Nevada Reports 1950 (67 Nev.) PDF

67 Nev.
1, 1 (1950)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 67
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67 Nev. 1, 1 (1950) Las Vegas Machine & Engineering Works v. Roemisch
LAS VEGAS MACHINE & ENGINEERING WORKS, INC., a Nevada Corporation,
Appellant, v. RUSSELL H. ROEMISCH, Respondent.
No. 3590
January 3, 1950. 213 P.2d 319.
Action by Russell H. Roemisch against Las Vegas Machine & Engineering Works, Inc., a
Nevada corporation, to recover on a note for money advanced to the corporation, wherein
defendant cross-complained for contribution for share of losses in carrying out a construction
contract.
From a judgment and order denying motion for new trial in the Eighth Judicial District
Court for Clark County, A. S. Henderson, judge, Department No. 2, the defendant appealed.
The Supreme Court, Badt, J., affirmed the judgment, holding that the contract between
the parties did not make them partners or joint adventurers so as to make the plaintiff liable
for contribution for losses of the defendant in carrying out the contract.
1. Joint Adventures.
In determining whether a contract is one of joint adventure and governed by the law of copartnerships,
rights of the parties to the contract cannot be determined simply by giving it a name, but intention of
the parties, no rights of third parties being involved, must be determined from the
instrument itself if this can be done.
name, but intention of the parties, no rights of third parties being involved, must be determined from the
instrument itself if this can be done.
2. Partnership.
Articles of copartnership are construed by the ordinary rules for interpreting contracts.
3. Trial.
In suit on note for money advanced to defendant which cross-complained for contribution for plaintiff's
share of losses under an agreement which defendant pleaded by its legal effect, where trial court made its
findings that parties had not entered into an agreement, defendant's motion to modify the findings by
incorporating the allegations of the answer respecting legal effect of the agreement was properly denied.
While in the construction of a contract a provision for sharing of profits is important, there must be
something more than that to constitute the contract one of joint adventure.
While a provision for sharing losses is important in construing an agreement for a joint adventure, it is
not essential, but neither an agreement to share profits nor losses is conclusive in construction of the
contract, but the intention of the parties controls.
6. Joint AdventuresPartnerships.
Under contract of joint adventure and partnership it is competent for the partners to determine by
agreement as between themselves the basis on which losses shall be borne, and they may agree to share
such losses on an equal basis or in the same proportion as is provided for in division of profits, or limiting
or eliminating liability of particular partners as to losses.
There is no one exclusive test in determining whether an agreement is one of joint adventure or
partnership, and the relationship depends upon the intention of the parties, and every case must stand upon
its own merits.
8. Statutes.
Where the California Uniform Partnership Act was virtually identical with the Nevada Uniform
Partnership Act a decision of Supreme Court of California construing California act was appropriately
considered by the Nevada court. Civ.Code Cal., sec. 2395 et seq.; N.C.L.1929, sec. 5028.06 et seq.
An agreement whereby parties agreed to a three-way division of profits above expenses in the
performance of a construction contract under which defendant assumed responsibility for the performance
thereof and plaintiff agreed to loan the corporation not exceeding $5,000 to assist in expenses did not,
under the facts, create a contract of partnership or "joint adventure" so as to make plaintiff
liable for contribution for losses of the defendant in carrying out the contract.
joint adventure so as to make plaintiff liable for contribution for losses of the defendant in carrying out
the contract. N.C.L.1929, secs. 5028.05, 5028.06(3, 4), 5028.17.
Taylor & Gubler, of Las Vegas, for Appellant.
A. W. Ham & A. W. Ham, Jr., and John W. Bonner, all of Las Vegas, for Respondent.
OPINION
By the Court, Badt, J.:
Does the contract entered into by these litigants make them joint adventurers and governed
by the law of copartnerships, including the right of contribution to share the loss suffered by
the alleged joint adventure?
It will avoid confusion to call the parties by their namesplaintiff and respondent being
referred to as Roemisch, defendant and appellant being called the Machine Works, and the
third party to the contract (not a party to the suit) being called Perry. These parties on April 7,
1947 entered into the following written contract:
Contract
The parties whose names are signed below mutually agree to a three-way division of
profits over and above all expenses incurred in the performance of a certain contract entered
into between the Las Vegas Machine & Engineering Works, a Nevada Corporation, and
Morrison-Knudsen Company for the erection of sheet metal roofing, walls and flashing on a
building for the U. S. Gypsum Co. at Plaster City, California.
The Las Vegas Machine & Engineering Works, Inc., assumes responsibility for
performance of the contract. R. C. Perry, as consideration for his part, agrees to diligently
superintend all of the construction work.
R. H. Roemisch participates because of services rendered in relation to the contract and to
the loan to the corporation, not to exceed $5,000, to assist in financing payroll and
expenses."
corporation, not to exceed $5,000, to assist in financing payroll and expenses.
On April 15, 1947, Roemisch advanced $2,500 to the Machine Works and took its
promissory note payable June 15, 1947, with interest at 6%. The Machine Works completed
the construction contract in the latter part of January, 1948, at a loss of $16,313.56, the
difference between the $84,000 it paid for labor and materials and the amount it received
from Morrison-Knudsen. It never made a demand on either Roemisch or Perry for
contribution for this loss, but when Roemisch sued on the note on September 17, 1948, the
Machine Works, while admitting nonpayment of the note, answered and cross-complained by
setting up its claim to contribution for Roemisch's share of the loss and seeking a judgment
against Roemisch therefor, after crediting the amount of the note. The trial court found that
the parties had not entered into an agreement of joint adventure and rendered judgment for
Roemisch on the note. The Machine Company has appealed from the judgment and from the
order denying its motion for a new trial, insisting on its right to an affirmative answer to the
question posed in the opening sentence of this opinion.
