that the statute being remedial, should be
liberally construed in furtherance of the purposes for which it is authorized, with regard to
substance rather than form, as the persons for whose benefit the statute was enacted are not
presumed to be versed in matters of pleading, and the notices, which under its provisions they
are authorized to give, have regard to substance rather than form. Tonopah Lumber Co. v.
Nevada Amusement Co., 30 Nev. 445, 97 P. 636, and other Nevada cases there cited, hold the
statute to be remedial and must be liberally construed and that substantial compliance is
sufficient to create a valid lien.
Treating lien A alone without aid of the complaint, it is conceded to be no form to be
followed, as a good example of a good statement of, person by whom plaintiff was hired or
to whom materials were furnished, probably an indication that it was drawn by one not
versed in pleading or in the law of liens. Even had the complaint failed to include a copy of
the lien or defectively alleged the statements therein, the court below might well have been
sustained in holding the statement in said Lien A to have been an honest and adequate
attempt to comply with 3739 requiring statement of * * * name of the owner * * * if known,
also the name of person by whom he was employed * * *, by following the name of the
owner by the name of Christie as lessee of said owner. (Italics ours.) The naming of Christie
is incident to no other statement, not consistent with furnishing materials or labor to a
person other than Christie.
not consistent with furnishing materials or labor to a person other than Christie. If the nature
and extent of the claim could have been readily understood without it, detail is unnecessary.
Johnson v. Smith, supra. In the absence of showing of fraudulent or intentional error or
omission or that one was misled thereby to his detriment, we feel that the lower court could
have been sustained in overruling demurrer, refusing to sustain objection to evidence or
denying motion to strike, as to lien A, if the court there felt it was a necessary inference
from such language in the claim, that the materials were furnished to or claimant was
employed by Christie, although the fact was not directly stated. 57 C.J.S., Mechanics' Liens,
sec. 164, p. 698, note 17; and sec. 169, p. 713, note 93. In this view there is less force in
appellants' contention and citations which hold that the lien may not be aided by pleadings or
extrinsic evidence. With such contention and citations, so far as they apply to the facts in this
case, we do not agree in view of sec. 1 of Mechanics' Lien Law, being 3735, N.C.L.; sec. 9,
3743 N.C.L.; and sec. 5, now 3739, N.C.L.Supp., the latter having been the law of Nevada
since amendment 1911, chap. 160; and decisions thereunder.
5. The only question before us here, however, is whether the court on trial committed error
in Finding VII by finding, * * * and that said lien conformed with the provisions of said laws
of the State of Nevada as to form and contents. It was fully alleged, admitted by answer, and
amply supported by undisputed evidence, That plaintiff furnished material and labor on the
premises at the instance and request of Christie, lessee, * * * on his promise to pay * * *. It
was likewise alleged and admitted, and not controverted by evidence that: Owners were
cognizant of and had notice of installation of electrical work and wiring. Appellants made no
objection below to the sufficiency of Lien A by way of objection to introduction of
evidence thereunder, motion to strike for lack of conformance to statute, or by way of
demurrer.
thereunder, motion to strike for lack of conformance to statute, or by way of demurrer. Their
consent to demurrer being overruled is effective as a withdrawal of the demurrer. 49 C.J. 554,
p. 447, note 29; and 940, p. 663, note 6. Nor does the record or evidence show filing or
posting of nonresponsibility notice under 3743, N.C.L.
6-10. Whether properly or at all denied as heretofore pointed out with reference to P XV of
the complaint this seems an essential finding to support the judgment. Sec. 3739 reads in part:
Upon the trial of any action or suit to foreclose such lien no variance between the lien and
the proof shall defeat the lien or be deemed material unless the same shall result from fraud or
be made intentionally, or shall have misled the adverse party to his prejudice, but in all cases
of immaterial variance the claim of lien may be amended, by amendment duly recorded, to
conform to the proof. Construing this broad statute then, should the finding be varied or
reversed here, in the absence of evidence of fraud or intentional misstatement or omission by
which the adverse party was misled to his prejudice? We think not. The lien and the
complaint should be read and considered together. Friendly v. Larsen, 62 Nev. 135, 144 P.2d
747; Zasucha v. Allen, 56 Nev. 338, 51 P.2d 1029. If there be substantial compliance under
our liberality of construction and substantial compliance rule, such pleadings and notices as
the statute requires should be liberally construed to promote the objects to be effected, and the
statute in this respect should not be construed so technically as to destroy claimant's right of
lien. The theory upon which all labor liens are based is that they are remedial in their nature
and intended to assist the laborer to obtain a just price for his services. Lamb v. Goldfield
Lucky Boy M. Co., supra. Nor will the lien be held invalid where it may reasonably be
inferred, by whom one was employed or to whom he furnished materials. Richmond v.
Franklin, supra, and cases there cited, unless it tends to defraud or fails to impart notice.
cited, unless it tends to defraud or fails to impart notice. Consolidated Pipe Co. v. Wolski,
supra. There is insufficient evidence in the record to warrant a conclusion here that there was
such material variance as to defeat or invalidate the lien.
11, 12. Such findings find further support in sec. 1 of Mechanics' Liens, sec. 3735, N.C.L.,
and sec. 9, sec. 3743, N.C.L. The former provides in part: Every person performing labor
upon, or furnishing material * * * to be used in the construction, alteration or repair of any
building * * * has a lien upon the same for the work or labor done or material furnished * * *
whether done or furnished at the instance of the owner * * * or his agent; * * * and every
contractor, * * * or other persons having charge or control of * * * the construction,
alteration or repair, either in whole or in part, of any building or other improvement, * * *
shall be held to be the agent of the owner, for the purposes of this chapter. The adverse party
could not have been misled by lien's failure to identify which of the two parties named,
employed claimant or to whom he furnished materials, as the property would be subject to
lien in either case under this section. The latter, sec. 9, sec. 3743, reads in part: Every
building or other improvement mentioned in section 1 of this act, constructed upon any lands
with the knowledge of the owner * * *, shall be held to have been constructed at the instance
of such owner * * *, and the interest owned * * * shall be subject to any lien filed in
accordance with the provisions of this section, unless such owner * * * shall, within three
days after * * * knowledge * * * give notice that he will not be responsible for the same, by
posting and filing, as therein provided. Under this section, employment of the labor or
purchase of materials by the owner of the building or his agent is not necessary to the
attaching of lien rights on the part of the laborer or the person who furnished materials. If the
owner has knowledge of the same, lien rights are deemed to attach unless the required
notice is given.
rights are deemed to attach unless the required notice is given. Nichols v. Levy, 55 Nev. 310,
32 P.2d 120; Gould v. Wise, 18 Nev. 253, 3 P. 30, 31; and Rosina v. Trowbridge, 20 Nev.
105, 17 P. 751. Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933, imposes mandatory
active duty of strict compliance upon the owner if he would be relieved of responsibility
under this section, and holds that by failure in compliance he is estopped to deny the authority
of his tenant or other person authorizing the improvements, because of which the property
must be held subject to lien. Nichols v. Levy, supra, to the same effect. This section must be
strictly complied with. George v. Wentworth, 56 Nev. 380, 53 P.2d 1193, 1194, stating: It is
clearly mandatory, and while designed to establish a rule of evidence, was also intended to
impose an additional requirement upon an owner in order to exempt his property from the
effect of a lien claim [duly filed].
13, 14. Correlatively, the complaint might have been amended on proper motion to
conform to the proof, the provision for amendment being very broad under 3739 above,
where there is no evidence that variance resulted from fraud, or was intentional, or that
defendant was misled to his prejudice. Nellis v. Johnson, 57 Nev. 17, 18, 53 P.2d 1192, 57
P.2d 392; or where a third party has not intervened, Riverside Fixture Co. v. Quigley, 35 Nev.
17, 126 P. 545, in which an amendment as to the description was approved. To the same
effect as to misstatement of name, Milner v. Shuey, supra. Nor will failure to amend avail
appellant as the provision is directory merely.
As to the Sharpe matter under lien D, paragraphs IX and X of the complaint are
substantially in the language under A except as to amount, $382.70. Here the answer and
separate defense admit Paragraph IX except to deny as to this and Paragraph X, that any labor
or materials were furnished after April 23, 1947, that the amount should have been more than
$200, deny Paragraph XV as above as to legality of Lien "D," and aver that performance
after April 23 was of trifling items omitted, or to repair poor or inferior workmanship, and
so forth, admitting as above that lien "D" was filed August 23, 1947.
Paragraph XV as above as to legality of Lien D, and aver that performance after April 23
was of trifling items omitted, or to repair poor or inferior workmanship, and so forth,
admitting as above that lien D was filed August 23, 1947. We find nothing in the record to
warrant variance of findings as to amount due, due date as of May 26, 1947, that this was the
last date on which labor or materials were furnished, or that filing was within the statutory
period.
As to the second and third contentions of appellants, the trivial nature of the work on
claimed date of completion and that labor was not performed on the building, the evidence is
to the effect that Roberts Roofing Company, because of lack of materials, was delayed in
laying tile and did not complete this until June 10, that respondents Sharpe could not varnish
the top and front of counter until some of this work was completed according to Allen
Sharpe, and Claude Fogel, painter and employee of Sharpe Company, testified: Q. * * *
what was the reason for the lapse of time between April 23rd and the 26th of May, when you
did the last work? A. When we were working on the job and had the job about completed,
Roberts Flooring came in to lay the floor tile and they started down in this one corner which
eliminated us from getting down in that corner to finish. They spread their cement for their
asphalt tile and we had to stay off of that, and then I made numerous trips back there to pick
up this amount of work to be varnished here, and every time I went down there, being
varnish, we couldn't have any dirt or dust around, and they were cleaning up trying to get
open for business and Christie himself told me to leave it go for a while, until we get rid of
this dirt. Q. Was the 26th of May the first day that you could get in there to do this painting?
A. That is the firstwhen he said all right, I went ahead and did it that day.
It is true that not more than thirty square feet of varnishing was done in a period of not
more than a half hour, according to testimony, on the top and face, of some item to be
used in connection with a restaurant or cafe, as indicated by the name of the place,
Christie's Finer Foods.
hour, according to testimony, on the top and face, of some item to be used in connection with
a restaurant or cafe, as indicated by the name of the place, Christie's Finer Foods. On the
other hand it does not appear from the evidence that it is a readily removable item, as
contended by appellants. It is true, there was mention of a counter, but no evidence as to
whether affixed or otherwise. Attorney for appellants cross-examining Mr. Fogel asked: Q.
Did you actually varnish the top of the counter or isn't the top of the counter linoleum? A. If
you know the place maybe I can describe it to you better. It is from the window that runs
along Ogden Street back to the counter, and that is flat on top, about a foot or fourteen inches
wide, and hooks on to the counter at that point, and it is varnished down to the face and
varnished on top.
15, 16. Even if it were a counter, we think it is not conclusive that same might have been
removed without damage to the building or to the counter itself, or that same was not
intended to become a fixture in view of the business here contemplated, as to become a
nonlienable item to the extent of defeating a lien otherwise maintainable. It may, we think,
have been intended to be a part of improvement to the building, in contemplation of the
business to be conducted there. If so it became a fixture, for our purposes here. David G.
Janes Co. v. Weed, 214 Wis. 402, 253 N.W. 181. A bar or counter in a place where liquor is
sold was held to be a fixture under National Prohibition Act, 27 U.S.C.A. sec. 1 et seq.
United States v. Myers, 125 Misc. 566, 211 N.Y.S. 465. Whenever chattels have been placed
in and annexed to a building by their owner as a part of the means by which to carry out the
purposes for which the building was erected or to which it has been adapted, and with the
intention of permanently increasing its value for the use to which it is devoted they become
fixtures, Knickerbocker Trust Co. v. Penn Cordage Co., 66 N.J.Eq. 305, 58 A. 409, 105
Am.St.Rep. 640, as between owner and mortgagee, and we fail to distinguish the case
from that of lienee and lienor.
owner and mortgagee, and we fail to distinguish the case from that of lienee and lienor.
17-20. As to the contention that the last items were trivia or items omitted or repairing
defects or inferior workmanship, we find no evidence to sustain the latter two contentions. If
they were part of or incident to a continuing contract or a contract as a whole, the contention
of appellants cannot prevail. It appears that work and materials as indicated by Exhibits J,
K, L, and M were furnished from time to time under a cost plus contract with Christie,
as testified to by Allen Sharpe. There seems to have been no unreasonable, unnecessary or
unjustified delay in furnishing work or materials under the understanding here, that same
should continue until the varnishing and painting were done. It is a continuing contract with a
sufficiently continuous compliance therewith. Under such conditions it would appear that the
claimant could not have filed a lien claiming April 23 as date of completion or substantial
compliance, unless the owner had given notice of completion under 3739, as amended, chap.
94, p. 133, Statutes 1941, providing in part: The owner may within ten days after the
completion of any contract of work of improvement provided for in this act * * * file * * *
notice * * *. And, in case such notice be not so filed, then all persons claiming the benefit
of this act, shall have ninety days after the completion of said work of improvement within
which to file their claims of lien. The phrase work of improvement' and the word
improvement' as used in this act are each hereby defined to mean the entire structure or
scheme of improvement as a whole. Even where done under separate contracts, if the work is
continuous the lien is preserved by giving notice within ninety days after the work is
completed. Capron v. Strout, 11 Nev. 304; Skyrme v. Occidental M. & M. Co., supra.
Tonopah Lumber Co. v. Nevada A. Co., above, justifies a referee in sustaining continuity
under building contract, where work was resumed April 27 after discontinuance on February
15 where plaintiff was not responsible for cessation, was never ordered to cease
furnishing material, and had no notice of intention not to complete the building.
February 15 where plaintiff was not responsible for cessation, was never ordered to cease
furnishing material, and had no notice of intention not to complete the building. If an owner
intentionally leads claimant to believe the building is not completed, or that the work was
required under the contract, and claimant relies upon such representation, the owner is
estopped to assert that the contract was already completed. Baird v. Havas, 72 Cal.App.2d
791, 164 P.2d 952; Shea v. Graves, 142 Or. 503, 19 P.2d 406; Hubbard v. Lee, 6 Cal.App.
602, 92 P. 744. In Tonopah Lumber Co. case [30 Nev. 445, 97 P. 638] it was said: And, in
consonance with its repeated decisions, this court will not vary a finding of fact where there is
substantial evidence to support it. Same in Friendly v. Larsen above and cases there cited; or
where evidence is conflicting, Paterson v. Condos, 55 Nev. 134, 28 P.2d 499.
21, 22. As to each point raised we are unable to hold that the court's finding of substantial
compliance is without substantial support in the evidence. Nor do we find error in allowing as
part of the costs $600 as a reasonable attorney fee. The amount which may be allowed under
statutes such as ours, as attorney fees, rests in the sound discretion of the trial court, taking
into consideration the amount involved, the character of the services rendered, and the time
employed. If there is substantial evidence to support the allowance it will not be disturbed,
and the statutory discretion in fixing the allowance will not be interfered with if it does not
appear to have been abused. 57 C.J.S., Mechanics Liens, sec. 353, notes 4 to 7, inclusive;
Friendly v. Larsen and Milner v. Shuey, supra; Quint v. Ophir M. Co., 4 Nev. 304, to the
effect that time employed means, not the time immediately devoted to the business alone, but
the time which he must lose from other business. Here the record, minutes of the court and
papers filed show a great deal of time and work devoted to the case, appearances on
demurrer, motion to make more certain, demand for bills of particulars, furnishing bills and
amendments, the trial itself, and opening and reply briefs.
amendments, the trial itself, and opening and reply briefs. We think it was not arbitrary or an
abuse of discretion to allow not the $1,000 requested, but $600 on the sum of $2,236.56
recovered.
No substantial error appearing the order and judgment appealed from are hereby affirmed.
Badt and Eather, JJ., concur in the result.
Chief Justice Horsey having been absent due to illness the Governor designated the
Honorable Harry Watson, District Judge, to sit in his stead in this case.
____________
66 Nev. 380, 380 (1949) State v. Merritt
STATE OF NEVADA, Respondent, v. NATHAN
L. MERRITT, JR., Appellant.
No. 3547
December 12, 1949. 212 P.2d 706.
1. Criminal Law.
If there is any other substantial error necessitating a new trial, supreme court should avoid any
indication which might influence jury in determining the sufficiency of the evidence.
2. Criminal Law.
A view is permitted to enable members of jury to see or inspect a place or scene and inanimate
objects or other things then and there existing in order that jury may visualize and perhaps more clearly
understand the facts involved, and such a view is never for the purpose of evidence as such, and evidence
must not be permitted during a view. N.C.L.1929, secs. 10921, 10989.
3. Criminal Law.
In prosecution for larceny, ordering jury in absence of defendant and his counsel to go to a corral to
inspect a cow, on which defendant had allegedly superimposed his own brand over that of owner, was
improper under statute permitting a view and constituted reversible error, since it involved the taking of
evidence out of court and deprived defendant of constitutional rights of confrontation and
cross-examination. N.C.L.1929, secs. 10921, 10989; U.S.C.A.Const. Amend. 5.
4. Criminal Law.
Demonstrative or real evidence or evidence by inspection is such evidence as is addressed
directly to the senses of court or jury without the intervention of the testimony of witnesses, as where
various things are exhibited in open court.
5. Criminal Law.
Only in a trial by court of general jurisdiction authorized to hear and determine criminal cases may
evidence, such as exhibition to jury of allegedly stolen cow displaying altered brand, be introduced.
N.C.L.1929, sec. 10921; U.S.C.A.Const. Amend. 5.
6. Criminal Law.
Under statute defendant and his counsel must be present throughout trial of a felony case and the
presence of defendant cannot be dispensed with. N.C.L.1929,sec. 10921.
7. Criminal Law. Witnesses.
One accused of crime is entitled under constitution to be confronted by the witnesses against him and
to cross-examine them. U.S.C.A.Const. Amend. 5.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Nathan L. Merritt, Jr. was convicted of grand larceny, and he appeals. Judgment and
order denying new trial reversed, the cause remanded, and a new trial ordered.
Royal A. Stewart and Emile J. Gezelin, Associate Counsel, both of Reno, for Appellant.