Roemisch, Perry and W. H. Kelsey, president of the Machine Works, all testified briefly at
the trial. With Kelsey on the stand under cross-examination, Roemisch's counsel called for
the production of the contract between the Machine Works and Morrison-Knudsen, and the
court remarked that it would order the production of the contract unless the information
desired could be adduced by parol. After developing the fact that the Machine Works and
Morrison-Knudsen were the sole parties to the contract, the matter of its production in court
was dropped. The work was done pursuant to plans and specifications furnished Perry on the
job. Perry took his orders from Kelsey and received his pay from the Machine Works. A
special account was set up in the name of the Machine Works, and Perry had full charge of
this account. Roemisch was never at the job and it does not appear that he saw or had
knowledge of any of the receipts under the contract, that he ever saw the contract, that
he knew anything about any of the disbursements aggregating some $S4,000, or that he
saw any of the books or accounts.
and it does not appear that he saw or had knowledge of any of the receipts under the contract,
that he ever saw the contract, that he knew anything about any of the disbursements
aggregating some $84,000, or that he saw any of the books or accounts. Roemisch did two
things. (1) He procured the contract. Whether he had it in the bag before the agreement
with the Machine Works and Perry, and what means or influence he used to get it, do not
definitely appear. (2) He lent $2,500 to the Machine Works and took its 60 day note. He was
to be repaid with interest within 60 daysnot out of any proceeds of the construction
contract, not to any extent by Perry, not by the three (including himself) who were thus
associated, but by the Machine Works alone. Thus, he was to be repaid within 60 days the
money personally advanced to the Machine Works for the latter's prosecution of a
construction contract that required about nine and one-half months to complete.
1, 2. Defendant's position is simply this: (1) The agreement for the equal division of
profits, for the performance of the construction contract by the Machine Works, for the
superintendence of the job by Perry, and Roemisch's promise to advance money to the
Machine Works to assist in financing payrolls and expenses and his having procured the
contract in the first place, constituted the contract one of joint adventure; (2) such contracts
are governed by the law of partnership; (3) under our statute (the Uniform Partnership Law)
all partners must contribute to the losses; and (4)to make this logical sequence
applicableIt is not the intention of the parties, but the legal effect of the agreement which
is controlling. The fallacy of this position is that we cannot determine the rights of the
parties to this contract simply by giving it a name. Nelson v. Abraham, 29 Cal.2d 745, 177
P.2d 931. As with other contracts, the intention of the parties (no rights of third parties being
involved) must be determined from the instrument itself if this can be done. There is no
principle of hermeneutics of peculiar application to articles of copartnership.
of copartnership. They are construed by the ordinary rules for interpreting written contracts.
Walker v. Patterson, 166 Minn. 215, 208 N.W. 3, 7. See also Simpson v. Richmond Worsted
Spinning Co., 128 Me. 22, 145 A. 250, and Fuller v. Laws, 219 Mo.App. 342, 271 S.W. 836.
The contract says simply this:
1. The profits of the construction of the building by defendant for Morrison-Knudsen are
to be equally shared by defendant, plaintiff and Perry.
2. Defendant assumes responsibility for performance.
3. The consideration for Perry's getting a third of the profits is his agreement to diligently
superintend all construction work.
4. The reason why plaintiff gets a third of the profits is that he procured the contract and
agrees to lend defendant not to exceed $5,000 to assist in financing payrolls and expenses.
The brief testimony adduced adds the following information with reference to the
foregoing: 1. There were no profits, but a loss of $16,313.56. 2. Defendant did assume full
responsibility for the performance. Neither the construction contract nor the plans and
specifications nor any details of the construction appeared in the evidence other than the
general statement of Mr. Kelsey, president of the Machine Works, that we carried out a
contract there which calls for the sheathing and covering of all their new buildings. This, as
noted, involved the expenditure of some $84,000 for labor and materials and occupied some
nine and one-half months. The site was Plaster City, California. 3. Perry superintended the
job. His salary was paid by the Machine Works. He got orders from Kelsey, an officer of that
corporation, who was his superior on the job and who had full control. A special account was
set up in El Centro, California, in the name of the Engineering Works of which Perry had full
charge, and apparently his salary and all other disbursements, aggregating the $84,000, were
paid out of this account.
were paid out of this account. If any books were kept, there is nothing in the evidence to
indicate that Roemisch ever saw them or had any knowledge of them. They were not
produced in court. No accounting was ever made. None of the parties sought an accounting.
4. Roemisch did nothing but get the contract. He advanced, not to the venture but to the
Machine Works, $2,500. Nor was this money to stay in the venture. As has been seen, it was
repayable by the Machine Works to Roemisch June 15, 1947, although the contract was not
completed till the latter part of January, 1948. Presumably progress payments under the
contract provided sufficient financing to make further loans from Roemisch unnecessary. For
all that appears in the evidence, the Machine Works might have had on hand, when entering
into the contract, the major part of the materials for the sheathing and covering of the
buildings for Morrison-Knudsen Company, and nothing appears with reference to prices at
which such materials were or had been acquired and prices at which they were charged to the
job.
3. It is of some significance that the Machine Works deliberately chose not to plead in
haec verba the very brief written contract, but to plead its legal effect, denominating it an
agreement of joint adventure by the terms of which the parties hereto and the said Ray C.
Perry undertook to perform a certain construction job with Morrison-Knudsen Company. * *
* Defendant further alleged that by the terms of said agreement the said parties were to
share in the profits and losses of the said contract, share and share alike. * * * (Emphasis
added.) Defendant did not state whether the contract thus pleaded was written or oral.
Conceding the right of defendant to plead its alleged contract by its legal effect, we are
nonetheless faced with the fact that defendant alleged that such contract by its terms provided
(1) that the three parties undertook to perform the construction job, and (2) that they were to
share the losses. These terms, on the contrary, were not in the written contract.
written contract. Yet when the court made its findings to the simple effect that the parties had
not entered into an agreement of joint adventure, defendant moved to modify the same, not by
incorporating the written agreement (as it would have had a perfect right to do) but by
incorporating the identical allegations of the answer, which motion the court quite properly
denied. If, as stated in defendant's opening brief, the joint adventure agreement speaks for
itself, it could have been asked to speak for itself in defendant's answer and in its requested
findings.
4-7. Defendant places great reliance on Botsford v. Van Riper, 33 Nev. 156, 110 P. 705;
Miller v. Walser, 42 Nev. 497, 181 P. 437; Lind v. Webber, 36 Nev. 623, 134 P. 461, 135 P.
139, 141 P. 458, 50 L.R.A., N.S., 1046, Ann.Cas.1916. 1202, all defining situations in which
the parties were held to have entered into a joint adventure agreement under which their
rights and liabilities are determined by the principles governed by partnership. Reference is
also made to discussions of this subject in the annotations found at 48 A.L.R. 1055 and 63
A.L.R. 909. Nothing will be gained by an extensive discussion of the Nevada cases or the
cases contained in the annotations. While they support the general propositions of law
advanced by appellant and while they contain many examples of agreements that were
construed to constitute joint adventures under which the parties were liable for losses as well
as entitled to profits, they likewise contain many examples of contracts not having such
effect. They also definitely establish the principle that while in the construction of a contract a
provision for the sharing of profits is important, there must be something more than this to
constitute it a contract of joint adventure. See cases cited in 63 A.L.R. 911. In like manner
many of these cases hold that while a provision for sharing losses is important in construing
the agreement, it likewise is not essential. In the instant case the main affirmative and
outstanding covenant is that the parties mutually agree to a three way division of profits over
and above all expenses incurred in the performance" of the contract between the Machine
Works and Morrison-Knudsen.
and above all expenses incurred in the performance of the contract between the Machine
Works and Morrison-Knudsen. Nothing is said with reference to losses. The agreement to
share the profits is indeed important. So is the absence of an agreement to share the losses.