Alan Bible, Attorney General, Homer Mooney, Geo. P. Annand and Robert L. McDonald,
Deputy Attorneys General, James W. Johnson, Jr., District Attorney of Churchill County, and
A. Loring Primeaux, Associate Counsel, of Fallon, for Respondent.
OPINION
The appellant will be referred to in this opinion as the defendant, as in the lower court.
The defendant, Nathan L. Merritt, Jr., has appealed from the judgment and from an order
denying his motion for a new trial.
The defendant, by the verdict of the jury, was found guilty of the crime of grand larceny,
upon the conclusion of the trial, on the 13th day of July, 1948, in the First judicial district
court of the State of Nevada, in and for the county of Churchill.
judicial district court of the State of Nevada, in and for the county of Churchill.
The offense upon which the defendant was convicted is contained in count 3 of the
information, filed May 10, 1948, in said district court, and is as follows:
Count (3) Did then and there, wilfully, unlawfully, and feloniously mark and brand and
alter and deface a mark and brand then and there existing upon one (1) black (white-faced)
bovine cow, not their own property nor the property of either of them, but belonging to and
being the property of Walter L. Nygren, with the intent thereby to prevent the identification
thereof by the true owner.
On May 25, 1948, in connection with the arraignment before the district court, and upon
the request of the district attorney that the charge against the defendant, William O. Sizemore,
be dismissed or discharged in order that he might be enabled to testify for the state, such
order of dismissal or discharge as to Sizemore was granted.
Upon the defendant, Nathan L. Merritt, Jr., having, as aforesaid, been convicted, upon the
completion of the trial in the district court on the 13th day of July, 1948, and further
proceedings having been had, including the denial of a new trial, the said defendant was, on
July 27, 1948, sentenced by said court to be committed to the state penitentiary at Carson
City, Nevada, for a period of not less than one year nor more than fourteen years.
The defendant's notice of intention to move for a new trial, upon the denial of which, on
July 27, 1948, the defendant's notice of appeal was predicated, contained the following
grounds:
I
That the Court has misdirected the Jury in matters of law.
II
That the Court has erred in decisions of questions of law arising during the course of the
trial.
III
That the verdict is contrary to law, and that the verdict is contrary to the evidence.
IV
That new evidence has been discovered material to the Defendant, and which he could
not, with reasonable diligence, have discovered and procured at the trial.
V
That the Jury has received evidence out of Court other than that resulting from a view, as
provided in Section 341.
This court is particularly concerned as to the assignments of error stated in appellant's
opening brief, and which are as follows:
1. The Court erred in ordering the jury to go to Kerns Corral, located near Fallon, which
is not a place in which the offense is charged to have been committed, or in which any other
material fact occurred,' to inspect a black, white-faced cow which had allegedly been branded
with an M-Swastika brand at Job's Canyon in Dixie Valley in the County of Churchill on or
about the 3rd day of March, 1948, by the defendant and the accomplice, William O.
Sizemore. Said inspection by the jury was made without the presence of the defendant or his
counsel.
2. That by ordering the jury to examine a cow with an altered brand in a slaughterhouse in
the absence of the accused where no part of the offense charged was committed and where no
material fact occurred, the accused was denied his liberty without due process of law in
violation of Sec. 1 of the Fourteenth Amendment to the Constitution of the United States of
America.
3. That the evidence is insufficient to justify the verdict and that the verdict is contrary to
law.
In order to consider properly the matters, both of law and of fact, involved in the
specifications of errors, it seems advisable to relate some of the facts and circumstances
which appear from the testimony.
seems advisable to relate some of the facts and circumstances which appear from the
testimony.
Defendant operated a small cattle ranch, which had been homesteaded by his father, about
seventy miles from Fallon, Nevada. The father became an invalid, and defendant operated the
holdings and took care of the family. The defendant was in the army of the United States
during World War II, was overseas part of the time, and, upon his service being concluded,
was accorded an honorable discharge, on March 8, 1946. After his discharge and return to
Fallon, the defendant resumed his ranching operations, and bought approximately forty head
of cattle to restock the herds, which had been depleted during his army service. The defendant
increased his cattle to ninety head, approximately, brought about by leasing about fifty head
from one Ralph Smith. Under such arrangement between Smith and the defendant, Merritt
furnished the ranch and the grazing fees, and Smith furnished the cows and bulls. From the
lease agreement or arrangement, the increase in the herd was split between the parties.
It appears from the testimony of the defendant that he, Merritt, met one William Sizemore
in the fall of 1947, and took him into his home in Dixie Valley, in order to give Sizemore a
place to stay. In payment for his lodging and board, Sizemore helped Merritt in his ranching
operations.
Merritt, in his testimony at the trial, stated, in substance, that at Job's Canyon in Dixie
Valley, where he maintained a small corral, Merritt and Sizemore were then engaged in the
normal ranching operations of branding some of Merritt's calves, on March 3, 1948. Merritt,
in that connection, testified that the branding that day consisted of branding three calves. That
said three calves, and the three cows to which they belonged, were, upon such branding
having been completed, turned out upon the open range. Merritt testified further that there
was a black milch cow in the corral that belonged to Ralph Smith; that it was going fresh,
never having been milched, and that they wanted to haul her down before she had a little
calf; that "if she had a little calf upon the hill it takes quite a while to get them down.
to Ralph Smith; that it was going fresh, never having been milched, and that they wanted to
haul her down before she had a little calf; that if she had a little calf upon the hill it takes
quite a while to get them down. * * * We had one other cow, we kept in the corral with the
milk cow to keep her from getting wild and fussing around because she was heavy with calf.
According to Merritt's testimony, it was after the three calves and the cows were turned out
that the two game wardens drove up and came over to the edge of the wash; they didn't say
who they were.
It does not appear from the testimony that either of the game wardens, Clogston and
Rhodes, said anything in their conversation with Merritt or Sizemore to indicate that any
suspicion was aroused in the minds of said game wardens. Quoting from Mr. Clogston's
testimony:
Q. Did they introduce themselves to you? A. Yes. Mr. Merritt called out, Who are you?',
and we said, We are looking around for a place to plant fish', and he said, My name is
Merritt,' and he said, This is Bill Sizemore.'
Q. Mr. Sizemore was with him at that time? A. That's right. I said, What are you doing?
Are you branding, dehorning and ear-marking?' and he said, Yes.' And I discussed no further
with Mr. Merritt in regard to his business in the corral.
The conversation between Clogston and Rhodes, on the one hand, and Merritt and
Sizemore, on the other, was pleasant and friendly, and after a short visit of ten or fifteen
minutes the game wardens departed.
It may be stated further, from Mr. Clogston's testimony, that the game wardens did not go
down to where the corral was. They were about sixty or eighty feet above it. They did not try
to get down from an embankment to reach the corral, but stood straight across from, and a
few feet above, the corral.
Mr. Clogston, upon returning to Fallon, reported to Dan Evans, a State Fish and Game
Commissioner. Mr.
Evans asked Mr. Clogston what he found (referring to the latter having intended to try to
detect some deer poachers), and Mr. Clogston replied to Mr. Evans: I believe we have
some cattle rustlers.
Mr. Clogston also reported it to Hammie Kent, a rancher out in the Stillwater area, and, on
or about March 6, 1948, to Les Moody and Tom Williams. In his testimony at the trial, Mr.
Clogston, when asked what he had said in describing the black white-faced cow to Mr.
Moody and Mr. Williams, stated: I described the cow to them that her ears had been severely
cut. She had been dehorned. It was a black cow with a white face and I suspicioned the cow
of being rustled.
It was at a time nearly six weeks after the conversation between Mr. Clogston and Mr.
Moody and Mr. Williams, in Mr. Moody's house, on or about March 6, 1948 that Mr.
Williams visited Dixie Valley, doing some riding, and met Mr. Merritt, on April 14, 1948.
In the testimony by Mr. Williams at the trial, he stated, among other things, in substance as
follows:
That he, Mr. Williams, was assigned to Dixie Valley by Mr. Moody, then superintendent
of the Nevada State Police; that he was to make an investigation on cattle rustling; to check
on particular cattle that had brands on over there; that he saw the black white-faced cow in
the corral on April 14, 1948. Mr. Williams further stated that he and Mr. Kent went to the Hot
Springs in Dixie Valley, and found a small bunch of cattle there, and looked that bunch of
cattle over; that the black white-faced cow that he believed to be that which Mr. Clogston had
describedchecked that cow, and he roped her and threw her down, picked the hair away
from the brand so he could make an examination; that the brand on the cow was an M
Swastika brand; that, on examining, he found the N4 brand under the M Swastikastraight
N, open 4; that the M Swastika brand was over it; that he figured the brand was about two
months oldsix weeks to two months old; that the cow had been dehorned not too long
before that, and that the right ear was cropped short and the left ear had a half
undercrop.
dehorned not too long before that, and that the right ear was cropped short and the left ear had
a half undercrop.
Mr. Williams further testified that he left the cow there with the other cattle, that he later
sent a man to gather those cattle and bring them to Fallon; that Irving Sanford, Charlie
McKay and one of the Barclay boys were present with him when he, Williams, roped and
threw the cow; that it was his order that the cow be brought in; that he did not bring the cow
in himself; that he saw the same cow on the 22d day of April, 1948, at Charlie McKay's place,
in the corral, and that he was positive it was the same cow; that on the 23d day of April he
saw her in the corral at Buck Kirn's slaughter-house, and later saw her last Friday and I saw
her today, referring to the time of the trial, July 12, 1948. It may be stated that on the 20th
day of April, 1948, the defendant, Merritt, was arrested, and his bond was set at $3,000 by
Harold Bellinger, justice of the peace of New River Township, Churchill County, Nevada.
From the testimony and the proceedings had, it is apparent that at the time of the trial in
the district court the black white-faced cow in the corral at Buck Kirn's slaughterhouse in
Fallon, Nevada, remained at that place on April 23, 1948, and continued there at least until
after July 13, 1948, the date upon which the trial was completed.
1. Although it is realized that much could be said to the effect that the facts upon which
the evidence is predicated are entirely circumstantial, rather than direct, as to whether or not
the defendant actually branded, or caused to be branded, the black white-faced cow at the
corral in Job's Canyon in Dixie Valley on March 3, 1948, or thereafter, and prior to Mr.
Williams finding the same cow at Hot Springs in Dixie Valley on April 14, 1948, it has not
been our purpose, in quoting certain of the evidence contained in the preceding pages, to
discuss at this point the sufficiency of any material evidence.
evidence. We realize that the evidence is not only circumstantial, as before stated, but very
conflicting as to the several witnesses who have testified at the trial, and, unless it is properly
required, we should not do so at this time if any other serious or substantial error must be
found which would necessitate a new trial. For, in such event, we must, and shall, avoid, in
every respect, any indication which might have any influence upon the minds of the jurors in
their determinations as to the sufficiency of the evidence.
It is, therefore, in this opinion only for the purpose of making sure that the view alleged in
the motion for a new trial and upon the notice of appeal, and in the assignments of errors
developed and elaborated in connection therewith, that we have undertaken to determine as to
whether or not the asserted view which took place in the presence of the jurors during the
trial, at Fallon, on July 12, 1948, in Kirn's corral at the slaughterhouse at Fallon, was such a
view as the law and the constitutional provisions which are applicable reasonably require. It
has been for that purpose and to that end that this justice, in the present opinion, has
particularly endeavored to ascertain whether or not a view such as the proceeding ordered by
the honorable district court in connection with the trial at Fallon, on July 12, 1948, was, or
could be, such a view as the law contemplates, it being solely for the purpose of determining
whether or not such a view may be of the place in which the offense charged against the
defendant in the instant case was committed, or in which any other material fact occurred.
The statutes, at least in many states, have employed either precisely or substantially the
same, or very similar phraseology. Nevada Compiled Laws 1929, Vol. 5, sec. 10989, is as
follows: Sec. 10989. View By Jury.Oath Of Officer Attending. 341. When, in the
opinion of the court, it is proper that the jury should view the place in which the offense is
charged to have been committed, or in which any other material fact occurred, it may order
the jury to be conducted in a body, in the custody of the officer, to the place, which must
be shown to them by a person appointed by the court for that purpose; and the officer
must be sworn to suffer no person to speak or communicate with the jury, nor do so
himself on any subject connected with the trial, and to return them into court without
unnecessary delay, or at a specified time."
committed, or in which any other material fact occurred, it may order the jury to be conducted
in a body, in the custody of the officer, to the place, which must be shown to them by a
person appointed by the court for that purpose; and the officer must be sworn to suffer no
person to speak or communicate with the jury, nor do so himself on any subject connected
with the trial, and to return them into court without unnecessary delay, or at a specified time.
In the instant case, while, on or about March 3, 1948, Merritt and Sizemore were busily
engaged in the branding, ear-marking and dehorning of certain cattle, Clogston, at least, asked
Merritt if he was so engaged, and his answer was, Yes. What Merritt and Sizemore were
doing, at the time, may or may not have been entirely lawful and proper. Merritt, in his
testimony at the trial, said it was lawful. After he had seen the cow at Kirn's corral at Fallon,
Nevada, at the time of the trial, Merritt stated that he had never seen before the black
white-faced cow which had been brought to Fallon from Hot Springs in Dixie Valley, by the
persons sent there by Tom Williams, and which had been found by said Williams to have
been branded prior thereto, and which had subsequently, at Kirn's corral at Fallon, been
identified by Mr. Nygren as his black white-faced cow.
Sizemore, whom the state discharged as an alleged accomplice, in order that he might
testify at the trial, made a sworn statement, in which, among other alleged facts, he stated the
following: The next morning Nate said, Let's go up here. I have some work to do.' We went
up and there was these cows that you have here. Seven of them. He branded six and left one
black one that he didn't work the iron on. There was no calf on that black cow. I took her
down and milked her. The black white-faced cow wasn't in the corral when these wardens
came up. There was this black cow that they took down and the brand wasn't worked, and one
red cow that had the brand worked.
cow that had the brand worked. The others were all worked and were turned out and were out
of the corral when these two men arrived. The white-faced cow was with the other bunch that
had already been worked. These cows all had the N4 brand on them. The black cow was an
N4 cow. Smithy's cow was the cow that we was milking. Mike Casey and Doc Kain. They
hauled these cows out there, and they had the N4 brand on them.
The statement mentioned was made on May 10, 1948, and was included in a counter
affidavit subscribed before John R. Hannifan, county clerk, the 27th day of July, 1948, by Mr.
James W. Johnson, Jr., and presented on the motion for a new trial before the district court,
after Roy A. Stewart, Esq. and defendant, Merritt, had both made affidavits, in effect, on the
same date, July 27, 1948, that R. J. Vannoy, sheriff of Churchill County, in the upstairs
corridor of the Churchill County courthouse, on July 13, 1948, stated that William O.
Sizemore signed a written statement in which he stated on his oath that there was no black,
white-faced cow in the corral at Job's Canyon in Dixie Valley in the County of Churchill, on
the day and at the time that Bruce Clogston and Clayton Ralph Rhodes, both game wardens,
arrived at said corral in search of deer poachers on or about March 6, 1948, as they testified at
the trial; that the said signed statement of William O. Sizemore is on file in the office files of
the District Attorney of Churchill County, James W. Johnson, Jr.
In two other counter affidavits presented at the time of the motion for a new trial, Tom
Williams and James W. Johnson, Jr. each stated that the said William O. Sizemore entered
the office of the district attorney of Churchill County, at a time later than May 10, 1948, the
exact date which is not known to your affiant, and, in their presence, stated: that he was
confused and could not remember exactly whether or not the said black white-faced
cowsubject of this actionwas, or was not, in the corral at the time the game wardens
arrived.
was not, in the corral at the time the game wardens arrived. Under questioning by your
affiant, the said William O. Sizemore stated that at that time, he was excited and to the best of
his recollection, he could not recall what cows were in said corral at the time the said game
wardens arrived on March 3rd, 1948.
It appears, however, that at the trial, which was either shortly after or shortly before the
last Sizemore affidavit, above mentioned, Sizemore's statements of facts were vague,
uncertain, conflicting and contradictory. He was an accomplice, and, after much evidence had
been testified to by the witnesses for the defense at the trial, it appears that his reputation for
truth and honesty was bad. It may have been true, nevertheless, that his evidence, in whole or
in part, was truthful, and it is peculiarly the province of the jury to decide as to the
truthfulness or falsity of his testimony, particularly as to whether or not the certain black
white-faced cow had already been branded, together with the other cows he, Sizemore, had
mentioned, and were, therefore, not in the corral at the time of the presence of Mr. Clogston
and Mr. Rhodes.
It may be stated that sufficient circumstances, as above set forth, were seen by Clogston
and Rhodes at the time they visited the corral, in the presence of Merritt and Sizemore, to
have justified the appearance of suspicious circumstances sufficient to have informed Mr.
Williams thereof. Likewise, Mr. Williams' inspection of the alleged black white-faced cow at
Hot Springs in Dixie Valley, on his visit thereto April 14, 1948, and his detailed examination
as to the facts he actually observed as to the two brands the one superimposed upon the other,
on the cow, together with the confirmation of facts and circumstances which had been
disclosed to him, particularly by Mr. Clogston, were sufficient to have convinced him, at least
to the extent of prima-facie evidence, that an offense had been committed, at or near the time
at which, in the corral at Job's Canyon, the actual branding had occurred.
actual branding had occurred. These facts were sufficient to have justified Mr. Williams to
cause the arrest of the defendant, and his prosecution. And the facts and circumstances within
his knowledge would have been sufficient, together with the cooperation of the district court,
the sheriff, district attorney and the defendant's attorney, to have justified, we believe, suitable
arrangements to have been made for a convenient time at the trial, to have caused a view to
be had at the corral in Job's Canyon in Dixie Valley, about seventy miles from Fallon,
Nevada.
If, however, certain further but conflicting evidence, whether of the state or the defendant,
had been presented, which disclosed that, although certain material facts were shown to have
occurred at the corral in Job's Canyon, the actual branding of the black white-faced cow
appeared, reasonably, to have occurred elsewhere, and at a time prior to the fact, as found by
Mr. Williams, that the branding had actually occurred before his arrival, it would have been
entirely proper to have also arranged for an alternative view, or for even a second place in
which a view could properly have been had. This, necessarily, would have required that either
or both of such proposed views come within the provisions of the statute, and that, within the
discretion of the court, and in its opinion, the proposed view, or views, were proper; and that
the view should be of the place in which the offense is charged to have been committed, or in
which any other material fact occurred.
It is very obvious, however, as to the branding of the black white-faced cow, that, in view
of the evidence in the record, the branding could not properly be deemed to have occurred at
Kirn's corral at Fallon. This could only be deemed to have been reasonably probable if there
had been some evidence in the record indicating that the Nygren, black white-faced cow,
which is alleged to have been illegally branded by the defendant, could reasonably have been
deemed to have been taken by the defendant, or some other person, from Job's Canyon in
Dixie Valley to Kirn's corral, or in the vicinity near Fallon, and then branded by the
defendant, or at his instigation, and thereafter returned to Job's Canyon in Dixie Valley,
prior to Mr.
defendant, or some other person, from Job's Canyon in Dixie Valley to Kirn's corral, or in the
vicinity near Fallon, and then branded by the defendant, or at his instigation, and thereafter
returned to Job's Canyon in Dixie Valley, prior to Mr. Williams' finding of the fraudulent
brand upon the cow, at Hot Springs in Dixie Valley, and which is disclosed from the evidence
to have been in the near vicinity of the corral in Job's Canyon, in the same Dixie Valley.
There is absolutely no evidence in the case to indicate other than that the cow remained at
Job's Canyon or Hot Springs, in Dixie Valley, during the time from March 3, 1948, until
April 23, 1948, at which time the cow was transported to Kirn's corral, appurtenant to his
slaughterhouse.
2. It has been repeatedly held that a view within the meaning of our statute, N.C.L.1929,
Vol. 5, sec. 10989, and such similar statutes, does not permit evidence as such. A view is
merely permitted to enable the members of a jury to see or inspect a place or scene, which,
generally, includes premises, buildings, structures, apartments or rooms, inanimate objects
existent at such place, or other things then and there existing, and which, in relation to a
criminal offense, serve to enable the jury to visualize and comprehend, and perhaps more
clearly to understand, actual facts and circumstances which are involved. Such a view is
never for the purpose of evidence as such, and must not be permitted during a view, for the
obvious reason that to permit evidence which can only be allowed at a trial, would violate
many of the essentials of a trial, including numerous safeguards which constitutional
guaranties have assured, and which are among the most cherished of our Anglo-Saxon
institutions.
So serious was the problem considered, in 1934, that the United States Supreme Court, in
Snyder v. Massachusetts, 291 U.S. 97, 138, 54 S.Ct. 330, 78 L.Ed. 674, 695, 90 A.L.R. 575,
rendered both majority and minority opinions, which were participated in by the very learned
justices of that court during such period.
justices of that court during such period. The majority opinion, written by Mr. Justice
Cardozo, was concurred in by four other justices, whilst the minority opinion was written by
Mr. Justice Roberts, who recently retired from the court, and was concurred in by three of the
other justices, Messrs. Brandeis, Sutherland and Butler. The four justices in the minority were
considered, very generally, to be among the abler of the members of the court. In the murder
case involved in Snyder v. Massachusetts, supra, an attendant at a gasoline station at
Somerville, Massachusetts, was shot to death. From the opinion by Mr. Justice Cardozo,
certain language is quoted, 291 U.S. 102, 103, 54 S.Ct. 331, 78 L.Ed. 676, 90 A.L.R. 577,
578, as follows:
Three men, Garrick, Donnellon, and the petitioner, Snyder, joined in the murder and in
the attempted robbery that led to it. Garrick confessed to his part in the crime and became a
witness for the state. Donnellon and Snyder were tried together, and sentenced to be put to
death. The jury found upon abundant evidence that the guilt of each had been established
beyond a reasonable doubt. At the trial and on appeal Snyder made the claim that through the
refusal of the trial judge to permit him to be present at a view there had been a denial of due
process of law under the Fourteenth Amendment of the Constitution of the United States. The
Supreme Judicial Court of Massachusetts affirmed the conviction. [282 Mass. 401] 185 N.E.
376. A writ of certiorari brings the case here.
At the opening of the trial there was a motion by the commonwealth that the jury be
directed to view the scene of the crime. This motion was granted. In granting it the court
acted under a Massachusetts statute which provides: The court may order a view by a jury
impanelled to try a criminal case.' General Laws (Ter.Ed.) of Massachusetts, c. 234, 35. The
court appointed counsel for Donnellon and for Snyder to represent their respective clients at
the place to be viewed.
Counsel for Donnellon moved that he be permitted to go there with his client after the view,
but did not ask that his client be present with the jury. The court stated that such an order
would probably be made. Counsel for Snyder moved that his client be permitted to view the
scene with the jury, invoking the protection of the Federal Constitution. (Italics ours.) This
motion was denied. The jurors were then placed in charge of bailiffs duly sworn.
Accompanied by these bailiffs and also by the judge, the court stenographer, the district
attorney, and the counsel for the defendants, they went forth to make their view.
The first stopping place was at the filling station, 13 Somerville avenue. Entering the
station, the district attorney pointed out to the jurors the particular parts of the building that he
wished them to observe. He asked them to note the window at the rear, its position with
reference to the entrance, the position of other windows to the right, the size of the room, the
angle made by a partition, and the location of other objects. * * *
After the completion of the view, the group returned to the courthouse and the trial went
on. In charging the jury the judge said, Now what have you before you on which to form
your judgment and to render your finding and your verdict? The view, the testimony given by
the witnesses and the exhibits comprise the evidence that is before you.' The question in this
court is whether a view in the absence of a defendant who has made demand that he be
present is a denial of due process under the Fourteenth Amendment. * * *
And, in the opinion by Mr. Justice Cardozo in 291 U.S. 105 and, particularly, on page 107,
54 S.Ct. on page 332, 78 L.Ed. on page 678, and in 90 A.L.R. on pages 579 and 580, it is
severally stated as follows:
We assume in aid of the petitioner that in a prosecution for a felony the defendant has the
privilege under the Fourteenth Amendment to be present in his own person whenever his
presence has a relation, reasonably substantial, to the fullness of his opportunity to defend
against the charge.
substantial, to the fullness of his opportunity to defend against the charge. * * *
* * * Nowhere in the decisions of this court is there a dictum, and still less a ruling, that
the Fourteenth Amendment assures the privilege of presence when presence would be
useless, or the benefit but a shadow.
In other words, the majority opinion, as expressed by Mr. Justice Cardozo, recognizes the
fact, as repeatedly stated by the supreme judicial court of Massachusetts, that inanimate
objects present and connected with the place and scene of a criminal offense would,
necessarily, be perceived by the jurors, but that such evidence alone was merely incidental to
the view, and would not become evidence until regularly and factually introduced before a
competent court and admitted at a trial.
On the other hand, Mr. Justice Roberts, in discussing, very ably, in his opinion, numerous
phases of the view involved, among other expressions, stated, on page 134 of 291 U.S., on
page 343 of 54 S.Ct., on page 693 of 78 L.Ed., and on page 595 of A.L.R., the following: If,
then, a view of the premises where crime is alleged to have been committed is a part of the
process of submission of data to the triers of fact, upon which judgment is to be founded; if
the knowledge thereby gained is to play its part with oral testimony and written evidence in
striking the balance between the state and the prisoner, it is a part of the trial. If this is true,
the Constitution secures the accused's presence. In this conclusion all the courts, save those
of Massachusetts, agree. (Italics ours.)
The foregoing views of the majority and of the minority of the members of the United
States Supreme Court, relative to permitting a view of premises in connection with which a
criminal offense has been charged, are dependent, respectively, upon whether or not, in
connection with such a view as authorized by statute, evidence in the legal sense has been
permitted to occur in viewing such premises.
such premises. At a view in the proper legal sense, it is universally agreed that no statements,
conversations or comments, from either the jurors conducted to a view by order of court, or
by any other person, may be permitted. The two different and respective theories of the
majority and of the minority in Snyder v. Massachusetts, supra, occasioned difficulty only
because of the fact that, in connection with the place in which the offense had been
committed, certain physical objects and characteristics, constituting part of such place, may
be seen, heard or perceived by the jurors, and which may occur, for the limited purpose of
such view, without being deemed, itself, evidence. The view of the majority, and that of many
states, including that in relation to our own statute, sec. 10989, N.C.L.1929, Vol. 5,
considered such a view to be only incidental, whilst the theory, as above stated, on the part of
the minority in Snyder v. Massachusetts, supra, earnestly contended that the extent to which
such physical objects, their environment and characteristics, necessarily involved more; that
the seeing, hearing and perceiving of such objects and characteristics, forming part of the
view, necessarily constituted evidence, being a material part thereof, and could not, without
the presence of the defendant, be deemed a view; that vitally important constitutional
guaranties would be violated by such proceedings.
For the purpose of the black white-faced cow involved in the instant case, State v. Merritt,
no such situation is involved. In Snyder v. Massachusetts, supra, the statute permitted a view
only because a criminal offense had occurred in a certain place in Massachusetts. Both of the
opinions in that case were predicated upon the fact that the offense, namely the death of the
deceased, had occurred at such place in Somerville, in the State of Massachusetts, and that
the view was held there. Our statute defines a view as being a place in which the offense is
charged to have been committed, or in which any other material fact occurred. The view in
the instant case did not occur in Job's Canyon, Dixie Valley, or any other place near by, but
in a place about seventy miles away, in the Kirn corral at Fallon, Nevada.
instant case did not occur in Job's Canyon, Dixie Valley, or any other place near by, but in a
place about seventy miles away, in the Kirn corral at Fallon, Nevada.
The cases in Nevada are in accord in making clear the distinction between permitting a
view at the place in which the offense is charged to have been committed, or in which any
other material fact occurred, and permitting a view at which evidence only was presented.
In State of Nevada v. Lopez, 15 Nev. 407, the place of the view, held on the order of the
district court and to which the jury was conducted by the proper officer, was the place in
which the offense had been charged to have been committed and in which material facts
occurred. It was fully established, however, that in connection with the view one Chris.
Walsh had made certain comments, explanations and statements in the presence of the jurors.
Mr. Chief Justice Beatty, in his opinion as reported on page 412 of 15 Nev., stated:
It appears by the affidavits, that when the jury arrived at the premises they were sent to
inspect, they found there a person named Chris. Walsh, who was never even sworn as a
witness in the case, and who, in response to questions addressed to him by members of the
jury, pointed out to them all the special features of the premises.
We do not see how it is possible to say that this was not a violation of the law, and a
denial of the right of the defendant to be confronted with the witnesses against him. Indeed, it
is not seriously denied that the jury received evidence out of court other than that resulting
from a view,' etc., but it is contended that Walsh told them nothing more than
otherswitnesseshad told them, and that the defendant could not have been injured.
Of course, if it can be made clear that no injury resulted to the defendant from the act
complained of, the error is cured. But when it is shown that a clear legal right of the
defendant in a criminal case has been transgressed, it devolves upon the state to prove that
he was not harmed thereby, and in this case we think such proof is wanting."
transgressed, it devolves upon the state to prove that he was not harmed thereby, and in this
case we think such proof is wanting.
The other two cases in Nevada which are in point are State v. Hartley, 22 Nev. 342, 40 P.
372, 28 L.R.A. 33, and State v. Clarke, 48 Nev. 134, 228 P. 582. In each of these cases there
were no material errors, and the cases each were affirmed. In each of the cases the court
below had held the view involved in the case proper. The supreme court affirmed, because
the view was sanctioned, in accordance with the statute. The view occurred, in each instance,
at a place in which the offense was charged to have been committed or in which material
facts occurred. The view was not, in any proper or legal sense, evidence, except as to the case
of State v. Lopez, supra, and that constituted evidence only as to such conversations or
comments.
It is believed that the case of State v. Main, 37 Idaho 449, 216 P. 731, is very much in
point when compared to the instant case. In the opinion, on page 734 of 216 P., it is stated as
follows:
On order of the trial court the jury inspected a certain sheep, claimed to be one of the
sheep which were alleged to have been stolen by appellant, and which was at the time in a
barn near the courthouse. Certain witnesses for the prosecution testified that this sheep
originally bore a brand known as the bucketbail brand, which was put on with black paint,
and that after appellant secured possession of the sheep, he attempted to efface the bucketbail
brand, and branded the sheep with the letter O' in green paint, placing it over the bucketbail.
Appellant and his witnesses testified that be bought the sheep which were the subject-matter
of the controversy, including the one which was inspected by the jury, from one H. H. Main,
and denied that he altered the brand. If he did alter the brand, it was, of course, a very
suspicious circumstance. The affidavits show that, upon the inspection, one of the jurymen
pressed back the wool of the sheep with his hands, evidently attempting to discover
whether the brand had been altered, and then nodded his head knowingly to the other
jurymen.
of the sheep with his hands, evidently attempting to discover whether the brand had been
altered, and then nodded his head knowingly to the other jurymen. Something like a year had
elapsed between the time of the alleged offense and the trial, and in the meantime the sheep
had been shorn. We are satisfied that the jury were influenced by what transpired at the time
of the inspection of the sheep. A view by the jury of the subject-matter of the controversy is
entirely a matter of statute. Our statute provides:
C.S. 8964. When, in the opinion of the court, it is proper that the jury should view the
place in which the offense is charged to have been committed, or in which any other material
fact occurred, it may order the jury to be conducted in a body, in the custody of the sheriff, to
the place, which must be shown to them by a person appointed by the court for that purpose.
* * *'
According to the weight of authority construing similar statutes, it is error to permit the
jury to view anything but the place in which material facts occur. It is error to permit them to
view objects which can be introduced in evidence, and specifically, to view animate objects.
State v. Landry, 29 Mont. 218, 74 P. 418; People v. Fitzpatrick, 80 Cal. 538, 22 P. 215;
People v. Fagan, 99 Cal. XVIII, [4 Cal.Unrep. 87] 33 P. 846; Hays v. Territory, 7 Okl. 15, 54
P. 300. The purpose of the statute is not to permit the taking of evidence out of court, but
simply to permit the jury to view the place where the transaction is shown to have occurred,
in order that they may better understand the evidence which has been introduced. The
viewing of objects which can be introduced in evidence, and especially the performing of
experiments by the jury, constitute the taking of evidence, which is never permitted other than
in the regular way upon the trial. People v. Conkling, 111 Cal. 616, 44 P. 314. We conclude
that it was error for the court to permit the jury to inspect this sheep in the way in which it
was done, and we are satisfied that the jury were influenced thereby.
the jury were influenced thereby. The Attorney General contends that the error, if any, was
not prejudicial because appellant himself admitted that the sheep inspected was one which he
had in his possession, and one which the prosecuting witness claimed was stolen from him.
However, the damaging thing about the inspection of the sheep was that the jury evidently
concluded therefrom that appellant had endeavored to efface the original brand and had
superimposed his own brand upon it, which he denied doing. For the jury to take evidence
outside of court in regard to this very material matter was prejudicial.
3. Other cases which are of some importance upon certain phases of the principles
applicable to the facts and matters of law in the instant case, are: State v. Fagan, 4 Cal.Unrep.
87, 33 P. 846, and State v. Landry, 29 Mont. 218, 74 P. 418. It is not possible to justify the
view, so-called, which occurred at Kirn's corral, appurtenant to his slaughterhouse, on the
outskirts of Fallon, Nevada.
The lower court had stated: I apprehend that counsel are going to make the request that
the jury go to the Kirn corral sometime during the progress of the trial. Mr. Sheriff, you will
make arrangements during the recess and between now and tomorrow morning to take the
jury to the Kirn corral without the presence of other persons. * * * At the corral you'll observe
the cattle that are in the corral. (Transcript of proceedings, Vol. 2, p. 139.)
The instant case is very similar, indeed, to State v. Main, supra. In that case, in Idaho, the
sheep, as stated by the portion of the opinion above quoted was, at the time of the alleged
view, in a barn, but not within the courthouse itself, where the trial was being held. Such view
was neither at the place in which material facts had occurred, nor was it within the courthouse
proper. That court, as hereinbefore quoted at greater length, clearly and unequivocally stated:
It is error to permit them to view objects which can be introduced in evidence, and
specifically, to view animate objects.
to view objects which can be introduced in evidence, and specifically, to view animate
objects. State v. Landry, 29 Mont. 218, 74 P. 418; People v. Fitzpatrick, 80 Cal. 538, 22 P.
215; People v. Fagan, 99 Cal. XVIII, [4 Cal. Unrep. 87] 33 P. 846; Hays v. Territory, 7 Okl.
15, 54 P. 300. The purpose of the statute is not to permit the taking of evidence out of court,
but simply to permit the jury to view the place where the transaction is shown to have
occurred, in order that they may the better understand the evidence which has been
introduced. The viewing of objects which can be introduced in evidence, and especially the
performing of experiments by the jury, constitute the taking of evidence, which is never
permitted other than in the regular way upon the trial. (Italics ours.) People v. Conkling, 111
Cal. 616, 44 P. 314. We conclude that it was error for the court to permit the jury to inspect
this sheep in the way in which it was done, and we are satisfied that the jury were influenced
thereby. * * * For the jury to take evidence outside of court in regard to this very material
matter was prejudicial.
4. In 32 C.J.S., Evidence, sec. 601, page 454, it is stated that: Demonstrative or real
evidence, or evidence by inspection, is such evidence as is addressed directly to the senses of
the court or jury without the intervention of the testimony of witnesses, as where various
things are exhibited in open court. (Quoted from page 17 of the opening brief of appellant.)
In the instant case, as to the black white-faced cow above mentioned, it may be that no
jurors indulged in experiments similar to that involved in the inspection of the sheep referred
to in State v. Main, supra, in which the wool of the sheep was, by a juror, combed back and
parted, and such juror nodded his head knowingly to the other jurors. As to such acts as to
the black white-faced cow we have no knowledge. But, in the absence of the court and
respective counsel, and of the defendant, some such experiments or examination would be
quite possible, and it needs little speculation to surmise that it could be entirely probable.
possible, and it needs little speculation to surmise that it could be entirely probable.