Neither is conclusive upon us in our construction of the contract. We are confronted
inevitably with the necessity of determining the intention of the parties. First National Bank
of Eugene v. Williams, 142 Or. 648, 20 P.2d 222. The trial court found that they had not
entered into an agreement of joint adventure, and concluded simply that Roemisch was
entitled to judgment on his note. As we have indicated, the question is not to be solved by
giving the contract a name nor by refusing to give it a name. Under contracts of joint
adventure, as well as under partnership contracts, it is entirely competent for the partners to
determine by agreement as between themselves, the basis on which losses shall be borne.
They may agree to bear such losses on an equal basis or in the same proportion as provided
for in division of profits or limiting or eliminating the liability of particular partners as to
losses. 47 C.J. 791, Partnership, sec. 233; Whetstone v. Purdue, 107 Or. 86, 213 P. 1014.
Every lead pursued leads to the conclusion that there is no one exclusive test, that no single
arbitrary test is conclusive, that the relationship depends upon the intention of the parties and
that every case must stand upon its own merits.
8. Appellant relies upon various provisions contained in Nevada's Uniform Partnership
Act. Thus it cites N.C.L., sec. 5028.06 to the effect that in determining whether a partnership
exists, these rules shall apply: * * * (4) The receipt by a person of a share of the profits of a
business, is prima facie evidence that he is a partner in the business * * *. But Roemisch
received no share of any profits. There were no profits. Roemisch was indeed to receive
interest on his loan to the Machine Works, but the same code section provides that even the
receipt of the share of the profits carries no inference of partnership if such payment is
received as interest on a loan.
inference of partnership if such payment is received as interest on a loan. Appellant further
relies on N.C.L., sec. 5028.05 defining a partnership as an association of two or more
persons to carry on as co-owners a business for profit. No co-ownership appears. Appellant
further relies on N.C.L., sec. 5028.17, which provides in part: The rights and duties of the
partners in relation to the partnership shall be determined, subject to any agreement between
them, by the following rules: * * *. These rules include the right of contribution for a share
of the losses. Respondent in turn calls our attention to sec. 5028.06(3) which reads: The
sharing of gross returns does not of itself establish a partnership, whether or not the persons
sharing them have a joint or common right or interest in any property from which the returns
are derived. The California Uniform Partnership Act is virtually identical with ours. See
Civil Code, Cal., sec. 2395 et seq. Construing that act the Supreme Court of California in
Spier v. Lang, 4 Cal.2d 711, 53 P.2d 138, 141, said: The main reliance of the plaintiffs is on
the provision of the contract that the defendants were to share in a division of the profits. But
this feature of the agreement has long been held not to require a conclusion that a partnership
relation existed where also there was no joint participation in the management and control of
the business, and the proposed profit-sharing was contemplated only as compensation or
interest for the use of the money advanced. (Citing numerous California cases.) The foregoing
conclusion and cited cases are in conformity with the definition of the partnership relation
contained in the Civil Code (section 2400, Stats. 1929, p. 1898, formerly contained in section
2395), which includes as an essential element the joint participation in the conduct of the
business. The presence of the same element is necessary to constitute the parties joint
adventurers. (Citing numerous cases.) This is in line with numerous other cases to the effect
that when the profit sharing is mainly by way of compensation, the partnership relationship is
not created.
not created. Thus in Griffiths v. Von Herberg, 99 Wash. 235, 169 P. 587, 588, the court said:
The mere fact of a share in profits of itself constitutes neither a partnership nor a joint
adventure. There must be other facts showing that relationship to have been the intent of the
parties, or such as to estop denial of it as against third parties. There is no question of third
parties here, but one simply between the parties, and we think the allegations show that the
contract was one of employment as a broker. See also Altas Realty Co. v. Galt, 153 Md. 586,
139 A. 285.
While numerous additional cases are cited by respondent holding, like Spier v. Lang,
supra, that joint participation in the management and control of the business is necessary to
constitute the partnership relation, our conclusions in this case are not based on the absence
of Roemisch's participation in the construction contract except insofar as that situation throws
light upon the intention of the parties as to the sharing of losses. We mention this in view of
appellant's argument, and cases cited in support thereof, to the effect that actual management
may be delegated to a single partner or co-adventurer without destroying their relationship as
co-adventurers or partners. See 47 C.J. 784, Partnership, sec. 226.
Roemisch contends that in any event the testimony of the parties clearly indicated their
relationship; that the most that can be said is that there was some conflict in such testimony,
and that as this was resolved by the trial court in his favor, this court is not at liberty to
disturb it. It is true that Spier v. Lang, 4 Cal.2d 711, 53 P.2d 138, holds that whether the
agreement to share profits is merely to provide a measure of compensation for services or for
the use of money, or whether it extends beyond and bestows ownership and interest in the
profits themselves so as to constitute the undertaking a partnership or a joint venture, presents
primarily questions of fact. The California court later, in Nelson v. Abraham, 29 Cal.2d 745,
177 P.2d 931, seemed to approve the rule that it was a mixed question of law and fact.1 In
our construction of the contract itself and our view of the mutual relations of the parties
as disclosed by the testimony, we conclude that the agreement to share profits was to
provide compensation to Roemisch for obtaining the contract.
approve the rule that it was a mixed question of law and fact.
1
In our construction of the
contract itself and our view of the mutual relations of the parties as disclosed by the
testimony, we conclude that the agreement to share profits was to provide compensation to
Roemisch for obtaining the contract. Whether it also compensated him for making the loan to
the Machine Works or whether, as maintained by respondent, the agreement to make that loan
was an independent covenant compensated by the payment of interest, does not affect our
conclusion. Nor need we place this case in the category of the so-called brokerage contracts,
although it is closely analogous thereto.
9. We conclude that the findings and judgment of the trial court holding in effect that the
agreement was not such a contract of partnership or joint adventure as to make Roemisch
liable for contribution for the losses of the Machinery Works in carrying out its construction
contract with Morrison-Knudsen Company were correct.
The judgment and the order denying defendant's motion for a new trial are hereby affirmed
with costs.
Horsey, C. J., and Priest, District Judge, concur.