It is true that, unfortunately, an animal such as a cow could not feasibly or practicably be
brought into the court room, and, by autoptic proference, so to speak, be introduced and
admitted in evidence. It is, however, only because such an unwieldly object as a cow could
not be so introduced and admitted. The proper, and apparently the only alternative reasonably
practicable would have been for the state in the case at bar, in the lower court, to have
contented itself with the introduction and admission of photographs, if properly identified and
sufficient foundation had been established, and thus to have been enabled to bring in and,
perhaps, more fully to have developed, with those photographs, the pertinent facts as to the
particular brands on the said cow, the one superimposed upon the other. Under such
circumstances, at the regular trial the defendant and his attorneys would not have been
prevented, by proper cross-examination, from inspecting the photographic evidence by
examining into the various features of the brands upon the cow, and to have thoroughly
investigated and definitely delved into the brands and their physical appearances and their
reasonably probable effects. Also, it is entirely reasonable to believe that had the plan for
arranging for a view been abandoned, or not entertained, a more thorough description and
recitation of all pertinent features as to evidence of the physical brands and appearances upon
the cow in question may have been possible.
5, 6. In any event, certain well-settled requirements involving important constitutional
questions cannot be dispensed with. Only in a trial of general jurisdiction authorized to hear
and determine criminal cases may evidence such as was involved as to the black white-faced
cow in question, be had. Proper procedure, under such circumstances, necessitated a trial, as
distinguished from a view, and only such procedure in regard to said cow could have been
had.
could have been had. By dispensing with a trial in the instant case, and permitting a view,
neither the defendant, nor his attorney, was present. The statute, N.C.L. 1929, Vol. 5, sec.
10921, provides: If the prosecution be for a felony, the defendant must be personally present
at the trial. Under the statute, the presence of the defendant, in a felony case, cannot be
dispensed with, and by reason of the requirements of due process, both the defendant's
presence and that of his counsel, throughout such a trial, must be had.
7. Among the great constitutional rights and privileges conferred upon an individual
accused of a crime is that of confrontation. The defendant at such a trial must be actually
confronted by the witnesses testifying against him. That right is guaranteed in federal courts
by the Fifth Amendment, and by the constitutional provisions of many of the states.
Equally important as one of the indispensable constitutional guaranties is that of
cross-examination. There are, also, other important constitutional or statutory requirements
which are essential. There is no sufficient legal reason why this court, in the instant case,
should treat or discuss, generally, in the matter of the present appeal, the sufficiency of the
facts and circumstances constituting the evidence upon the trial in the lower court. Indeed,
due to the fact that reversal is inevitable, it is apparent that, except as to the question of law
now before us upon the appeal as to which we believe the ruling of the lower court was
erroneous, it appears proper, in view of the requirement of a new trial, that, as above
indicated, we should avoid any intimation as to any evidence in the record, other than such
reference to the facts as is necessary in considering the question of the lawfulness of the
alleged view which occurred at the Kirn corral near Fallon, Nevada, July 12, 1948.
For the reasons stated, the judgment adjudging the defendant guilty of the crime of grand
larceny, and the order denying the defendant's motion for a new trial, are reversed, and the
cause is remanded to the lower court, and a new trial hereby ordered.
are reversed, and the cause is remanded to the lower court, and a new trial hereby ordered.
Badt, J., and Hatton, District Judge, concur.
Eather, J., being absent on account of illness, the Governor commissioned Honorable Wm.
D. Hatton, Judge of the Fifth Judicial District, to sit in his place.
____________
66 Nev. 405, 405 (1949) Wilson v. Wilson
FLORENCE S. WILSON, Appellant, v. BRYCE
WILSON, Respondent.
No. 3555
December 27, 1949. 212 P.2d 1066.
1. Divorce.
Where record stood uncontroverted that husband came to the state with intention of making his
permanent home and residence in the state for an indefinite period and wife was represented by counsel,
filed pleadings, prayed for specific relief and was personally present in court during entire trial, court had
jurisdiction to grant divorce.
2. Divorce.
Jurisdiction of court in divorce action cannot be waived by the parties.
3. Divorce.
Court in divorce action must have jurisdiction of the parties and the subject matter in order to render a
valid decree.
4. Divorce.
Entire cause of action should be finally decided by court in divorce action so as thereby to avoid
possibility of other controversies and litigation in other jurisdictions involving the same subject matter,
especially where minor children are innocent victims of possible extended litigation.
5. Divorce.
Where court had jurisdiction over both husband and wife in husband's divorce action, wherein wife
requested a decree of separate maintenance and prayed for sole custody of minor child, court had
jurisdiction to determine custody of child, though child was not a resident of the state. N.C.L.1929, sec.
9462, as amended by Stats. 1947, chap. 70.
6. Divorce.
In divorce action, evidence was not sufficient to establish wife's contention that trial court was guilty
of bias and prejudice in favor of husband.
7. Divorce.
Evidence sustained finding that wife treated husband with extreme cruelty so as to interfere with and
impair his health, entitling him to divorce.
Where there is a substantial conflict in the evidence, the judgment will not be disturbed on appeal.
9. Divorce.
Award of $350 a month to wife for her support and maintenance and that of minor child in husband's
successful divorce action, was reasonable, where husband was unemployed, his monthly income was
about $700 a month, and award was to be increased to $400 a month after three years and to $450 a
month on completion of education of child in elementary grades.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action for divorce by Bryce Wilson against Florence S. Wilson, wherein defendant filed a
cross complaint seeking separate maintenance. From a judgment favorable to plaintiff,
defendant appeals. Affirmed.
W.B. Etheridge, of Pasadena, California, and Walter Rowson, of Reno, for Appellant.
Samuel Platt, of Reno, for Respondent.
OPINION
By the Court, Brown, District Judge:
This is an appeal by the defendant from a judgment entered in the lower court in favor of
the plaintiff granting him a divorce and partial custody of a minor child to the defendant and
to the plaintiff, and awarding the defendant alimony and support and maintenance for the
minor child, and also from an order denying a motion for a new trial.
In the complaint the plaintiff prayed for a divorce, and that he be ordered to pay a specified
amount for the support and maintenance of the defendant and for the support and
maintenance of the minor child.
support and maintenance of the defendant and for the support and maintenance of the minor
child. In the defendant's answer and cross complaint, the defendant prayed for a decree of
separate maintenance, an order awarding the sole custody of the child to the defendant with
no right on the part of the plaintiff to visit the minor child, and an order requiring the plaintiff
to pay the sum of $1,000 a month for the support of the defendant and the minor child. The
action was tried before the court without a jury, and consumed a period of six trial days.
Voluminous testimony and documentary evidence were introduced by the respective parties,
which it is impossible to set out in detail without unnecessarily extending the length of this
opinion. Briefly, the plaintiff charged the defendant with extreme cruelty, mental in character,
which seriously affected his health and made further cohabitation impossible. The defendant
denied such extreme cruelty and alleged extreme cruelty on the part of the plaintiff against the
defendant of such a nature to justify a decree of separate maintenance. Inasmuch as both the
findings of fact and conclusions of law and the judgment and decree are principally attacked
by the defendant in her appeal, they are set forth in full, except for the preliminary recitals, as
follows:
Findings of Fact
I. That the said plaintiff, Bryce Wilson, is now and has been for more than six weeks last
past, continuously preceding the filing of the Complaint herein, a bona fide resident of and
domiciled within the State of Nevada, and has been physically and corporeally present in said
State each and every day for said period of time.
II. That the plaintiff and defendant intermarried at Pasadena, California, on the 19th day
of November, 1940, and ever since have been, and now are, husband and wife.
III. That there is one minor child the issue of the said marriage, namely, Carolyn Bryce
Wilson, of the approximate age of three and one-half {3 1J2) years.
said marriage, namely, Carolyn Bryce Wilson, of the approximate age of three and one-half (3
1/2) years.
IV. That during the married lifetime of the parties hereto, defendant treated plaintiff with
extreme cruelty; that the said conduct of defendant has caused plaintiff much mental pain,
anguish and suffering, and has seriously interfered with and impaired plaintiff's health; that
plaintiff's peace of mind and happiness have been destroyed thereby; that the legitimate
objects of matrimony have been defeated; and that further cohabitation with defendant has
become impossible and unendurable, and would further impair plaintiff's health.
V. That the community property of the plaintiff and defendant consists of household
furniture and furnishings now in storage in Pasadena, California, and three oriental rugs if in
plaintiff's possession or under his control, various wedding gifts; United States Savings
Bonds, the face value of said bonds being Two Thousand ($2,000.00) Dollars; two hundred
(200) shares of Avco stock purchased at a cost of Twelve Hundred Twenty ($1,220.00)
Dollars; and cash in the approximate amount of One Thousand ($1,000.00) Dollars.
VI. That plaintiff and defendant are both fit and proper persons to have the care, custody,
control and education of Carolyn Bryce Wilson, the minor child of plaintiff and defendant.
VII. That by reason of the tender age of said Carolyn Bryce Wilson, it is for her best
interest and welfare that the defendant have the present care, custody and control of said child
with the right given to plaintiff to see and visit with said minor child at all reasonable times;
that when said minor child shall reach the age of four years thereafter plaintiff may have the
care and custody of said minor for at least two (2) months during summer vacation, and
during said time defendant may have reasonable visits at reasonable times.
VIII. That Two Hundred ($200.00) Dollars per month for the support and maintenance
of the defendant, and One Hundred Fifty {$150.00) Dollars per month for three years,
thence Two Hundred {$200.00) Dollars per month thereafter until such time as the said
minor child, Carolyn Bryce Wilson, completes her education in the elementary grades;
thence Two Hundred Fifty {$250.00) Dollars per month thereafter during the minority of
said child, are reasonable and proper amounts to be allowed defendant for the support,
maintenance and education of said child, and for the support and maintenance of
defendant.
month for the support and maintenance of the defendant, and One Hundred Fifty ($150.00)
Dollars per month for three years, thence Two Hundred ($200.00) Dollars per month
thereafter until such time as the said minor child, Carolyn Bryce Wilson, completes her
education in the elementary grades; thence Two Hundred Fifty ($250.00) Dollars per month
thereafter during the minority of said child, are reasonable and proper amounts to be allowed
defendant for the support, maintenance and education of said child, and for the support and
maintenance of defendant.
IX. That there is pending in the State of California and in the State of Michigan, actions
by defendant against plaintiff for separation and separate maintenance, and that said actions
involve the same issues as were before this court in the above entitled action.
X. That except as herein specifically found, none of the allegations of defendant's answer
and cross-complaint material to a determination of the issues presented by the within and
above entitled cause, and none of the causes of action set out in said answer and
cross-complaint either by way of extreme cruelty, desertion, failure to provide, are sustained
by the testimony and evidence introduced upon the trial of the above entitled action.
Conclusions of Law
As conclusions of law from the foregoing facts, the court finds:
I. That plaintiff, Bryce Wilson, is entitled to a decree of divorce from defendant.
II. That defendant is not entitled to any relief against plaintiff upon her answer and
cross-complaint, except as hereinafter provided.
III. That the defendant is entitled to the community property consisting of the household
furniture and furnishings, including three oriental rugs if in plaintiff's possession or under his
control; the wedding gifts, two hundred (200) shares of Avco stock, United States Savings
Bond of the face value of One Thousand {$1,000.00) Dollars, and cash in the amount of
One Thousand {$1,000.00) Dollars, now in possession of defendant.
Savings Bond of the face value of One Thousand ($1,000.00) Dollars, and cash in the amount
of One Thousand ($1,000.00) Dollars, now in possession of defendant.
IV. That plaintiff is entitled to retain possession of his personal effects now in storage
with the household furniture in Pasadena, California, or elsewhere.
V. That neither party shall have any right, title, or interest in or to the separate property of
the other, and each shall have, possess, and own the same.
VI. That said plaintiff pay to the defendant, as and for the support and maintenance of
said defendant, the sum of Two Hundred ($200.00) per month, commencing the 1st day of
June, 1948, and continuing thereafter until such time as the death or remarriage of the
defendant.
VII. That said plaintiff pay to the defendant, as and for the support, maintenance, and
education of the minor child, the sum of One Hundred Fifty ($150.00) Dollars per month,
commencing the 1st day of June, 1948, and continuing on the first day of each succeeding
month thereafter for a period of three years; that thereafter the sum of Two Hundred
($200.00) Dollars be paid monthly until such time as the elementary education of said minor
child is completed; that thereafter the sum of Two Hundred Fifty ($250.00) Dollars per month
until the said child attains her majority.
VIII. That as a condition prior to the commencement of the above payments, said
defendant will dismiss said causes of action now pending in the State of California and in the
State of Michigan against said plaintiff, and refrain from any further proceedings against
plaintiff thereunder.
IX. That defendant be given the present care and custody of said minor child; subject to
this court retaining jurisdiction of said minor child during its minority to alter, vacate, or
modify said orders relating to her custody, support, and maintenance. That plaintiff be given
the right to see and visit said minor child at all reasonable times.
given the right to see and visit said minor child at all reasonable times. When said child shall
reach the age of four years, then and thereafter plaintiff may have the care and custody of said
minor child during two (2) months of the Summer, that is, during the months of July and
August of each year, and during that time defendant may have reasonable visits at reasonable
times; and in addition, if for any reason defendant makes this provision impossible of
fulfillment, the above entitled court reserves the right to modify the decree as to the alimony,
support and maintenance of defendant, and the amount for the support of the minor child.
X. That this court reserve jurisdiction of the within and above entitled cause of action for
a period of two years for the purpose of altering, changing, or modifying the order of this
court for the support and maintenance of said defendant, as changed circumstances and
conditions may require.
Decree of Divorce
It Is Hereby Ordered, Adjudged, And Decreed that the bonds of matrimony heretofore
and now existing between the above named plaintiff and defendant be, and the same hereby
are dissolved and declared forever at an end, upon the ground of extreme cruelty of the
defendant towards plaintiff, and said plaintiff and defendant are each forever released from all
the duties and obligations thereof, and that said plaintiff and defendant be, and they hereby
are restored to their original status of unmarried persons.
It Is Further Ordered, Adjudged And Decreed that the defendant be, and she is hereby
awarded the present care, custody, and control of Carolyn Bryce Wilson, the minor child of
the parties, subject to this court retaining jurisdiction of said minor child during its minority
to alter, vacate, or modify said orders relating to her custody, support and maintenance. That
plaintiff be, and he hereby is, given the right to see and visit said minor child at all
reasonable times, and subject to the further condition and provision, that when said
minor child shall reach the age of four years, then and thereafter plaintiff be, and is
hereby awarded the custody of said minor child during two {2) months of the Summer
vacation, that is, during the months of July and August, and during said period defendant
be, and she is hereby given the right to reasonable visits with said minor child at
reasonable times.
minor child at all reasonable times, and subject to the further condition and provision, that
when said minor child shall reach the age of four years, then and thereafter plaintiff be, and is
hereby awarded the custody of said minor child during two (2) months of the Summer
vacation, that is, during the months of July and August, and during said period defendant be,
and she is hereby given the right to reasonable visits with said minor child at reasonable
times.
It Is Further Ordered, Adjudged And Decreed that if defendant makes the last above
condition impossible of fulfillment, the above entitled court further reserves the right to
modify the decree as to alimony, support and maintenance of defendant, and the amount for
the support of the minor child.
It Is Further Ordered, Adjudged And Decreed that the plaintiff be and is hereby ordered to
pay to defendant as and for the support and maintenance of said defendant the sum of Two
Hundred ($200.00) per month, and to continue thereafter until such time as the death or
remarriage of the defendant, whichever shall occur first.
It Is Further Ordered, Adjudged And Decreed the plaintiff be and is hereby ordered to pay
to defendant as and for the support, maintenance and education of the minor child, the sum of
One Hundred Fifty ($150.00) Dollars per month, commencing the 1st day of June, 1948, and
continuing on the first day of each succeeding month thereafter for a period of three years;
that thereafter the sum of Two Hundred ($200.00) Dollars be paid monthly until such time as
the elementary education of said minor child is completed; that thereafter the sum of Two
Hundred Fifty ($250.00) Dollars be paid monthly until the said child attains her majority.
It Is Further Ordered, Adjudged And Decreed that defendant be and is hereby awarded the
following community property: The household furniture and furnishings, three oriental rugs if
in possession of plaintiff or under his control; the wedding gifts; two hundred shares of
Avco stock; United States Savings Bonds of the face value of One Thousand {$1,000.00)
Dollars, and cash in the approximate amount of One Thousand {$1,000.00) Dollars now in
her possession.
under his control; the wedding gifts; two hundred shares of Avco stock; United States
Savings Bonds of the face value of One Thousand ($1,000.00) Dollars, and cash in the
approximate amount of One Thousand ($1,000.00) Dollars now in her possession. That
plaintiff be and is hereby awarded the right to possession of his personal effects now in
storage with the household furniture in Pasadena, California or elsewhere.
In the course of the opinion the parties will be referred to as in the lower court, the plaintiff
being the respondent, and the defendant being the appellant.
The defendant sets forth five specifications of error:
1. Plaintiff husband not a bona fide resident of Nevada; and trial court lacked jurisdiction
to grant divorce.
2. Infant daughter of parties never domiciled, resident or present in Nevada; trial court
lacked jurisdiction to award partial custody to husband; and trial court erred in making award
of alimony and child support conditioned upon wife complying with such extra-jurisdictional
and therefore void custody award.
3. Trial court committed multiple errors and abuses of discretion, with resultant denial to
defendant wife of a fair and impartial trial.
4. Findings of Fact not supported by the evidence; and
5. Award for support and maintenance of defendant wife and minor daughter grossly
inadequate.
Under the first specification of error, the defendant contends that the husband was not a
bona fide resident of the State of Nevada, and for that reason the trial court lacked jurisdiction
to grant the divorce.
The plaintiff alleged in Paragraph I of his complaint as follows:
That the said plaintiff, Bryce Wilson, is now and has been for more than six weeks last
past, continuously preceding the filing of the complaint herein, a bona fide resident of and
domiciled within the State of Nevada, and has been physically and corporeally present in
said State each and every day for said period of time."
and has been physically and corporeally present in said State each and every day for said
period of time.
In the defendant's answer and cross-complaint, she admitted upon information and belief,
all of the allegations of Paragraph I of the complaint. The testimony of the plaintiff, which is
corroborated by the testimony of Mrs. Eileen Campbell, Mrs. Ivan S. Smith, and Mrs. June
Bennett Gardner, shows that the plaintiff was a resident of the State of Nevada continuously
from October 6, 1947, up to and including the 4th day of May 1948, on the day the trial
commenced.
The statutory residence requirement was completely satisfied by such evidence, and the
record stands uncontradicted that the plaintiff came to Nevada with the intention of making
his permanent home and residence in the State of Nevada for an indefinite period of time.
Further, no evidence was offered by the defendant to disprove, or in any manner attack, the
bona fide residence of the plaintiff in the State of Nevada.
1. Therefore, the plaintiff complied with all of the legal requirements as to residence, and
there is no merit to the contention made by the defendant as to the jurisdiction of the court to
grant the divorce. Walker v. Walker, 45 Nev. 105, 198 P. 433; Blakeslee v. Blakeslee, 41
Nev. 235, 168 P. 950; Drespel v. Drespel, 56 Nev. 368, 45 P.2d 792, 54 P.2d 226.
Specification of error number 2 alleges that the infant daughter of the plaintiff and the
defendant was never domiciled, a resident, or present in the State of Nevada; that the trial
court lacked jurisdiction to award partial custody to the husband, and that the trial court erred
in making an award of alimony and child support conditioned upon the wife complying with
such extra-jurisdictional and therefore void custody award.
This matter of jurisdiction of the trial court to award custody of the minor child presents a
very serious question, which has never been passed upon directly by this court.
It is conceded by both parties that the child was never in the State of Nevada. The question
of jurisdiction to award custody of a child having legal domicile in another state is
exhaustively discussed in a recent annotation in 4 A.L.R.2d commencing on page 7. While
the annotation considers many ramifications of the subject, the sole question presented here is
in reference to the power of a domestic court to award custody of a child, who was never in
the State of Nevada, in a divorce action where both parties personally appeared and submitted
themselves to the jurisdiction of the district court.
Counsel for appellant has presented a number of cases dealing with the question, as
follows: Dorman v. Friendly, 146 Fla. 732, 1 So.2d 734; State ex rel. Larson v. Larson, 190
Minn. 489, 252 N.W. 329; In re Chandler, 36 Cal.App.2d 583, 97 P.2d 1048; State ex rel.
Rasco v. Rasco, 139 Fla. 349, 190 So. 510; Kenner v. Kenner, 139 Tenn. 211, 201 S.W. 779,
L.R.A.1918E, 587; People ex rel. Noonan v. Wingage, 376 Ill. 244, 33 N.E.2d 467; Zinsser v.
Zinsser, 92 N.J.Eq. 491, 113 A. 520; Goldsmith v. Salkey, 131 Tex. 139, 112 S.W.2d 165,
116 A.L.R. 1293; Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 40 A.L.R. 937; Thrift v.
Thrift, 54 Mont. 463, 171 P. 272; Wear v. Wear, 130 Kan. 205, 285 P. 606, 72 A.L.R. 425;
Hughes v. Hughes, 180 Or. 575, 178 P.2d 170; Byers v. Superior Court, Yavapai County, 61
Ariz. 284, 148 P.2d 999; Boens v. Bennett, 20 Cal.App.2d 477, 67 P.2d 715.
2, 3. Upon an examination of these cases, it appears that in many instances other factors in
addition to the one of the absence of the child from the state were before the court, which
were controlling as to the question of jurisdiction. Among these were questions of substituted
service of summons upon the defendant, and the failure of the defendant to appear personally
in the action, which resulted in a default judgment. It is fundamental that jurisdiction of the
court cannot be waived by the parties, and that the court must have jurisdiction of the
parties and the subject matter in order to render a valid decree.
by the parties, and that the court must have jurisdiction of the parties and the subject matter in
order to render a valid decree.
In the instant case, there can be no question as to the jurisdiction of the court over the
plaintiff and the defendant. Both were represented by counsel, filed pleadings, prayed for
specific relief from the court, and were personally present in court during the entire trial.
Therefore, the sole point remaining to be decided resolves itself into one question, namely:
Did the district court have jurisdiction of the subject matter to award custody of the minor
child?
It should be noted that the plaintiff prayed for a divorce in his complaint, and that the
defendant requested a decree of separate maintenance, and prayed for the sole custody of the
minor child, with no right of visitation to or with said minor child by the plaintiff, in her
answer and cross-complaint. By her own pleading she prayed for specific relief as to custody.
Section 9462, N.C.L.1929, as amended, Statutes of Nevada, 1947, chapter 70, page 271,
reads as follows:
Section 24. The court, in granting a divorce, shall make such disposition of, and provision
for, the children, as shall appear most expedient under all the circumstances, and most for the
present comfort and future well-being of such children; and when, at the commencement, or
during the pendency, of the suit, it shall be made to appear to the court, or to the judge, in
vacation, that any child of the wife, whether she be plaintiff or defendant, which is too young
to dispense with the care of its mother, or other female, has been or is likely to be, taken or
detained from her, or that any child of either party, has been, or is likely to be taken, or
removed, by, or at the instance of, the other party, out of the country, or concealed within the
same, it shall be the duty of the court, or of such judge in vacation, forthwith to order such
child to be produced before him, and then to make such disposition of the same, during the
pendency of the suit, as shall appear most advantageous to such child, and most likely to
secure to it the benefit of the final order to be made in its behalf; and all such orders may
be enforced, and made effectual, by attachment, commitment, and requiring security for
obedience thereto, or by other means, according to the usages of courts, and to the
circumstances of the case; provided, that in actions for divorce the court may, during the
pendency of the action, or at the final hearing or at any time thereafter during the
minority of any of the children of the marriage, make such order for the custody, care,
education, maintenance, and support of such minor children as may seem necessary or
proper, and may at any time modify or vacate the same."
the pendency of the suit, as shall appear most advantageous to such child, and most likely to
secure to it the benefit of the final order to be made in its behalf; and all such orders may be
enforced, and made effectual, by attachment, commitment, and requiring security for
obedience thereto, or by other means, according to the usages of courts, and to the
circumstances of the case; provided, that in actions for divorce the court may, during the
pendency of the action, or at the final hearing or at any time thereafter during the minority of
any of the children of the marriage, make such order for the custody, care, education,
maintenance, and support of such minor children as may seem necessary or proper, and may
at any time modify or vacate the same.
In a number of the cases cited by the defendant the courts have primarily based their
decision regarding the matter of custody of the minor child absent from the state upon the
question of status of the child and legal domicile of the father or mother.
4. Courts of equity have always zealously endeavored to prevent a multiplicity of actions
in order finally to decide the litigation before the court. Further, in the interest of justice, the
entire cause of action should be finally decided by the court and thereby avoid the possibility
of other controversies and litigation in other jurisdictions involving the same subject matter,
especially where minor children are the innocent victims of such possible extended litigation.
5. This court is of the opinion that the more sound and better reasoning of the question is
that although a child may not be within the state, that in itself is immaterial. The parties to the
action are the parents of the child and the cause of action, the right of custody, insofar as it
affects the child is between them, and at the trial all of the facts and circumstances, not only
concerning the ground for the divorce, but also as to the fitness of the respective parties to
care for the child, and as to the future welfare of the child, are completely before the court.
the court. Certainly, the issue of the marriage is the most vital and important incident of the
marriage relationship involved in the action before the court, and in the event of the
termination of such marriage relationship by the court, the future welfare of a minor child is
of much more serious consequence, not only to the parties themselves, but to society in
general, than questions of property and alimony also incident to and connected with the cause
of action, and almost universally conceded to be within the power of the court to determine
by a personal decree and by coercion if necessary.
We can conceive of a divorce action tried in the State of Nevada, with both parties
personally represented and subject to the jurisdiction of the court, having five minor children,
each residing in a different state, and other than the State of Nevada, the custody and future
welfare of such children being at stake. It is neither sensible nor reasonable to require the
parties to litigate and determine the question of custody of each child, as between the parties,
in five different courts in five different states. To our mind, such a holding would be
ridiculous and most unjust.
Further, one of the parents, realizing the existence of an unfortunate marriage situation and
the probability of the immediate commencement of a divorce action by the other, and solely
for spite, bitterness, or revenge against the other party, could remove the minor child from the
state just before the action is started, and thereby flaunt the court in its determination of the
whole marriage problem, thereby making the innocent children footballs of long and
extended litigation and victims of uncertainty and cunning legal maneuvers, as to their future
welfare.
We hold that custody of minor children is the most vital incident of the marriage
relationship in reference to the problem before the court, and as such is an integral part of the
subject matter of a divorce action when both parties have submitted themselves to the
jurisdiction of the district court, and that such district court has full jurisdiction of the
parties, with power to render a personal decree as to the custody of such minor children
as between the parties to the action.
both parties have submitted themselves to the jurisdiction of the district court, and that such
district court has full jurisdiction of the parties, with power to render a personal decree as to
the custody of such minor children as between the parties to the action.
The case of Stephens v. Stephens, 53 Idaho 427, 24 P.2d 52, 55 follows such line of
reasoning, in which the court said:
Formally the child was not a party to the action. She was before the court because of the
fact that her parents were in court, and both parents voluntarily submitted to the court, who,
as between the parents, should have custody and control.
With reference to the order making the continued payment of alimony and child support by
the plaintiff conditioned upon the defendant's compliance with the order permitting the
plaintiff's visitation and partial custody of the minor child, we are of the opinion that such a
condition was reasonable and constituted no abuse of discretion by the trial court. Such
condition may have been occasioned by the trial court's observation of the attitude of the
parties in court. Further, the defendant's argument that this condition penalizes the child for
the appellant's failure to comply is not convincing.
6. In specification of error number 3, the defendant alleges that the trial court committed
multiple errors and abuse of discretion with resultant denial to the defendant of a fair and
impartial trial. This assignment constitutes a general charge of bias and prejudice against the
trial judge. As previously stated, the trial of the action consumed a period of six days, during
which time there were numerous exchanges of words between the court and counsel for the
defendant regarding the position of the defendant, and her feeling of resentment against the
plaintiff on account of not acceding to a reconciliation and ultimately the bringing of the
present action for a divorce. During the trial the judge had every opportunity to observe and
study the various parties and their witnesses.
had every opportunity to observe and study the various parties and their witnesses. Often the
conduct and demeanor of a witness on the stand means much to a judge in weighing the
testimony. We are in no position to do so and must give the trial judge due credit for making
a careful and thorough analysis of the entire case unless there appear from the record
erroneous rulings on matters of law, or a clear abuse of judicial discretion by the judge. We
find that neither of these situations appear in the record. The trial court ultimately found in
favor of the plaintiff and against the defendant, and granted a decree of divorce. In so doing,
the court rejected the position of the defendant and the various contentions made by her in
reference to the plaintiff. In effect, because the trial judge declined to accept the defendant's
theory of the case, and refused to grant a decree of separate maintenance to her, and to grant
sole custody of the minor child to her, with no right of visitation to the plaintiff, and to award
the sum of $1,000 a month to the defendant for her support and maintenance and the support
and maintenance of the minor child, the trial court is now charged with bias and prejudice and
abuse of discretion. Such a charge is not warranted by the record and consequently affords no
basis for a reversal.
7. The defendant contends that the findings of fact are not supported by the evidence under
specification number 4. In fact, it is the contention of the defendant that the findings of fact
are not supported by any material evidence and that there was, and is, no conflict with respect
to the material evidence presented at the trial. No useful purpose would be accomplished by
endeavoring to set forth in detail all of the evidence set forth at the trial, which consumes
approximately eight hundred pages of the record on appeal. We have read the testimony and
find a very decided conflict in the material evidence on behalf of the respective parties. Both
the plaintiff and defendant were children of wealthy families. The husband's income at the
time of the marriage was very meager, and they both received financial aid from their
families.
was very meager, and they both received financial aid from their families. The husband
enlisted in the army, became a captain while still in this country, went overseas and attained
the rank of lieutenant colonel. Upon his return in 1946, there were constant arguments and
quarrels between the parties, many in regard to the feeling of the defendant concerning the
plaintiff's parents, and his parents' home. Further, the record shows that the defendant lived
with her parents during the absence of the plaintiff while in the armed forces, during which
time she had everything she desired, including a maid and baby-sitter; that she was not
accustomed to household work, and that a great portion of her time was spent reading. The
record indicates that the defendant was a person with domineering characteristics. Upon the
husband's release from the army, both the plaintiff and defendant grew further and further
apart, until the plaintiff separated from the defendant. The plaintiff testified that as a result of
the defendant's conduct, his health was directly affected, and that continued cohabitation with
the defendant was impossible without further endangering his health.
8. We find that there is substantial evidence in the record to support the findings of fact.
Following the long established rule of this court that where there is a substantial conflict
in the evidence the judgment of the trial court will not be disturbed, and in view of the fact
that there is abundant evidence in this case to support the orders entered by the trial judge,
these orders should be affirmed. Miller v. Miller, 37 Nev. 257, 142 P. 218; Murphy v.
Murphy, 64 Nev. 440, 183 P.2d 632; Frank P. Parascandola et al. v. Mary Blanche
Christensen et al., 65 Nev. 578, 199 P.2d 629; Louis Canepa et al. v. F. E. Durham et al., 65
Nev. 451, 202 P.2d 286.
9. Under specification of error number 5, the defendant contends that the award for
support and maintenance of the defendant and minor child is grossly inadequate. The plaintiff
was unemployed immediately prior to and at the time of the trial.
prior to and at the time of the trial. However, the record discloses that his monthly income
was approximately $700 per month. Defendant contends that the plaintiff could be gainfully
employed and receive at least $500 per month in addition to the $700 he was then receiving.
Upon such a premise the defendant contends that she is entitled to an award of $1,000 a
month for her support and maintenance and support and maintenance of the minor child.
While it is true that the evidence disclosed that the defendant was accustomed to spending
much more than $350 per month for her support and maintenance and that of the minor child,
yet the evidence is entirely lacking as to the ability of the husband to pay such greater amount
under his present income. The court made an award of $350 per month for the support and
maintenance of the defendant and the minor child, for a period of three years, and thereafter
to be increased to $400 per month, and upon the completion of the education of the minor
child in the elementary grades, to be increased to $450 per month. The court also reserved
jurisdiction over the defendant for a period of two years within which to alter, change, or
modify the order as to the support and maintenance of the defendant, and retained jurisdiction
over the minor child during its minority to alter, vacate, or modify the orders relative to her
custody, support and maintenance. Under the evidence presented, we are of the opinion that
such an award was reasonable.
We find no ground for reversal under any of the specifications of error. Therefore, the
judgment and decree and the order denying a motion for a new trial are affirmed.
Eather, J., being absent on account of illness, the Governor commissioned Hon. Merwyn
H. Brown, Judge of the Sixth Judicial District, to act in his place.
____________
66 Nev. 423, 423 (1949) State v. Gregory
THE STATE OF NEVADA, Respondent, v.
THEODORE WILLIAM GREGORY, Appellant.
No. 3570
December 12, 1949. 212 P.2d 701.
1. Homicide.
Words or conduct calculated to arouse, and arousing, sudden passion, may be sufficient to modify
homicide from murder in the first degree to murder in the second degree.
2. Homicide.
When a design to kill another person is once formed, the haste with which the design is put into
execution does not modify the homicide from murder in the first degree to murder in the second degree.
3. Criminal Law.
Verdict of a jury in criminal prosecution will not be disturbed on appeal when it is supported by
substantial evidence.
4. Homicide.
Evidence sustained conviction for murder in the first degree.
5. Criminal Law. Homicide.
In prosecution for murder in the first degree, of a defendant who shot and killed his former wife with
a pistol, proof of comparatively recent divorce obtained by decedent from defendant was admissible to
show state of feelings between defendant and decedent, but inclusion in the proof of statement in divorce
decree that divorce was granted for extreme cruelty was incompetent but was not prejudicial in view of
other evidence. N.C.L.1929, sec. 11266.
6. Criminal Law.
In prosecution for murder in the first degree, instruction on manslaughter, allegedly giving impression
to jury that to reduce the crime from murder in the first degree, and to consider the heat of passion,
passion must be irresistible, and which did not contain words restricting instruction to voluntary
manslaughter, did not confuse jury in view of other instructions, bearing on subject of manslaughter and
referring to irresistible passion. N.C.L.1929, secs. 10069-10071.
7. Criminal Law. Homicide.
Evidence did not show that defendant was not guilty of murder in the first degree and guilty only of
murder in the second degree or of a lesser crime included in the crime of murder, so as to permit supreme
court or trial court under statute to modify conviction for murder in the first degree by reducing crime to
murder in the second degree. N.C.L.1931-1941 Supp., sec. 11032.
Theodore William Gregory was convicted of murder, and he appeals. Affirmed.
Leslie B. Gray, of Reno, for Appellant.
Alan Bible, Attorney General, Homer Mooney and Robert L. McDonald, Deputy Attorneys
General, Harold O. Taber, District Attorney of Washoe County, and Grant L. Bowen, Deputy
District Attorney, of Reno, for Respondent.
OPINION
By the Court, Hatton, District Judge:
Theodore William Gregory, the defendant below, is the appellant here. He will be referred
to herein as the defendant. The defendant was charged with the murder of Margaret Tarr by
an Information filed by the district attorney of Washoe County, Nevada, on October 8, 1948,
to which he entered his plea of not guilty. Upon the trial he was found guilty of murder in the
first degree and the death penalty was imposed by the jury. He brings this appeal from the
judgment and from the trial court's order denying his motion for a new trial, or, in the
alternative, for a modification of the judgment by reducing the same from murder in the first
degree to murder in the second degree or a lesser crime included in the crime of murder.
One of the assignments of error in this case is that the evidence is insufficient to sustain
or justify a verdict that the appellant is guilty of murder in the first degree.
The defendant and the deceased, Margaret Tarr, were married in Elko, Nevada, on
December 16, 1946. Thereafter they went to Detroit, Michigan, their former home, remaining
there for a period of about three months. They then returned to Nevada, taking up their
residence at Las Vegas, where defendant was employed as a barber and later as caretaker of
an apartment house. They were divorced at Las Vegas on May 1S, 194S, deceased resuming
the name of Margaret Tarr.
were divorced at Las Vegas on May 18, 1948, deceased resuming the name of Margaret Tarr.