Eather, J., being absent on account of illness, the Governor assigned Honorable D. W.
Priest, judge of the Third Judicial District, to act in his place.
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1
It is true that this court said in Botsford v. Van Riper, 33 Nev. 156, 197, 110 P. 705, that the whole case
resolved itself into a pure question of fact, but this referred to the question as to whether or not the agreement, an
oral one, had been entered into by the respective parties.
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67 Nev. 13, 13 (1950) West Indies, Inc. v. First National Bank
WEST INDIES, INC., a Corporation, Appellant, v. FIRST NATIONAL BANK OF
NEVADA, a Corporation, as Administrator of the Estate of LEONARD H. WOLFF,
Deceased, Respondent.
No. 3581
January 17, 1950. 214 P.2d 144.
Action by the West Indies, Inc., against the First National Bank of Nevada, a corporation,
as administrator of the estate of Leonard H. Wolff, deceased, to recover payment of money
won by plaintiff from deceased at gambling game of twenty one. The defendant moved for
judgment on the pleadings on the ground that checks executed and delivered by deceased
were executed for sole consideration of money won at gambling.
The Second Judicial District Court, Washoe County, Merwyn H. Brown, judge presiding,
entered an order granting the defendant's motion for a judgment on the pleadings and entered
judgment for the defendant and the plaintiff appealed.
The Supreme Court, Priest, district judge, held that a gambling house or the proprietor
thereof cannot maintain an action at law for the collection of money won at a duly licensed
gambling game.
Judgment affirmed.
1. Statutes.
The adjudging of a certain portion of a statute to be unconstitutional does not affect any other portion,
save and except so much thereof as is dependent on that portion which is declared null and void.
2. Gaming.
Section of Statute of Anne prohibiting collection of gambling debt and section providing that money lost
at gambling and paid over may be recovered by loser and section declaring that nothing in act shall prevent
gambling at places when sovereign is in residence and that gaming shall be for ready money only, are
independent and severable and adoption of first section as law of state was not in conflict with statutory or
constitutional provisions. N.C.L.1929, sec. 9021.
3. Common Law.
Only such portions of common law as are applicable to state's conditions have been adopted as law of the
state. N.C.L.1929, sec. 9021.
4. Gaming.
Void checks in statute authorizing licensed persons to carry on certain gambling games does not
impliedly authorize suit to collect same. N.C.L.1931-1941 Supp., secs. 3302-3302.16.
5. Gaming.
When a license tax is imposed on a particular form of gambling or gambling device, one who pays tax
cannot be prosecuted for gambling. N.C.L.1931-1941 Supp., secs. 3302-3302.16.
6. Gaming.
Omission of immunity clause, protecting licensed gambler from criminal prosecution, from statute
entitling license holder to carry on game or device for which license was issued is not intended to give
authority to licensee to maintain action for winnings of licensed game although immunity clause was
included under previous license statute. N.C.L.1931-1941 Supp., secs. 3302-3302.16.
7. Common Law.
Although common law may be impliedly repealed by a statute which is inconsistent therewith, or which
undertakes to revise and cover whole subject matter, repeal by implication is not favored, and result will be
reached only where there is a fair repugnance between common law and statute, and both cannot be carried
into effect. N.C.L.1929, sec.9021.
8. Statutes.
Statutes in derogation of common law are to be strictly construed.
9. Gaming.
Statute prohibiting other than licensed gambling and providing that license holder shall be entitled to
carry on, conduct and operate the specific slot machine, game or device for which license is issued is a
statute granting special privileges and must be strictly construed against the licensee. N.C.L.1931-1941
Supp., secs. 3302-3302.16.
10. Gaming.
Statute prohibiting other than licensed gambling and providing that before issuing state gambling license,
tax commission shall charge and collect from each applicant a license fee equal to two percent of all gross
revenue of applicant exceeding $3,000 quarterly does not grant right to licensee to maintain action for
winnings at a duly licensed game. N.C.L. 1931-1941 Supp., secs. 3302-3302.16; St.1945, p. 492; St.1947,
p. 734.
Royal A. Stewart, of Reno, for Appellant.
John S. Belford, of Reno, for Respondent.
OPINION
By the Court, Priest, District Judge:
This is an appeal from a final judgment of dismissal of an action commenced in the
Second judicial district court of Washoe County, after issue joined on the pleadings.
Appellant was plaintiff and respondent was defendant in the trial court.
The complaint alleges that on October 23, 1948, decedent Leonard H. Wolff, drew three
checks upon respondent in the respective amounts of $7,000; $29,000; and $50,000, and sets
out the checks in haec verba, and alleges that same were presented to respondent for payment
on October 24, 1948, and dishonored; that Leonard H. Wolff died testate on October 23,
1948; that on November 22, 1948, the respondent was appointed by the Second judicial
district court, administrator, cum testamento annexo, and on said date qualified, and is now
qualified and acting as such administrator of the estate of the said Leonard H. Wolff; that on
February 15, 1949, the appellant duly presented its claim to said administrator for the sums
set out in said checks totaling $86,000, which claim was rejected and refused of February 16,
1949, by an instrument in writing. Plaintiff prayed for judgment against the defendant as
administrator of the estate of Leonard H. Wolff, in the sum of $86,000 and for costs of suit,
payable out of said estate in due course of administration.
Respondent answered and set up as an affirmative defense that the said checks had been
given by decedent to plaintiff in payment of money theretofore won by plaintiff from
defendant at the gambling game of twenty one and for no other purpose and that the sole
consideration for the execution and delivery thereof was money theretofore won by plaintiff
from decedent at said gambling game.
Plaintiff's reply admitted the allegations of the affirmative defense heretofore set out.
Subsequent to the filing of its reply the plaintiff moved the court for an order permitting an
amendment to the reply in such a manner as to show that at all times material to the
action, appellant was regularly licensed by state authorities as by law provided and
required, to operate the said game referred to.
an order permitting an amendment to the reply in such a manner as to show that at all times
material to the action, appellant was regularly licensed by state authorities as by law provided
and required, to operate the said game referred to. Without objection this proposed
amendment was allowed.
Defendant then moved the court for the entry of judgment on the pleadings dismissing the
action, upon the ground that if said checks were so executed and delivered, they were
executed upon the sole consideration of money won at gambling. Upon stipulation of counsel
the motion to dismiss was heard by Hon. Merwyn H. Brown, judge of the Sixth judicial
district court. Upon presentation and argument the court entered an order granting the motion
for judgment on the pleadings and accordingly entered judgment for defendant. From the
judgment of dismissal plaintiff appeals.