Defendant testified that, immediately after the divorce, she promised to remarry him, that she
broke her promise, that she lived with him after the promise, and that he spent money on her
and on her daughter by a prior marriage. He suspected her of intimacy with another man, and
he brooded over these conditions. Mrs. Engelberger, with whom they were rooming, testified
that the defendant said to her, before the shooting, I guess I lost her, she double-crossed me,
I found out where she was that night, and I know what I'm going to do. Police Officer
Geiseking testified that the defendant said he was tired of her chippying' around and he
warned her if she wouldn't quit that he was going to do what he did. The defendant, in the
early morning of the homicide, lay awake for hours awaiting the return of Mrs. Tarr; when he
heard the arrival of the automobile, he armed himself with a pistol and went out to the car. He
testified that he took the pistol for protection. The evidence shows that, after the door of the
car had been opened and the defendant had drawn the pistol, a long conversation and
argument ensued between the defendant, Mrs. Tarr and her companion Birch. The defendant
evidently desired to satisfy himself as to the degree of the intimacy between Mrs. Tarr and
Birch and also to compel Mrs. Tarr to admit that mutual promises of remarriage existed
between them and that they had been living together since the divorce as husband and wife.
For a time, she refused to make either of these admissions, and the defendant testified that she
called him a liar. He testified that Birch tried to get her to agree with me and she would not;
she did make the statement, she said Darrel, I won't do it for Ted, but I will do it for you' and
that is when it happened. So, according to the defendant's testimony, he had finally obtained
from her an admission of the correctness of his contentions, but with her assertion, in
substance, that she was making the admission because Birch requested it.
making the admission because Birch requested it. Birch testified that his relations with Mrs.
Tarr extended only to their drinking together and his taking her home on the two occasions.
During their argument, as testified to by the defendant, neither Birch nor Mrs. Tarr would
admit any further intimacy. This left the defendant with only his surmise as to the extent of
their intimacy but with the definite knowledge that Mrs. Tarr no longer cared for him and that
her affections were directed towards Birch. He told Birch that he did not blame him and his
resentment appeared to be directed mainly towards the woman. He was sufficiently calm to
direct Birch to drive the car away from the Engelberger's residence in order not to disturb
them. From the time of the drawing of the pistol until the moment of the shooting, an interval
of about an hour elapsed, according to the defendant's testimony, and, according to the
testimony of Birch, the interval covered about two hours. The jury therefore had before them,
in the evidence, a substantial period of time in which the defendant could reflect upon and
consider what he was about to do. There is substantial evidence that, prior to the night of the
homicide, he had at least entertained the thought of killing her. This the jury no doubt
considered in connection with the defendant's anger and his indecision, as testified to by
Birch, as to whether or not he would kill Birch also. It is the defendant's contention that his
mind was so disturbed by the events which had transpired between himself and Mrs. Tarr, her
calling him a liar and her expressed preference for Birch, that he was incapable of forming,
and did not form or entertain any design or purpose to kill herthat the killing was not
deliberate and premeditated but was the result of passion. Immediately prior to the shooting,
Birch ran from the car, and, while running, he heard the three shots.
1, 2. It is stated in 26 American Jurisprudence, Homicide, p.
Homicide, p. 189, sec. 43, that it seems to be settled that words or conduct calculated to
arouse, and arousing, sudden passion, may be sufficient to modify homicide from murder in
the first degree to murder in the second degree. In the same article, at page 187, sec. 42, the
following is stated:
A very brief period will suffice, provided the formed intent to kill was consciously
conceived in the mind of the slayer before the homicidal act was committed. It is sufficient
that with the intention to commit the act the appreciation of the result likely to follow
appeared to the defendant at the time the act was committed, or that he understood and
contemplated the consequences of his act; a killing may be the result of prompt and speedy
execution of a hasty or immediate resolution and yet have been done with express malice.
When a design is once formed, the haste with which it is put into execution in no way affects
or modifies the degree of guilt incurred. Such design may have existed for only an instant
before the commission of the crime. Deliberation and premeditation imply a capacity at the
time of the commission of the homicide to think and reflectsufficient volition to make a
choice, and by use of the mental powers, to refrain from doing the homicidal act.
The jury no doubt considered whether or not the defendant consciously conceived an
intent to kill, and whether or not he understood and contemplated the consequences of his act,
his capacity to reflect, to make a choice, and to refrain from doing the homicidal act.
The evidence before the jury was, to a considerable extent, similar to the evidence in the
case of State v. Jukich, 49 Nev. 217, 242 P. 590, 594. In that case, Mr. Justice Ducker
summarized the evidence and concluded as follows:
The appellant, as the evidence shows, came to the house armed with a deadly weapon
concealed upon his person. Without provocation he used it with fatal effect upon an innocent
young girl.
upon an innocent young girl. He attempted to kill the mother and a younger sister. According
to the testimony of the latter he struck her and kicked the prostrate form of the girl he had
shot and killed. He told the arresting officers that he killed her because she would not marry
him and to keep any one else from having her. He told the district attorney shortly after the
shooting that she had previously promised to marry him; that her mother had promised her to
him, and he had spent all his money on her; and that on the night of the killing when he
reproached her for breaking her promise and she told him she did not know why she refused
him, he got excited and commenced to shoot. His statements disclose a motive of revenge,
and from all of the circumstances the jury was warranted in concluding that the killing was
done with malice and deliberation.
Whether appellant's testimony to the effect that he was so intoxicated as to be
unconscious of what he was doing was true or not was for the jury to determine, and was
resolved against him by the verdict.
3, 4. The law of Nevada, as established by the decisions of this court, is that the verdict of
a jury will not be disturbed when it is supported by substantial evidence. We conclude that, in
the present case, the verdict of the jury was so supported.
5. The defendant assigns as error the ruling of the trial court admitting in evidence a
certified copy of the decree of divorce granted to the deceased in Las Vegas. The decree
stated the ground for the divorce, namely, extreme cruelty. In the case of Binns v. State, 57
Ind. 46, 26 Am.Rep. 48, cited by defendant, the court states that the proof of a divorce may
have been competent to show the state of feelings between the parties. We take the view that
as part of the evidence to show the state of feeling between the parties, it was competent and
relevant to prove the comparatively recent granting of a divorce.
a divorce. However, the inclusion in the proof of the statement in the decree as to extreme
cruelty was incompetent, and it should have been excluded. The seventeen-year old daughter
of the deceased testified that her mother and the defendant, prior to the divorce, quarreled
about herself and her brother and about the defendant's gambling, and that on one occasion, at
night after retiring, she had heard them arguing, that it sounded as though he slapped her or
something and that she was crying. On cross-examination she stated that, while they were
married and living together in Las Vegas, she had never seen the defendant strike her mother.
We consider it highly improbable that the recital of extreme cruelty in the decree added
anything to such impression of cruelty as the jury may have received from the testimony of
the daughter together with the fact that close relations had been resumed between defendant
and the deceased after the divorce. Upon the entire record, we do not regard the error in the
admission of the decree in evidence as resulting in a miscarriage of justice or as prejudicial to
the defendant in respect to a substantial right. N.C.L., sec. 11266.
6. The defendant assigns error upon the giving by the trial court of its instruction No. 14.
After defining murder and distinguishing its degrees and dealing with the bearing of
provocation in determining the degree, the court gave its instructions numbered 12, 13 and
14, setting forth, respectively, the provisions of sections 122, 123 and 124 of the act
concerning crimes and punishments, being N.C.L., sections 10069, 10070 and 10071, all
bearing upon the subject of manslaughter. Defendant contends that the court erred in giving
instruction No. 14 without including therein words which would make clear to the jury that
the provocation referred to therein was the provocation required to reduce the alleged killing
to voluntary manslaughter. Defendant contends that as this instruction reads it gives the
impression to the jury that to reduce the crime at allto consider heat of passion at
allthe passion must be irresistible," and that there should have been interpolated into
the wording of the instruction words restricting the same to voluntary manslaughter.
impression to the jury that to reduce the crime at allto consider heat of passion at allthe
passion must be irresistible, and that there should have been interpolated into the wording of
the instruction words restricting the same to voluntary manslaughter. The logical sequence of
the three instructions, with the reference in each instruction to the subject of irresistible
passion, convinces us that the jury were not confused or misled by the alleged defect in the
instruction referred to.
The defendant further assigns as error the refusal of the trial court to grant a new trial or to
modify the judgment under the terms of subdivision 6 of section 384 of the act concerning
crimes and punishments, being N.C.L.1931-1941 Supp., section 11032. The subdivision
reads that the trial court has power to grant a new trial.
6. When the verdict is contrary to law or evidence, but if the evidence shows the
defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of
a lesser degree thereof, or of a lesser crime included therein, the court may modify the
judgment accordingly without granting or ordering a new trial, and this power shall extend to
any court to which the cause may be appealed.
The foregoing provision, enacted in 1931, evidently was copied from the California statute
as amended in 1927, being California Penal Code, section 1181. That statute was considered
for the first time by the supreme court of California in the case of People v. Kelley, 208 Cal.
387, 281 P. 609. It was later applied by the court in the case of People v. Daniel, 65
Cal.App.2d 622, 151 P.2d 275, where preceding cases were reviewed. Both in California and
Nevada the state constitution provides that the jurisdiction of the supreme court in criminal
cases is limited to questions of law alone. The statute referred to came before this court in the
case of State v. Robison, 54 Nev. 56, 6 P.2d 433, 436. In that case, the court, speaking
through Mr. Justice Ducker, said: "The evidence is, we think, sufficient to support the
verdict of murder of the second degree.
The evidence is, we think, sufficient to support the verdict of murder of the second
degree. Consequently we could not reverse the judgment on the ground of insufficiency of the
evidence, nor are we authorized by statutes of 1931 to modify the judgment to one of
manslaughter. The statute does not purport to clothe the court with power to modify a
judgment in a criminal case without giving or ordering a new trial, as a matter of leniency, but
only when the judgment is not supported by the evidence which does show the defendant
guilty of a lesser degree of the crime for which he was convicted, or of a lesser crime
included therein. There was, however, as we have indicated, evidence upon which the jury
could legally base a verdict of murder.
We conclude that, in the present case, the trial court did not err in refusing to grant a new
trial for insufficiency of the evidence to sustain a verdict of murder of the first degree, nor did
it err in refusing to modify the judgment.
7. The defendant applies to this court for a modification of the judgment by reducing the
crime from first degree murder to second degree murder. We can not say, using the language
of the statute, that the evidence shows the defendant to be not guilty of the degree of the
crime of which he was convicted and that it shows him to be guilty only of a lesser degree
thereof. On the contrary, we find that the record shows there was evidence of premeditation
and deliberation upon which the jury could legally base a verdict of murder of the first
degree.
No error appearing, the judgment and order denying defendant's motion for a new trial are
hereby affirmed, the petition for modification of the judgment by reducing the degree of the
crime is hereby denied, and the district court is directed to make the proper order for the
carrying into effect, by the warden of the state prison, of the judgment rendered.
Eather, J., being absent on account of illness, the Governor commissioned Honorable Wm.
D. Hatton, Judge of the Fifth Judicial District, to sit in his place.
February 21, 1950.
Per Curiam:
Rehearing denied.
____________
66 Nev. 435, 435 (1949) Rules of the Supreme Court
RULES OF THE
SUPREME COURT OF THE STATE OF NEVADA
____________
RULE I
1. Attorneys and Counselors.
All applicants for a license to practice as attorneys and counselors in Nevada will be
examined semiannually by the Board of Bar Examiners, as hereinafter provided. Such
examination shall be held commencing on the second Monday of March and September of
each year, commencing with the year 1949, at such places as may be fixed by the order of
said Board; provided however, that no applicant who has failed to pass two successive bar
examinations shall be permitted to take an examination until a period of one year has expired
after his second failure. As amended, July 21, 1948.
2. Affidavit of Applicants.
All applicants must be bona fide residents of Nevada for a period of at least six months
next preceding any examination mentioned in the foregoing paragraph, and an applicant for
examination in March of any year shall file an application prior to the 1st day of the January
preceding the examination, and an applicant for examination in September of any year shall
file an application prior to the 1st day of July of that year. Applications shall be filed in
triplicate with the secretary of the state bar of Nevada on forms furnished by the secretary of
the state bar, and one copy shall be immediately transmitted by such secretary to the clerk of
the court, and one copy shall be transmitted to the secretary of the board of bar examiners,
and the other copy shall remain in the file of the secretary of the state bar. Said application
shall be verified and shall state:
(a) When and where the applicant was born, the various places of his residence, and
giving at least two references in each place in which he was resided since attaining
the age of twenty-one years.
(b) Whether or not he has been engaged in business at any time; and, if so, when, where
and the kind of business.
(c) The names and post-office addresses of all persons by whom the applicant has been
employed, for a period of five years immediately preceding the making of his
application.
(d) The applicant's general and legal education, what schools he has attended, the length
of time in attendance at each, and whether or not he is a graduate of any school or
schools.
(e) Whether or not applicant has ever applied to any court for admission. If so, when
and where, and the results thereof.
(f) If a naturalized citizen, when and where naturalized.
(g) How long applicant has resided in the State of Nevada, which in any event must be
not less than six months next preceding the examination as above provided; whether
he is a bona fide resident, or whether he came into the state for the sole purpose of
being admitted to practice law.
(h) Whether or not the applicant has ever been admitted to practice in any jurisdiction.
If the applicant has been admitted to practice law in any jurisdiction he shall state
whether any disbarment or other proceedings of a like nature have ever been
instituted against him, or whether by resignation, withdrawal, or otherwise, applicant
has terminated or attempted to terminate his office as an attorney, and in either or
any of the cases above referred to, giving full particulars. Also, said applicant shall
present a certificate of the clerk of the court in the state in which the applicant last
practiced, certifying that the applicant is a member in good standing of the bar of
that state or district, and that no disbarment or other proceedings affecting his
standing as an attorney are pending and undisposed of before the court; which
certificate shall be supplemented by a letter from the secretary of the local bar
association of the city or county in which such applicant last resided {or in case
there be no local bar association, from the secretary of the state bar association),
certifying to his good moral character, and by a letter of recommendation from
the judge of the court of record before which he last practiced, together with
such other evidence of good moral character and fitness as may be required by
the court.
tary of the local bar association of the city or county in which such applicant last
resided (or in case there be no local bar association, from the secretary of the state
bar association), certifying to his good moral character, and by a letter of
recommendation from the judge of the court of record before which he last
practiced, together with such other evidence of good moral character and fitness as
may be required by the court. As amended, July 21, 1948.
3. Examination to Embrace.
The examination shall be of such type as shall be determined by the board of bar
examiners, and shall embrace the following subjects: Constitutional law, jurisdiction of
courts, equity, and evidence, and may also include questions upon all or any of the following
optional subjects:
Administrative law
Agency
Bankruptcy
Bills and notes
Community property
Conflict of laws
Construction and interpretation of state and federal statutes, but no questions will be
asked calling for memorized knowledge of statutes or local law
Contracts
Corporations
Criminal law
Insurance law
Mortgages and other security transactions
Persons and domestic relations
Personal property
Practice and procedure not involving knowledge of local law
Real property
Research problem
Sales
Taxation
Torts
Trusts Wills and administration of estates
Wills and administration of estates
and such other subjects as the board of bar examiners may determine. The board of bar
examiners is not obligated to adhere to any of the above optional subjects; but no substantial
change in, or addition to, any of the subjects of examination shall be made until such notice
thereof as shall be prescribed by the supreme court be first given. As amended, July 29, 1947.
4. Applicant Eligible, When.
No applicant shall be eligible for examination until his application shall have been referred
to the state bar of Nevada and shall have received the written approval of the board of bar
examinations of the state bar of Nevada and each applicant for permission to take a state bar
examination after January 1, 1950, shall present sufficient evidence to establish to the
satisfaction of the supreme court that said applicant has received a high school diploma and
has completed two years of college work in an accredited college or university and has
received a degree of bachelor of laws from a law school approved by the American Bar
Association's committee on legal education and admissions to the bar; provided, however,
that, subject to the restrictions of subdivision (1) of rule I, applicants qualified for
examination before January 1, 1950, who had taken and failed to pass one or more
examinations prior to January 1, 1950, and after May 17, 1946, shall be qualified to take
either the March 1950 or September 1950 examination but no further examinations unless
otherwise qualified under this rule. Applicants under the proviso of this rule shall be given an
additional thirty days within which to file their applications for the March 1950 examination.
As amended, December 30, 1949.
5. Examination by Board of State Bar Examiners.
The supreme court hereby confers upon the board of state bar examiners the power to
examine applicants, pursuant to section 24 of the state bar act of 1928, to wit: Chapter 13,
1928 Statutes of Nevada. Said board so empowered shall conduct a written and oral
examination of the applicant, the questions and answers to be reduced in writing.
board so empowered shall conduct a written and oral examination of the applicant, the
questions and answers to be reduced in writing. As amended, June 3, 1942.
6. Reports of Board and Procedure on Review.
When the board of bar examiners has completed any investigation that it deems necessary
and the examination has been completed and reduced to writing, the board shall return it to
this court, accompanied by their certificate showing whether or not the applicant is of good
moral character, has attained his majority, and is a bona fide resident of this state. Such
certification shall also contain the statement that the applicant was examined by the board;
that he had no knowledge or intimation of the nature of any of the questions to be propounded
to him before the same were asked by the board; that the answers to each and all of the
questions, except research questions, were taken down as given by the applicant without
reference to any books or outside aid; and whether or not the board feels that the applicant
fulfills the requirements for admission to practice, and a recommendation for or against such
admission.
Upon receipt of such recommendation for admission from the board of bar examiners, the
court may admit to the practice of law any and all applicants so recommended having a grade
of not less than 75%. Any applicant not so recommended by the board of bar examiners shall
be notified by the court, at applicant's address given in his application, of the fact that the
board of bar examiners have recommended that he be denied admission, and whether such
recommendation is based upon a failure to pass the examination or upon the applicant's
failure to qualify in any other particular. Any applicant so notified may, within a period of
sixty days from the date of such notice, file a verified petition for review with the court,
which shall be accompanied by proof of service of a copy thereof upon the board of bar
examiners of the state bar of Nevada. Such petition shall show therein that such applicant was
prevented from passing through fraud, imposition or coercion, or that he was prevented
from a fair opportunity to take the examination by the board of bar examiners.
coercion, or that he was prevented from a fair opportunity to take the examination by the
board of bar examiners.
The board of bar examiners or its representative may within ten days after such service
upon it of said copy of the petition for review, or within such further time as the court may
grant, serve upon the applicant and file in this court an answer. If any such answer be served
and filed, the applicant may, within five days thereafter, or within such further time as the
court may grant, serve and file a reply thereto.
The burden shall then be upon the applicant to establish to the satisfaction of this court
that the adverse recommendations of the board of bar examiners were based upon fraud,
imposition, coercion or lack of a fair opportunity to take the examination. Should an applicant
fail to meet this burden of proof, the court will refuse to review or disturb the adverse
recommendation of the board of bar examiners.
Any applicant shall have the right to inspect his examination papers, the questions given
and the ratings thereof, at the Supreme Court Building in Carson City, Nevada, at any time
after the justices of the supreme court have received the report of the board of bar examiners
recommending that the applicant be denied admission.
If an applicant be notified that he has failed to qualify in any other particular, other than
failure to pass the written examination, such applicant shall have the burden of proof to
satisfy the court that he should be admitted; and in the event an applicant has failed to qualify
in the opinion of the board of bar examiners by reason of failure to meet the character
standards required by the board of bar examiners, the applicant shall be entitled to review all
of the reports regarding his character submitted by the board of bar examiners except
confidential reports. There is reserved to the board of bar examiners the right to base its
opinion regarding an applicant's character upon confidential reports, providing such reports
are reduced to writing and submitted to the court for its confidential information.
and submitted to the court for its confidential information. As amended, July 29, 1947.
7. Deposit Required by Applicants.
All applicants for admission who have not previously been admitted in any jurisdiction
shall pay to the treasurer of the state bar of Nevada the sum of thirty-five dollars ($35) before
being entitled to have their applications further considered. Attorneys who have been
previously admitted to practice law in any jurisdiction, and who apply to be admitted to
practice law in Nevada shall pay to the treasurer of the state bar of Nevada the sum of one
hundred and twenty-five dollars ($125) before being entitled to have their applications further
considered. No payments shall in any event be refunded. In all cases where an applicant has
been denied admission but shall be permitted to again apply for admission to practice, he
shall be required at the time of such further application to make the same payments as on an
original application. As amended, October 4, 1950.
8. Procedure When Attorneys Represent Federal Government.
Attorneys employed by or representing the government of the United States, in matters
before the courts of this state in which the United States has a direct interest, shall be
permitted by the courts of this state to appear on behalf of the government and to represent
the interests thereof in any litigation in which the government of the United States is
interested. At the time of appearing in any such suit on behalf of the government such
attorney shall file with the clerk of the court, if there be one, and if there shall not be one,
then with the judge or justice of such court, an affidavit to the effect that the government of
the United States is interested in the matter before the court in which such appearance is
being entered; that such person represents the government and that his appearance is made in
performance of his duties as such representative of the government and is made in pursuance
of this section of this rule of the supreme court. As amended, June 3, 1942.
9. Nonresident Attorneys.
Attorneys admitted to practice in other jurisdictions, but not admitted to practice in
Nevada, may practice in Nevada only when associated with an attorney admitted to practice
in Nevada and who maintains an office in Nevada. Attorneys admitted to practice in Nevada
but who do not maintain an office in Nevada shall, on filing any pleading in the courts of
Nevada, either associate an attorney maintaining an office in Nevada, or designate an attorney
maintaining an office in the county in Nevada where in the pleading is filed, upon whom all
papers, process or pleading required to be served upon an attorney may be so served; the
name and office address of such attorney so designated shall be endorsed upon the pleading
so filed, and service upon such attorney shall be deemed to be service upon the attorney filing
the pleading or other paper. As amended, February 26, 1949.
10. Relating to the Armed Forces.
(Repealed December 30, 1949, effective January 1, 1951.)
11. Relating to Admission of Veterans.
(Repealed December 30, 1949, effective January 1, 1951.)
RULE II
Filing Transcript.
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.
Skaggs v. Bridgman, 39 Nev. 310; Miller v. Walser, 42 Nev. 497; Joudas v. Squire,
50 Nev. 42; Bowers v. Charleston Hill Nat. Mines, 50 Nev. 100; American Sodium Co.
v. Shelley, 50 Nev. 416; Lovelock Lands Inc. v. Lovelock L. & D. Co., 54 Nev. 1;
Sullivan v. Nevada Industrial Commission, 54 Nev. 301; Baer v. Lilenfeld, 55 Nev.
194; Taylor v. Nevada Gas Co., 55 Nev. 329; Lamb. v. Lamb, 55 Nev. 437; First
National Bank v. Abel, 56 Nev. 6; Boyd v. Hough, 56 Nev. 123; In re McGregor, 56
Nev. 407; Fallon v. Churchill County Bank Mortgage Corp., 57 Nev. 50; Squires v.
Mergenthaler Linotype Co., 60 Nev. 63; Burlington Trans. Co. v. Wilson, 61 Nev. 23;
Bowen v. I. H. Kent Co., 61 Nev. 285; Lewis, et al. v. Williams, 61 Nev. 255
61 Nev. 255; Styris v. Folk, 62 Nev. 209; Roberts v. Roberts, 63 Nev. 461; Hotels El Rancho
v. Pray, 64 Nev. 24; Nevada Desert Inn v. Burke, 64 Nev. 505.
RULE III
1. Appeal May Be Dismissed.
If the transcript of the record be not filed within the time prescribed by Rule II, the appeal,
after five days' notice in writing to the appellant, specifically stating the grounds thereof, may
be dismissed on motion of the respondent.
Copies of all documentary evidence and affidavits to be relied upon on the hearing of said
motion, other than the transcript of the record, shall be served with said notice. If witnesses
are to be called upon said hearing, their names must be stated in said notice, as well as the
substance of what they are expected to testify to.
2. May Be Restored.
(Repealed; effective January 16, 1935.)
3. Unless Restored, Dismissal a Bar.
(Repealed; effective January 16, 1935.)
Joudas v. Squire, 50 Nev. 42; Bowers v. Charleston Hill Nat. Mines, 50 Nev. 100; Lovelock
Lands, Inc., v. Lovelock L. & D. Co., 54 Nev. 1; First National Bank v. Abel, 56 Nev. 6;
Roberts v. Roberts, 63 Nev. 461; Idem., 64 Nev. 505.
RULE IV
1. Printed Transcripts.
All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the outer edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten lines each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines or
on the margin. Nothing smaller than minion (7-point) type leaded shall be used in printing.
2. Transcripts in Criminal Cases.
Transcripts in criminal cases may be printed in like manner as prescribed for civil cases.
3. Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
All transcripts of the record in any action or proceeding may be typewritten. The
typewriting shall be the first impression, clearly and legibly done, with best quality of black
ink, in type not smaller than small pica, upon a good quality of typewriting paper, thirteen
inches long by eight inches wide, bound in boards with flexible backs, in volumes of a size
suitable for convenient handling and ready reference, and arranged and indexed as required
by the rules of this court. When so typewritten, such transcript, in the discretion of the party
appealing, need not be printed, but, if printed, all the rules concerning the same shall still
apply thereto.
Nellis v. Johnson, 57 Nev. 18; Union Indemnity Co. v. Drumm, 57 Nev. 242.
4. To Be Indexed.
The pleadings, proceedings, and bill of exceptions shall be chronologically arranged in the
transcript; and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness; and
the transcript shall have at least one blank fly-sheet cover.
5. Record Not Conforming to Rules May Be Struck Out on Motion.
Any record which fails to conform to these rules may, upon motion and good cause shown,
be ordered to be struck from the files.
Robinson v. Kind, 25 Nev. 274; Segale v. Pagni, 49 Nev. 313.
RULE V
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima-facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause
in this court, subject to be corrected by reference to the written transcript on file.
printed copy so certified shall also be filed, and constitute the record of the cause in this
court, subject to be corrected by reference to the written transcript on file.
RULE VI
1. Cost of Typewriting or Printing Transcripts.
The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes, and pleadings, affidavits, briefs or other papers constituting the record
in original proceedings upon which the case is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than fifteen cents per folio of one hundred words, and
for one copy only, shall be taxed as costs for either printing or typewriting, except that when a
certified transcript of the proceedings shall be included in or shall constitute the bill of
exceptions, the reporter's statutory fees for transcription shall determine the expense of such
transcript and be taxed as costs; all other costs to be taxed by the clerk in accordance with the
fee bill.
For the purpose of computing the number of folios under this rule, each numerical figure
shall be deemed to constitute one word.
Brandon v. West, 28 Nev. 500; Richards v. Vermilyea, 42 Nev. 294; State v. Sadler, 25 Nev.
134; Sugarman v. Morse Bros., 50 Nev. 202; Curti v. Franceschi, 60 Nev. 429; Garaventa v.
Garaventa L. & L. s. Co., 61 Nev. 415.
2. To Serve Cost Bill, When.
Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court shall, within five days after the publication or notice of the decision of the
cause, file with the clerk and serve upon the opposite party a verified cost bill, setting forth or
stating the actual cost of such printing or typewriting, and no greater amount than such actual
cost shall be taxed as costs.
Candler v. Ditch Co., 28 Nev. 422; Zelavin v. Mining Co., 41 Nev. 1; Siebert v. Smith, 49
Nev. 312; Canepa v. Durham, 62 Nev. 430. 3.
3. Mode of Objecting to Costs.
If either party desires to object to the costs claimed by the opposite party, he shall, within
ten days after the service upon him of a copy of the cost bill, file with the clerk and serve his
objections. Said objections shall be heard and settled and the costs taxed by the clerk. An
appeal may be taken from the decision of the clerk, either by written notice of five days, or
orally and instanter, to the justices of this court, and the decision of such justices shall be
final. If there be no objections to the costs claimed by the party entitled thereto, they shall be
taxed as claimed in his cost bill.
In Re Hartung's Estate, 39 Nev. 200; State v. Sadler, 25 Nev. 134; Lovelock Lands Inc., v.
Lovelock L. & D. Co., 54 Nev. 465.
Query: Can cost bill be amended? State v. District Court, 26 Nev. 253.
4. Endorsed Upon Remittitur.
In all cases where a remittitur or other final order is sent to a district court or other inferior
tribunal, the costs of the party entitled thereto as taxed by the clerk shall be endorsed upon
such remittitur or order, and shall be collected as other costs in such district court, or other
inferior court or tribunal, and shall not be subject to retaxation in such district court or other
tribunal.
RULE VII
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record as may be
required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
State v. Bouton, 26 Nev. 34, 39; Christensen v. Floriston P. Co., 29 Nev. 552
P. Co., 29 Nev. 552; Kirman v. Johnson, 30 Nev. 150; State v. Hill, 32 Nev. 187; Botsford v.
Van Riper, 32 Nev. 214; City of Fallon v. Churchill County Bank Mortgage Corp., 57 Nev. 1.
RULE VIII
ExceptionDiminution of Record.
Exceptions or objections to the transcript, bill of exceptions, the undertaking on appeal,
notice of appeal or to its service or proof of service, or any technical exception or objection to
the record affecting the right of appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term after
the transcript is filed, and must be noted in the written or the printed points of the respondent,
and filed at least one day before the argument, or they will not be regarded.
Alderson v. Gilmore, 13 Nev. 85; State v. Cal. M. Co., 13 Nev. 203, 209, 210;
Truckee Lodge v. Wood, 14 Nev. 310; Brooks v. Nevada Nickel Syndicate, 24 Nev.
264, 271; State ex rel. Launiza v. Justice Court, 29 Nev. 192, 200; Smith v. Wells
Estate Co., 29 Nev. 411, 416; Kirman v. Johnson, 30 Nev. 146, 150; State v. Hill, 32
Nev. 185, 187; Botsford v. Van Riper, 32 Nev. 214, 225; Skaggs v. Bridgman, 39 Nev.
310; Zelavin v. Tonopah Development Co., 41 Nev. 1; Sugarman Co. v. Morse Bros.,
50 Nev. 191. See section 8905 Nevada Compiled Laws 1929.
RULE IX
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
Robinson v. Kind, 25 Nev. 278; Twaddle v. Winters, 29 Nev. 89.
RULE X
1. Calendar.
The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the
parties; provided, that all cases, both civil and criminal, in which the appeal has been
perfected and the bill of exceptions settled, as provided in Rule II, and the transcript has
not been filed before the first day of the term, may be placed on the calendar, on motion
of either party, after ten days' written notice of such motion, and upon filing the
transcript.
before the first day of the term, unless by written consent of the parties; provided, that all
cases, both civil and criminal, in which the appeal has been perfected and the bill of
exceptions settled, as provided in Rule II, and the transcript has not been filed before the first
day of the term, may be placed on the calendar, on motion of either party, after ten days'
written notice of such motion, and upon filing the transcript.
Kress v. Corey, 65 Nev. 13.
2. Causes Placed Consecutively on Calendar.
Cause shall be placed on the calendar in the order in which the transcripts are filed by the
clerk.
3. Calendar Called on First Day of Term.
The calendar shall be called on the first day of each term and cases set for oral argument
upon a day certain, upon request of counsel upon either side of the case, or upon stipulation,
subject to the approval of the court. Requests for settings may be made by counsel in open
court or by written communication addressed to the clerk. Upon stipulation of counsel,
subject to the approval of the court, cases may be submitted on briefs filed without oral
argument. Where no request is made by stipulation or otherwise for the setting of a case, the
same may be passed or be set by the court of its own motion.
RULE XI
1. Time for Appellant to Serve BriefRespondent.
Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally. A brief must
designate the page and line, or the folio, in the record where the evidence or matter referred to
may be found, and in case of failure to do so the court may ignore the point made. As
amended April 20, 1940.
For failure to comply with the above rule, judgment may be affirmed: Goodhue v.
Shedd. 17 Nev. 140; Gardner v. Pacific Power Co., 40 Nev. 343.
But see: Smith v. Wells, 29 Nev. 415; Adams v. Rogers, 31 Nev. 161.
Errors assigned, but not briefed or orally argued, waived: Candler v. Ditch Co., 28 Nev. 164.
See, also, 94 Atl. Rep. 501; 109 N. E. 365; 92 Pac. 401; 72 Pac. 607; 94 Pac. 452.
Failure of respondent to file brief, see: Durant Nat. Bank v. Cummins, 148 Pac.
1022; Padilla v. Mason, 53 Nev. 226; Hartford Mng. Co. v. Home Lumber Coal Co., 61
Nev. 1; Hotels El Rancho v. Pray, 64 Nev. 25.
2. What Points and Authorities to Contain.
The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the points made.
3. Oral Argument.
The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein 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. Counsel shall not read from decisions nor argue more than one hour on each side
without permission of the court.
4. Counsel Limited in Oral Argument.
No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
5. Optional in Criminal Cases.
In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
6. When Submitted.
When the oral argument is concluded, the case shall be submitted for the decision of the
court.
7. Stipulation as to Time.
The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII
1. Number of Copies To Be Filed.
Besides the original, there shall be filed five copies of all printed transcripts, briefs, and
points and authorities, which copies shall be distributed by the clerk.
2. Briefs May Be Typewritten.
Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
3. Number of Copies of Typewritten Transcripts and Briefs To Be Files and Served.
When typewritten, but one copy of the transcript of the record need be filed in the case, but
a copy thereof shall be served upon the opposite party; provided, that when the official
reporter's certified transcript of the proceedings at the trial is a part of the settled bill of
exceptions, no copy of such transcript need be served as a part of the copy of the transcript on
appeal. Two copies of the briefs and points and authorities, viz., the first impression and a
copy thereof, shall be filed with the clerk, and a copy shall be served on each opposite party
who appeared separately in the court below.
Zelavin v. Tonopah Development Co., 41 Nev. 1; Gardner v. Pacific Power Co., 40 Nev. 343;
Guisti v. Guisti, 41 Nev. 349; Lovelock Lands, Inc. v. Lovelock L. & D. Co., 54 Nev. 1;
McGill v. Lewis, 61 Nev. 33; State v. Pansey, 61 Nev. 333. RULE XIV
RULE XIV
RULE XIV
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall, within the time for filing the petition, serve a copy of the
petition upon opposing counsel, who within ten days thereafter may file and serve a reply to
the petition, and no other argument shall be heard thereon. No remittitur or mandate to the
court below shall be issued until the expiration of the fifteen days herein provided, and
decisions upon the petition, except upon special order. The time herein provided for may be
shortened or extended, for good cause shown, by order of court.
The court may, on its own motion, recall a remittitur in any case, for good cause, and may
recall such remittitur, for good cause, upon application noticed or made within fifteen days
after the filing of the same in the trial court.
Case in which second petition for rehearing will not be granted: Ward v. Pittsburg
Silver Peak, 39 Nev. 193.
Questions raised for first time on petition for rehearing will not be considered: Nelson v.
Smith, 42 Nev. 302; In re Forney's Estate, 43 Nev. 227, 186 Pac. 678; State v. Ceja, 53 Nev.
281.
Exception: 4 Corpus Juris. 642.
It has been held that court loses jurisdiction to grant rehearing where petition if filed
after remittitur issues: Fisher v. Lukens, 178 Pac. 302.
No other argument will be heard on a motion for rehearing except such as may be contained
in petition therefor and the reply to said petition: Stockgrowers and Ranchers Bank of Reno v.
Milisich, et ux., 52 Nev. 475; State v. Ceja, 53 Nev. 281. See, also, Wood v. State, 60 Nev.
140; Clack v. Jones, 62 Nev. 77
See, also, Wood v. State, 60 Nev. 140; Clack v. Jones, 62 Nev. 77; In re Powell's
Estate, 62 Nev. 134.
RULE XVI
Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII
No Paper To Be Taken Without Order.
No paper shall be taken from the courtroom or clerk's office except by order of the court or
of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent, to be filed with the clerk.
RULE XVIII
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue or any other interlocutory
order made before trial will be heard at any regular or adjourned term upon three days' notice
being given by either appellant or respondent when the parties live within twenty miles of
Carson City. When the party served resides more than twenty miles from Carson City, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson City.
Peters v. Jones, 26 Nev. 267.
RULE XIX
Notice of Motion.
Except as otherwise provided, in all cases where notice of a motion is necessary, unless,
for good cause shown, the time is shortened by an order of one of the justices, the notice shall
be five days.
RULE XX
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit.
accruing costs of suit. The clerk of the court is prohibited from filing or registering any record
without first having received as a deposit the aforesaid fee.
RULE XXI
Extending or Shortening Time.
Except as otherwise provided in any of the foregoing rules, or when not otherwise
controlled by statute, the time provided in any of these rules within which an act shall be
done, may be extended or shortened by stipulation of the parties, or, upon good cause being
shown, by order of the court or a justice thereof.
American Sodium Co., v. Shelley, 50 Nev. 416.