At the argument herein counsel for the respective sides mentioned possible distinctions
between actions based upon the checks or based upon the alleged indebtedness or otherwise
founded, but upon being asked by the court whether or not it was the desire of counsel that
the opinion should pass squarely upon the point of collectibility by the gambling
establishment of money won at a duly licensed game, each replied that he would like the
opinion to determine squarely such question. There is therefore the one question presented
here to this court, viz: May a gambling house or the proprietor thereof maintain an action at
law for the collection of money won at a duly licensed game? We have thus limited the
inquiry and have omitted from this determination the question of collectibility of money by a
patron of winnings from a duly licensed game. Such question is not presented here.
Appellant contends: That the earlier decisions of this court are not controlling, being
decided under other statutes declaratory of a different public policy; that the English common
law, if adopted by Nevada, has been altered by statute; that since 1909 the public policy of
this state has been substantially altered with reference to gambling; that licensed
gambling is no longer a public nuisance or contrary to public policy, and that our gambling
enactments are repugnant to the English statutes.
altered by statute; that since 1909 the public policy of this state has been substantially altered
with reference to gambling; that licensed gambling is no longer a public nuisance or contrary
to public policy, and that our gambling enactments are repugnant to the English statutes.
Respondent contends: That a portion of the common law known as the Statute of Anne, 9
Anne, c. 14, 4 Bac.Abr. 456, relevant to gambling has been effectually adopted by this state;
that if not effectually adopted heretofore it is nevertheless an integral part of the law of this
state; that the statute is severable and the adoption of a pertinent part is not dependent upon
the adoption of the whole; that the law does distinguish in its regulatory power between
useful callings and those that do not contribute to the economic good; that the statute is
prohibitive rather than permissive; that an express clause in the act making such accounts
collectible would have been ineffectual in the absence of a change of title; and that the social
consequences of a change in the recognized law are great and that an intent to repeal by
implication should not be imputed to the legislature in the absence of a clear showing.
The first pronouncement of this court upon this question was in Scott v. Courtney, 1872, 7
Nev. 419, in which case the court construed the statute of 1869, p. 119. From this statute we
quote sections 1, 3, and 5.
Section 1. Each and every person who shall deal, play, carry on, open, or cause to be
opened, or who shall conduct, either as owner or employee, whether for hire or not, except
under a license as hereinafter provided, any game of faro, monte, roulette, lansquenette, rouge
et noir, rondo or any banking game played with cards, dice, or any other device, whether the
same be played for money, checks, credit, or any other representative of value, shall be guilty
of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than one
thousand, nor more than three thousand dollars, or by imprisonment in the County Jail not
less than three months nor more than one year, or by both such fine and imprisonment.
than three months nor more than one year, or by both such fine and imprisonment.
Sec. 3. Blank licenses shall be prepared by the County Auditor, which shall be signed,
issued and accounted for, as is by law provided in respect to other county licenses. Each
license delivered by the Sheriff, under this Act to any person, shall contain the name of the
licensee, a particular description of the room in which the licensee desires to carry on the
game licensed, and shall by its terms authorize the licensee to carry on one of the games
mentioned in the first section of this Act, specifying it by name, in the room therein
described, for the period of three months next succeeding the date of issuance of the license.
The said license shall protect the licensee and his employer or employers
1
against any
criminal prosecution for dealing or carrying on the game mentioned in the room described
during said three months, but not for dealing or carrying on any other game than that
specified, or the specified game in any other place than the room so described; provided, that
the licensee shall be entitled to deal, or play, or carry on two or more games in the same
room, by paying a license for each game so dealt or carried on.
Sec. 5. All moneys received for licenses under the provisions of this Act, shall be paid,
one half into the County Treasury and one half into the State Treasury, for general county and
State purposes respectively.
In Scott v. Courtney, supra, suit was brought by the proprietor of a duly licensed game to
collect money lost at such game. Without a declaration that Nevada had adopted any portion
of the common law of England known as the Statute of Anne, heretofore referred to, for it
appears that the question was never raised, the court nevertheless concluded, in reliance
principally upon decisions of the state courts under similar statutes, that the so-called
indebtedness was not collectible and that the action could not be maintained. The immunity
clause in the statute, i. e., the declaration in section 3, that "the said license shall protect the
licensee and his employer or employers against any criminal prosecution for dealing and
carrying on the game mentioned," did obviously have certain and considerable persuasive
force in leading the court to the conclusion that the license was by the statute limited and
losses at such games were not collectible.
____________________

1
Employee or employees.
that the said license shall protect the licensee and his employer or employers against any
criminal prosecution for dealing and carrying on the game mentioned, did obviously have
certain and considerable persuasive force in leading the court to the conclusion that the
license was by the statute limited and losses at such games were not collectible. This
immunity feature of the law will be later discussed. The court said:
In the United States, wagering and gaming contracts seem to have met with no
countenance from the courts, and consequently in nearly every state they are held illegal, as
being inconsistent with the interests of the community and at variance with the laws of
morality. 2 Smith's Leading Cases, 343.
Section 9021 N.C.L. of 1929, provides as follows: The common law of England, so far as
it is not repugnant to, or in conflict with the constitution and laws of the United States, or the
constitution and laws of this state, shall be the rule of decision in all the courts in this state.
This has been held to include the English statutes in force at the time of the American
Declaration of Independence. Ex parte Blanchard, 9 Nev. 101.
The next enactment of the Nevada legislature, affecting gambling was passed in 1879,
Statutes of Nevada 1879, p. 114, and is entitled: An Act to Restrict Gaming, and to repeal all
other Acts in relation thereto. From this statute we quote sections 1, 3, and 5.
Section 1. Each and every person who shall deal, play, carry on, open, or cause to be
opened, or who shall conduct, either as owner or employee, whether for hire or not, except
under a license, as hereinafter provided, any game of faro, monte, roulette, lansquenette,
rouge-et-noir, rondo, keno, fantan, twenty-one, red-white-and-blue, red-and-black or diana, *
* * or any banking percentage game, played with cards, dice or any other device, whether the
same be played for money, checks, credit, or any other valuable thing or representative of
value, shall be guilty of a misdemeanor, and on conviction thereof shall be punished by a fine
of not less than one thousand nor more than three thousand dollars, or by imprisonment in
the county jail not less than three months nor more than one year, or by both such fine
and imprisonment.
one thousand nor more than three thousand dollars, or by imprisonment in the county jail not
less than three months nor more than one year, or by both such fine and imprisonment.