RULE XXII
1. Procedure on Review.
When a review by the supreme court of the action of the board of governors of the state
bar of Nevada, or of any committee authorized by it to make a determination on its behalf,
pursuant to the provisions of the state bar act, is sought by a person complained against,
application for such review shall be filed with the clerk of the court within sixty days after the
filing in the court of a certified copy of the decision complained of. The application shall be
verified and shall be accompanied by proof of service of a copy thereof upon the board of
governors of the state bar.
Such application must be based upon the record alone, and must contain sufficient
averments to establish a prima facie case in favor of the party complained against, and, if
based upon a want of evidence sufficient to warrant the determination of the board of
governors, or the committee, it must fairly state all the material evidence relative to the point
as to which such want of evidence is claimed to exist.
The board of governors, or its representative, may, within ten days after said service upon
it of such copy of the application, or within such further time as the court may grant, serve
upon the applicant and file in this court an answer, which shall be limited to a brief statement
of the grounds of the order or determination, and matters in justification thereof; provided,
that it may also supply any evidence omitted or misstated in the application.
and matters in justification thereof; provided, that it may also supply any evidence omitted or
misstated in the application. If any such answer be served and filed, the petitioner may, within
five days thereafter, or within such further time as the court may grant, serve and file a reply
thereto.
The court will thereupon consider the matters so presented, and, good cause appearing,
will make an appropriate order to enable it, by hearing, reference, or otherwise, to review the
action complained of in whole or in such part as it may consider necessary. No good cause
appearing, the application will be denied. Adopted April 20, 1940.
____________
66 Nev. 455, 455 (1949) Rules of the District Court
RULES OF THE
DISTRICT COURT OF THE STATE OF NEVADA
____________
The following rules were approved in 1887 by all the district judges and by the supreme
court when the state was in one judicial district, under the act of March 4, 1885
(Stats. 1885, 60), and are still in force, excepting the amendments of October 25,
1911, which became effective April 1, 1912, and amendments effective April 14, 1946.
RULE I
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II
Calendars.
1. The clerk of each county of the state shall make three calendars for the district court of
his county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another he shall place all civil causes at issue upon a question
of law, and all motions of every nature, except ex parte motions, as soon as the issue is made,
or as soon as notice of motion is filed; and upon the third of which he shall place all criminal
business of every kind. The names of the attorneys of the respective parties shall be
appropriately placed on such calendars. The clerk shall on every Saturday forward to the
presiding judge of the court and also to the judge who is to sit in his county a full statement of
all court matters filed with him during the preceding week.
2. In districts having more than one judge the judges shall, by special rules, provide for
the division of the business in their district and the calendars of their courts shall be prepared
and kept in accordance with such division.
3. On all law days the clerk shall deliver to the judge or judges holding court in his county
the calendars showing the business before such judge or judges. All law matters on said
calendars at issue shall be called by the court and disposed of in order of filing, where
possible, unless continued for good cause.
by the court and disposed of in order of filing, where possible, unless continued for good
cause.
4. Each judge shall fix at least one law day in each month for the setting of cases for trial
on issues of fact, unless the business of his district or of any county thereof requires a
different arrangement.
5. Civil cases at issue upon questions of fact may be set for trial on the issues of fact on
any law day, five days' previous written notice of such application having been given by the
moving party to the opposite party or parties. In districts having more than one judge, civil
cases ready for trial or hearing upon default may be set for trial or hearing only in open court
upon any calendar or law day.
RULE III
Notice of Time When Court Will Sit To Be Given.
The judge who is to hold court in any county, where court is not held continuously, shall
give the clerk of such county notice of the time when court will sit. The clerk shall,
immediately upon receiving such notice, give all the attorneys having business in said court,
as shown by the calendar, and also all attorneys practicing in his county, notice in writing of
the time when court will be held. He shall also give notice of the time of holding court in
some newspaper published at the county seat, provided it can be done without expense.
RULE IV
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, and on law days as elsewhere
provided in these rules, the law calendar will be called and disposed of. The trial calendar
will be called and disposed of. The trial calendar will then be called in districts or counties
where a trial calendar day is not otherwise fixed as provided in Rule II and causes at issue on
questions of fact be set for trial for a time certain or otherwise disposed of. Parties are
expected to be ready to try their causes, whether at issue on questions of law or fact, when the
calendar is called, and in the order in which they are set. They may fix the day of trial by
stipulation, in writing or in open court, subject to the approval of the court or judge.
the court or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdDemurrers, motions, and questions of law.
FourthIssues arising subsequent to the calendar shall be set.
FifthProbate business, when there is no contest on questions of fact.
SixthTrial of causes as previously set.
RULE V
Law Day.
Each district court shall designate a day or days on which law questions shall take
precedence, when at issue, and be heard without previous setting or notice, unless the court,
for good cause, continue the consideration thereof. The absence of an attorney or party shall
not in itself be sufficient ground for such continuance, where the opposing attorney or party,
whether the moving party or not, has given at least five days' written notice that he will call
up the law question sought to be determined on a law day specified in said notice. When it
appears to the court that such written notice has been given, he shall not, unless the other
business of his court requires such action, further continue the matter specified in said notice
unless upon a showing by affidavit or oral testimony, that such continuance is reasonably
necessary and is not sought merely for delay or by reason of neglect. Effective April 19, 1946.
Slack v. Schwartz, 63 Nev. 51.
RULE VI
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
Slack v. Schwartz, 63 Nev. 51. RULE VII
RULE VII
RULE VII
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs to such judge, with his consent, and the decision may be filed
thereafter at any time, which decision shall fix the time when the decision of the court is to be
complied with; and in all such cases the party who is required to act by such decision shall
receive due written notice thereof from the opposite party. Time for complying with such
decision shall commence to run from the time when service is made in the manner required
by the statutes for service of pleadings in a case; provided, that when the parties are present
by their respective attorneys when the decision is rendered, no notice shall be required.
Slack v. Schwartz, 63 Nev. 51.
RULE VIII
Demurrers.
1. When a demurrer is interposed in any case, if it be made to appear to the satisfaction of
the court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit.
2. In other cases, when a demurrer is sustained or overruled, the losing party shall be
allowed to amend or plead, as the case may be, as of course, within ten days from the decision
on the demurrer, if the losing party is present by his attorney when the decision is rendered,
otherwise within ten days from the receipt of written notice of the decision from the clerk or
the prevailing party. The court may by its order fix a different time.
3. Whenever a general demurrer is interposed counsel for the opposite party, by written
notice served at least three days before the hearing of the demurrer, may require the
counsel for demurrant to furnish him with a written statement of the points and
authorities upon which he expects to rely in presenting the demurrer.
three days before the hearing of the demurrer, may require the counsel for demurrant to
furnish him with a written statement of the points and authorities upon which he expects to
rely in presenting the demurrer. This statement must be furnished at least one day before the
argument. Upon failure to do so the court may, in its discretion, overrule the demurrer
without permitting argument.
RULE IX
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving party, except pleadings or
other records of the court, shall be served with the notice of motion. The notice of motion
shall be in writing, and shall specify the papers to be used and the names of witnesses to be
examined by the moving party, and the grounds upon which the motion is made; provided,
that the court may, upon good cause shown, shorten or enlarge the time for hearing. For a
failure to comply with this rule the motion shall be denied.
Whitman v. Moran, 54 Nev. 276; Abell v. District Court, 58 Nev. 89, Farnow v. District
Court, 64 Nev. 117. RULE XI
RULE XI
RULE XI
Hearings of Motions.
Upon reading and filing the notice of motion, with due proof of the service of the same,
and of the papers mentioned therein, if no one appears to oppose the motion, the moving
party shall be entitled to have the motion decided. Upon the hearing, the affidavits to be used
by either party shall be endorsed and filed before the affidavits shall be used. The manner of
making motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
FourthNo motion once heard and disposed of shall be renewed in the same cause, nor
shall the same matters therein embraced be reheard, unless by leave of the court granted upon
motion therefor, after notice of such motion to the adverse parties.
Edwards v. Jones, 49 Nev. 342; Whitman v. Moran, 54 Nev. 276; Slack v. Schwartz, 63 Nev.
51; Canepa v. Durham, 63 Nev. 247.
RULE XII
Hearings of Motion for ContinuanceTestimony of AbsenteesCounter-Affidavits.
All motions for the continuance of causes shall be made on affidavit, and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absence witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or dispositions, and
the causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith and not for delay merely.
And no continuance will be granted unless the affidavit upon with it is applied for
conforms to this rule, except where the continuance is applied for in a mining case, upon the
special ground provided by statute. A copy of the affidavits upon which a motion for a
continuance is made, shall be served upon the opposing party as soon as practicable after the
cause for the continuance shall be known to the moving party. Counter-affidavits may be used
in opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII
Attorneys as Witnesses.
When a lawyer is a witness for his client, except as to merely formal matters, such as the
attestation or custody of an instrument or the like, he shall not argue the cause or sum it up to
the jury without the permission of the court. In no event shall such lawyer be permitted to
comment upon his own testimony before the court or a jury.
RULE XIV
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV
DepositionsAffidavitSettling Interrogatories.
A party making application for a commission to take the deposition of a witness, out of the
state, shall serve, with the notice of such application, an affidavit setting forth the grounds for
such application, and a copy of direct interrogatories; and at least one day before the hearing
of the application, the adverse party shall serve upon the moving party a copy of the
cross-interrogatories. The direct and cross-interrogatories shall be settled at the time of
hearing the application, unless the court or judge otherwise direct; provided, that the parties
may agree to the interrogatories without submission to the court or judge, or may stipulate
that the deposition may be taken without written interrogatories.
RULE XVI
Publications of Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
Cited, Wier v. Washoe H. & S. Co., 31 Nev. 528, 529.
RULE XVIII
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose property
is attached against damages, the court or judge may require an additional undertaking to be
filed, and if not filed, the attachment shall be dissolved. No attachment shall be dissolved by
reason of any defect in the attachment papers that can be amended without affecting the
substantial rights of the parties.
Ex. rel. Nenzel v. District Court, 49 Nev. 145.
RULE XXI
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause thereof, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrances of the mortgaged premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to
compute the amount due on the mortgage, preparatory to the application for decree of
foreclosure.
RULE XXIV
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for a new trial, the adverse party, unless the court otherwise directs, shall have the same
number of days to propose amendments or file counter-affidavits as was allowed by such
order to file such statement or affidavit.
RULE XXV
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or order in
such amount as may be fixed by the judge. An order to stay execution, or other proceedings in
an action, shall be of no effect until a copy of notice thereof is served upon the opposite party,
or his attorney, and any other party or officer whose proceedings are to be stayed thereby,
unless said attorney or officer be present at the time of making such order. And if an
execution or other order shall have been issued to the sheriff, coroner, elisor, or other person,
he shall return the same with the cause therefor and his proceedings thereunder endorsed
thereon, upon receiving from the clerk a certificate, under the seal of the court, of the granting
of the stay of execution or other proceedings. The certificate shall state the title of the action,
the order staying the execution or other proceedings, and the date of such order, together with
the filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a
vacation of the order.
filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a vacation of
the order.
Cited, Fervert v. Swift, 19 Nev. 401, 402; Gottwals v. Rencher, 60 Nev. 41.
RULE XXVII
Stipulation.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
proceedings therein, will be regarded, unless the same shall be entered in the minutes in the
form of an order, by consent, or unless the same shall be in writing, subscribed by the party
against whom the same shall be alleged, or by his attorney or counsel.
Cited, Haley v. Eureka Bank, 20 Nev. 410, 422, 425; Stretch v. Montezuma M. Co.,
29 Nev. 163, 167.
RULE XXVIII
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
Cited, State v. Helm, 66 Nev. 310.
RULE XXIX
Guardians.
No person shall be appointed guardian ad litem, either upon the application of the infant or
otherwise, unless he be the general guardian of the infant, or an attorney, or other officer of
this court, or is fully competent to understand and protect the rights of the infant; and has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
Cornbleet v. District Court, 58 Nev. 227. RULE XXX
RULE XXX
RULE XXX
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
RULE XXXI
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII
To Furnish to the Clerk.
The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV
Retax Costs.
The party against whom judgment is entered shall have five days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV
Merchanics' Liens.
In actions to enforce mechanics' liens, other lien-holders coming in under the notice
published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts
thereof, and the plaintiff and other parties adversely interested shall be allowed five days
to answer such statements.
the state, or be represented by counsel, a written statement of the facts constituting their liens,
together with the dates and amounts thereof, and the plaintiff and other parties adversely
interested shall be allowed five days to answer such statements.
RULE XXXVI
Notice of Order Extending Time.
No order, made on ex parte application and in the absence of the opposing party, provided
he has appeared, granting or extending the time to file any paper or do any act, shall be valid
for any purpose, in case of objection, unless written notice thereof is promptly given to such
opposing party. Such notice shall be given as other notices are given, or may be given by
registered mail sent to the last known address of the attorney for such party, or, if he has no
attorney, to such party himself. If the address of such attorney or party be not known, then the
notice may be addressed to such attorney or party in care of the clerk.
Portland Cattle Loan Co. v. Wheeler & Stoddard, Inc., 50 Nev. 205; O'Neill v. Vasiliou, 51
Nev. 236; Taylor v. Taylor, 59 Nev. 70.
RULE XXXVII
Appeal from Justice's CourtDismissed, When.
When an appeal from the justice's court to this court has been perfected, and the papers are
not filed in this court within fifteen days from the day of filing the undertaking on appeal, this
court, on the production of a certificate from the justice to the effect that an appeal has been
taken and perfected, but the papers have not been ordered up, or the proper costs not paid, or
upon showing that any other necessary steps have not been taken, shall dismiss the appeal at
the cost of the appellant.
Cited, Andrews v. Cook, 28 Nev. 268.
RULE XXXVIII
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the provision of
the 539th section of the practice act, to be filed in the office of the clerk of this court
within fifteen days from the day upon which the order of the justice is made directing the
transfer of the case.
the practice act, to be filed in the office of the clerk of this court within fifteen days from the
day upon which the order of the justice is made directing the transfer of the case. If the papers
are not so filed the case shall be dismissed, upon filing a certificate from the justice to the
effect that he has certified the papers as required by said section, but that the same have not
been ordered up, or the proper costs paid; or if it shall appear that such papers are not filed in
this court by reason of the neglect of the plaintiff to pay the fees of the clerk for filing the
same.
RULE XXXIX
Duties of the Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passageway to the bar clear for ingress or egress.
RULE XL
Instructions To Be Settled and Given, When.
Before the argument begins counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and deliver them to the court. The court will hear objections
to instructions and if either party request it will settle the instructions in advance of the
argument and permit counsel to use them when addressing the jury, but this shall not prevent
the giving of further instructions which may become necessary by reason of the argument.
Regarding the giving of instructions in civil cases, see sections 8766-8768; in
criminal cases, section 10958, Nevada Compiled Laws 1929.
RULE XLI
Trials.
When any district judge shall have entered upon the trial or hearing of any cause or
proceedings, demurrer or motion, or made any ruling, order, or decision therein, no other
judge shall do any act or thing in or about said cause, proceeding, demurrer, or motion,
unless upon the written request of the judge who shall have first entered upon the trial or
hearing, of said cause, proceeding, demurrer, or motion; provided, that the judges in any
district having more than one judge shall adopt such rules as they deem necessary to
provide for the division and disposal of the business of their district.
cause, proceeding, demurrer, or motion, unless upon the written request of the judge who
shall have first entered upon the trial or hearing, of said cause, proceeding, demurrer, or
motion; provided, that the judges in any district having more than one judge shall adopt such
rules as they deem necessary to provide for the division and disposal of the business of their
district.
Cited, Twaddle v. Winters, 29 Nev. 88, 93.
Ex rel. Stokes v. District Court, 55 Nev. 115.
State v. Blackwell, 65 Nev. 411.
RULE XLII
Writs.
When an application or petition for any writ, rule, or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII
Duties of Judge.
No judge except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act; provided, that this rule may be abrogated or modified in districts
having more than one judge, in the manner indicated in Rule XLI.
Cited, Twaddle v, Winters, 29 Nev. 88, 97.
RULE XLIV
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land.
The adverse party shall, within ten days after service of the complaint, file and serve his
answer, in which answer he shall set forth the facts upon which he relies.
RULE XLV
Vacating Judgments and OrdersTime to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified, or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification, or correction shall give notice to
the adverse party of a motion thereof, within six months after such judgment was rendered,
order made, or action or proceeding taken; or unless all of the parties to the action who are
affected by the judgment, order, or other judicial act or proceeding shall jointly, by petition
personally signed and verified by such party or parties and duly acknowledged, request the
court so to do, either before or after said six months' period.
Lewis v. Lewis, 53 Nev. 398; Crowell v. District Court, 54 Nev. 400; Aseltine v.
District Court, 57 Nev. 269; Jones v. District Court, 59 Nev. 645; Gottwals v. Rencher,
60 Nev. 41. Idem., 60 Nev. 56; Lauer v. District Court, 62 Nev. 80; Mortimer v. Pac.
Sts. S. & L. Co., 62 Nev. 172; Engle v. Engle, 63 Nev. 99; Mazour v. Mazour, 64 Nev.
249; Murphy v. Murphy, 64 Nev. 451; Schneider v. District Court, 64 Nev. 34; Finley
v. Finley, 65 Nev. 117; Murphy v. Murphy, 65 Nev. 271; Zeig v. Zeig, 65 Nev. 468;
Smith v. Smith, 68 Nev. ___, 226 P.2d 279.
RULE XLVI
Appearances Not by Attorney Must Be Acknowledged.
Unless appearing by an attorney regularly admitted to practice law in Nevada and in good
standing, no entry of appearance or initial pleading purporting to be signed by any party to an
action shall be recognized or given any force or effect by any district court unless the same
shall be acknowledged by the party signing the same before a notary public or some other
officer having a seal and authorized by law to administer oaths.
RULE XLVII
Divorce Actions To Be Reported and Transcribed.
When ordered by the court, the evidence in divorce, annulment of marriage, and separate
maintenance actions shall be reported and transcribed and the transcript thereof filed with the
pleadings in the case. The cost of such transcript shall be immediately computed by the
reporter and paid by the party ordered by the court to do so to the clerk of the court, who shall
pay the same to the reporter upon receiving from the latter the transcript of evidence, and not
otherwise.
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