Sec. 3. Blank licenses shall be prepared by the County Auditor, which shall be issued and
accounted for as is by law provided in respect to other county licenses. Each license delivered
by the Sheriff under this Act to any person shall contain the name of the licensee, a particular
description of the room in which the licensee desires to carry on the game license, and shall
by its terms authorize the licensee to carry on one of the games mentioned in the first section
of this Act, specifying it by name in the room therein described, for the period of one month
next succeeding the date of issuance of the license. The said license shall protect the licensee
and his employer or employers against any criminal prosecution for dealing or carrying on the
game mentioned in the room described during said one month, but not for dealing or carrying
on any other game than that specified, or the specified game in any other place than the room
so described; provided, that the licensee shall be entitled to deal or play, or carry on two or
more games in the same room, by paying a license for each game so dealt or carried on.
Sec. 5. All moneys received for licenses under the provisions of this Act shall be paid,
three-quarters into the county treasury, and one-quarter into the state treasury, for general
county and state purposes respectively.
In Evans v. Cook, 11 Nev. 69, decided in 1876, and hence decided under the statute of
1869, defendant was sued under his statutory undertaking, posted to prevent levy of
attachment upon one Hanley. Under the statutory undertaking, after collusive judgment
against Hanley, who was totally insolvent, Evans brought suit against Cook and one Polleys.
Polleys filed a demurrer. Cook having been deceived by Hanley, who had represented to
Cook that he would defend and set up the defense that the entire consideration was a
gambling debt, allowed default to be taken against him.
debt, allowed default to be taken against him. Before judgment Cook then moved the court
for an order to set aside the default and for leave to defend on the merits, the motion being
based upon the theory of excusable neglect. The affidavit in support of the motion to set aside
the default on the ground of excusable neglect was unopposed, was filed before judgment,
was comprehensive, and did effectually set up the fact of collusion between Evans and
Hanley. The trial court denied the motion to set aside the default and subsequently entered
judgment for plaintiff. Upon appeal defendant Cook contended among other things that the
court erred in refusing to set aside the default and permit a defense in the action on the merits.
The court in considering the alleged error, and taking as admitted by the failure of plaintiff to
present any evidence in opposition to the affidavit of defendant Cook, that there had been
fraud or collusion on the part of plaintiff, sets out that it was incumbent upon movent to show
two things, viz:
1. Excuse for the neglect, and
2. Whether or not the proposed answer disclosed a meritorious defense.
The court then having concluded that there was excusable neglect, proceeded to a
consideration of whether the proposed defense was meritorious, i. e., it proceeded to
determine whether the proprietor of an establishment could maintain an action for money
won by it at one of its duly licensed games. The court then held that there had been an
adoption of the applicable portions of the Statute of Anne.
We have given this case serious and detailed attention by reason of the vigorous
contention of appellant that the Statute of Anne so far as applicable to that situation, was not
effectually adopted, by reason of the supposed adoption being dicta and not essential to a
determination of the matter before the court. In support of this contention counsel cites, 14
Am.Jur. 291, sec. 79, note 4; 14 Am.Jur. 293, sec. 79, notes 7 and 8; Nichols v. St.
Louis and S. F. Railway Co., 227 Ala. 592, 151 So. 347, 90 A.L.R. 842. We have no quarrel
with the proposition that if the pronouncement of adoption were dicta, such pronouncement
could have no controlling force. However, how could the court determine whether or not the
defense was meritorious without considering squarely the question of collectibility of an
account representing winnings by the house at a duly licensed game? To determine this
precise question the court held that a suit could not be maintained to collect such an account
because of the adoption of the pertinent sections of the Statute of Anne. We do not
understand this contention of appellant to indicate a belief that the court could have found the
account to be uncollectible for other reasons, although such contention, quite logically, could
lead to that result.
For the reasons given we have no doubt that the declaration by this court in Evans v. Cook,
supra, to the effect that the applicable portions of the Statute of Anne, had been adopted, was
essential to a determination of the action, and the court so holds.
In Burke & Co. v. Buck, 1909, 31 Nev. 74, 99 P. 1078, 22 L.R.A., N.S., 627, 21 Ann.Cas.
625, decided under the statute of 1879, the uncontroverted evidence showed that Buck while
playing roulette at a Goldfield saloon, endorsed and delivered a negotiable certificate of
deposit of $500 back to the house. Buck then notified John S. Cook and Co., the issuing
corporation, that he had lost possession of same, without consideration and requested said
company to refuse payment of said certificate. Judgment was for plaintiff, the gambling house
proprietor, in the trial court and upon appeal reversed. The opinion refers approvingly to
Evans v. Cook, supra, and approves the adoption of all parts not inconsistent, of the English
Statute of Anne. Again there is a declaration as in Scott v. Courtney, supra, that the licensing
of gambling is merely permissive, and serves to give immunity from criminal prosecution and
nothing more.
In Menardi v. Wacker, 32 Nev. 169, 105 P. 287, 288, Ann.Cas.1912C, 710, it was held
that A check given for a gambling debt is void under the law of this state, and, there being
no valid obligation, there could be no lawful consideration for the security as a pledge.
Citing Burke & Co. v. Buck, 31 Nev. 74, 99 P. 1078, 22 L.R.A., N.S., 627, 21 Ann.Cas. 625.
Looking at the matter historically and by way of throwing light upon the question of
legislative intent, it is deemed fitting to show that in or about the year 1909, the pendulum of
public opinion had reached the extreme right, and from 1909 through 1915 a series of
anti-gambling statutes were enacted. Sufficient to conclude without going into great detail
that this was a period of extreme conservatism in the public policy of the state with reference
to gambling. This attitude was first manifested by a statute of 1909, p. 307, entitled; An Act
prohibiting gambling, providing for the destruction of gambling property and other matters
relating thereto. See also, Statutes of 1911, pp. 423, 424, 426, 429, 432, 435, 440, and 441;
Statutes of 1913, p. 235; and Statutes of 1915, pages 31 and 462.
Public opinion having changed again toward liberality the legislature enacted the so-called
open gambling law in 1931. The statute is entitled: An Act concerning slot machines,
gambling games, and gambling devices; providing for the operation thereof under license;
providing for certain license fees and the use of the money obtained therefrom; prohibiting
minors from playing and loitering about such games; designating the penalties for violations
of the provisions thereof; and other matters properly relating thereto. Statutes of 1931,
165-169, secs. 3302-3302.16, N.C.L. Supplement 1931-1941. From this statute we quote
from three pertinent sections, viz:
Section 1. From and after the passage and approval of this act, it shall be unlawful for any
person, firm, association or corporation, either as owner, lessee, or employee, whether for hire
or not, to deal, operate, carry on, conduct, maintain, or expose for play, in the State of
Nevada, any game of faro, monte, roulette, keno, fan-tan, twenty-one, black jack,
seven-and-a-half, big injun, klondyke, craps, stud poker, draw poker, or any banking or
percentage game played with cards, dice, or any mechanical device or machine, for
money, property, checks, credit, or any representative of value; or any gambling game in
which any person, firm, association or corporation keeping, conducting, managing, or
permitting the same to be carried on, receives, directly or indirectly, any compensation or
reward, or any percentage or share of the money or property played, for keeping, running,
carrying on, or permitting the said game to be carried on; or to play, maintain, or keep
any slot machine played for money, for checks or tokens redeemable in money or
property, without having first procured a license for the same as hereinafter provided;
and provided further, that no alien, or any person except a citizen of the United States,
shall be issued a license, or shall directly or indirectly own, operate or control any game or
device so licensed.
on, conduct, maintain, or expose for play, in the State of Nevada, any game of faro, monte,
roulette, keno, fan-tan, twenty-one, black jack, seven-and-a-half, big injun, klondyke, craps,
stud poker, draw poker, or any banking or percentage game played with cards, dice, or any
mechanical device or machine, for money, property, checks, credit, or any representative of
value; or any gambling game in which any person, firm, association or corporation keeping,
conducting, managing, or permitting the same to be carried on, receives, directly or indirectly,
any compensation or reward, or any percentage or share of the money or property played, for
keeping, running, carrying on, or permitting the said game to be carried on; or to play,
maintain, or keep any slot machine played for money, for checks or tokens redeemable in
money or property, without having first procured a license for the same as hereinafter
provided; and provided further, that no alien, or any person except a citizen of the United
States, shall be issued a license, or shall directly or indirectly own, operate or control any
game or device so licensed.
Sec. 2. ThirdSaid license shall entitle the holder or holders, or his or their employee or
employees, to carry on, conduct, and operate the specific slot machine, game or device for
which said license is issued in the particular room and premises described therein, but not for
any other slot machine, game or device than that specified therein, or the specified slot
machine, game or device in any other place than the room and premises so described, for a
period of three (3) months next succeeding the date of issuance of said license; provided, that
the licensee shall be entitled to carry on, conduct and operate two or more slot machines,
games or devices mentioned in section one of this act, in the same room, by paying the
license herein provided for, for each slot machine, game or device and otherwise complying
with the terms of this section.
Sec. 5. All moneys received for licenses under the provisions of this act shall be paid,
twenty-five (25%) per cent to the state treasurer for general state purposes, and
seventy-five {75%) per cent to the county treasurer of the county wherein the same is
collected for general county purposes; provided, where the license is collected within the
boundaries of any incorporated city or town the county shall retain twenty-five {25%) per
cent of said moneys, and the incorporated city or town shall receive fifty {50%) per cent
of said moneys so collected, and the same shall be paid into the treasury of said
incorporated city or town for general purposes; provided further, where the license is
collected within the boundaries of any unincorporated city or town that is under the
control of the board of county commissioners under and by virtue of an act entitled "An
Act providing for the government of towns and cities of this state,' approved February 26,
1SS1, the county shall retain twenty-five {25%) per cent of said moneys, and fifty {50%)
per cent of said moneys so collected shall be placed in the town government fund for
general use and benefits of such unincorporated city or town."
per cent to the state treasurer for general state purposes, and seventy-five (75%) per cent to
the county treasurer of the county wherein the same is collected for general county purposes;
provided, where the license is collected within the boundaries of any incorporated city or
town the county shall retain twenty-five (25%) per cent of said moneys, and the incorporated
city or town shall receive fifty (50%) per cent of said moneys so collected, and the same shall
be paid into the treasury of said incorporated city or town for general purposes; provided
further, where the license is collected within the boundaries of any unincorporated city or
town that is under the control of the board of county commissioners under and by virtue of an
act entitled An Act providing for the government of towns and cities of this state,' approved
February 26, 1881, the county shall retain twenty-five (25%) per cent of said moneys, and
fifty (50%) per cent of said moneys so collected shall be placed in the town government fund
for general use and benefits of such unincorporated city or town.
Section 5, above quoted, was amended in the legislative session of 1945, p. 492, but in a
manner not material to the purpose for which the section is cited. In this statute of 1945, p.
492, a new section was added entitled, section 10e, which section reads as follows:
Section 10e. The Nevada tax commission, before issuing a state gambling license shall
charge and collect from each applicant a license fee equal to one (1%) per cent of all the gross
revenue of such applicant exceeding three thousand dollars ($3,000) quarterly.
No state gambling license shall be issued to any applicant until the license fee, if any, has
been paid in full.
The legislature of 1947 changed this section in certain details but no change of the statute
is pertinent to this opinion except the fact that the percentage was increased from one percent
to two percent.
See Statutes of Nevada of 1947, p. 734.
Appellant as a result of tireless and exhaustive research shows to the court that a great
deal of the gambling law of England in force at the time of the American Declaration of
Independence, is peculiarly applicable to that country because of the structure of their
government.
research shows to the court that a great deal of the gambling law of England in force at the
time of the American Declaration of Independence, is peculiarly applicable to that country
because of the structure of their government. From this he argues that under our form of
government and particularly in view of the liberality of our statutory enactments pertaining to
this subject, from the year 1931, no part of the said Statute of Anne can now have any
controlling force. In support of this position appellant shows:
That by Statute 33, Henry VIII c. 9, enacted A.D. 1541, in England, it was made unlawful
to maintain a house or place of dicing, table or carding, or other gambling;
That by section 12 of said act all other gambling statutes were repealed;
That by Statute 10 and 11, Will. 3 C 17 (c), enacted 1710, lotteries were declared common
nuisances;
That under Statute 8, George 1, c. 22 S.S. 36, 37, enacted 1721, further penalties for
conducting lotteries were provided and certain other enforcement provisions were provided;
That under Statute 9, George 1, c. 19, enacted 1722, certain prohibitions against foreign
lotteries were provided;
That the said Statute of Anne was enacted for the purpose of implementing and enforcing
the previous antigambling statutes;
That said statute contained a limitation or exception to its operation by express terms by
provision that it should have no force or effect within His Majesties Royal Palaces, etc. M,
and otherwise excepting the sovereigns;
That by Statute 4, George IV, c. 60, secs. 1-18, a treasury lottery was authorized;
That by section 2 of the Statute of Anne, any person who had lost at gaming, could within
three months maintain an action of debt, and recover said sum with costs, and in the event the
loser failed to commence such an action same might be maintained by any one for treble
the amount lost plus costs;
action same might be maintained by any one for treble the amount lost plus costs;
That section 5 of said act provided for corporal punishment to a person winning by fraud;
That the Statute of Anne does not, as do the Nevada statutes, license gambling;
That said statute expressly permits unlicensed gambling in the royal palaces under certain
conditions;
That said Statute of Anne permits unlicensed gambling by the royal family for ready
money only, while the Nevada statutes permit gambling not only for money but for
property, checks, credit, or any representative of value.
We understand that certain of the statutes of England, not here under investigation, but
which cast light upon the gambling status and public policy of England at that particular time,
are discussed only for these purposes.
Certain portions of the Statute of Anne that are at hopeless variance with the structure of
government in America, were equally at hopeless variance at the time of the admission of
Nevada to statehood. Admittedly, without attempting to define just which portions, certain
portions of the Statute of Anne are not in harmony with the structure of government here,
either national or state. But from this fact we cannot conclude that no part of the statute has
been adopted unless the statute itself is totally inseparable, or nonseverable. Apparently this
question of severability has not been raised or urged in any of the gambling cases heretofore
decided by this court. Such contention therefore merits careful consideration. 34 L.R.A. 341,
footnote n.
The determination of Evans v. Cook, supra, and Burke v. Buck, supra, elicited the
declaration that the first section of the Statute of Anne had been adopted. The wording of the
first section alone was required to sustain the conclusion reached. The first section of said
statute reads as follows:
That all notes, bills, bonds, judgments, mortgages, or other securities or conveyances
whatsoever given, granted, drawn, or entered into, or executed by any person or persons
whatsoever, where the whole, or any part of the consideration of such conveyances or
securities shall be for any money, or other valuable thing whatsoever, won by gaming or
playing at cards, dice, tables, tennis, bowls, or other game or games whatsoever, or, by
betting on the sides or hands of such as do game at any of the games aforesaid, or for the
reimbursing or repaying any money knowingly lent or advanced at the time and place of
such play, to any person or persons so gaming or betting as aforesaid, or that shall,
during such play, so play or bet, shall be utterly void, frustrate, and of none effect, to all
intents and purposes whatsoever."
granted, drawn, or entered into, or executed by any person or persons whatsoever, where the
whole, or any part of the consideration of such conveyances or securities shall be for any
money, or other valuable thing whatsoever, won by gaming or playing at cards, dice, tables,
tennis, bowls, or other game or games whatsoever, or, by betting on the sides or hands of such
as do game at any of the games aforesaid, or for the reimbursing or repaying any money
knowingly lent or advanced at the time and place of such play, to any person or persons so
gaming or betting as aforesaid, or that shall, during such play, so play or bet, shall be utterly
void, frustrate, and of none effect, to all intents and purposes whatsoever.
The first section heretofore quoted, provides that gambling debts may not be collected at
law; the second section that money lost at gambling and paid over may be recovered by the
loser and the ninth section is a proviso declaring that nothing in the act shall prevent
gambling at the palaces of St. James, or Whitehall when the sovereign is in residence and that
such gaming shall be for ready money only.
1. The general law on the subject of statutes void or ineffectual in part, is clear:
* * * the adjudging of a certain portion of a statute to be unconstitutional does not affect
any other portion, save and except so much thereof as is dependent upon that portion which is
declared null and void. Ex parte Arascada, 44 Nev. 30, 189 P. 619, 621; Ex parte Goddard,
44 Nev. 128, 190 P. 916.
2. The first and second sections of the statute are entirely independent and severable. The
first provides a shield for one who has lost at gambling but has not paid his losses, while the
second provides a sword by which he may recover back what he has paid over. The first
provides a defense and the second a remedy. It is difficult or impossible to conceive of a
single transaction in which both sections could be invoked. The first section cannot be
invoked if the gambling debt has been paid.
paid. The second section cannot be invoked if the gambling debt has not been paid. The first
section is not dependent upon the ninth section. As heretofore stated the ninth section is a
proviso to the effect that nothing in the act shall prevent gambling at certain palaces for ready
money. The first section does not prohibit gambling at these palaces or elsewhere nor does it
prohibit or require play for ready money only. On the other hand, the ninth section does not
purport to legalize gambling debts but by its express terms requires that gambling at
Whitehall and St. James palaces shall be for cash only. What has heretofore been stated as to
the effect and severability of the first and second sections applies with equal force to the first
and ninth. There could be no single transaction under which both sections could be invoked
and either section can be dropped from the act without affecting the rights or defenses
conferred by the other.
3. Only such portions of the common law as are applicable to our conditions, have been
adopted as the law of this state. Reno Smelting, Milling & Reduction Works v. Stevenson, 20
Nev. 269, 21 P. 317, 4 L.R.A. 60, 19 Am.St.Rep. 364; Haggin v. International Trust Co., 69
Colo. 135, 169 P. 138, L.R.A.1918B, 710. In Esden v. May, 36 Nev. 611, 135 P. 1185, the
court held that only those portions of the Statute of Anne are in force which are applicable to
our conditions and not in conflict with our statutory law, and that particularly the Nevada
statutes governing matters of practice control when in conflict with portions of the Statute of
Anne. This court having held that not all of the sections of the Statute of Anne have been
adopted, Esden v. May, supra, and having held on three occasions, Evans v. Cook, supra,
Burke v. Buck, supra, and Mendardi v. Wacker, supra, that the first section of said statute is
the law of this state, under the rule of stare decisis, the contention of appellant that the statute
is nonseverable can hardly meet with serious consideration. 21 C.J.S., Courts, sec. 187, p.
302. We are satisfied that there has been an effectual declaration of adoption of the first
section of the Statute of Anne.
effectual declaration of adoption of the first section of the Statute of Anne. We are not
required to decide if more was adopted and without limiting such possibility we pass the
matter for future determination in a proper case.
We are now confronted with the question of whether any of the gambling statutes enacted
from the date 1931, have in legal effect repealed by implication the first section of the Statute
of Anne. Such repeal would necessarily be by implication for there is nothing in any of the
statutes repealing it directly, i. e., there is no provision in any of the statutes to the effect that
money won by the establishment at a licensed game may be collected by suit at law.
We have quoted the statutes rather fully and particularly to show that the present law was
modeled after the earlier acts of 1869 and 1879, the principal changes being the imposition of
a tax upon gross receipts, a grant to the state tax commission of certain regulatory powers,
and the legal effect of operating with license. As heretofore mentioned a license under the act
of 1869 shall protect the licensee and his employer or employers (employee or employees)
against any criminal prosecution for dealing or carrying on the game mentioned * * *. The
statute of 1879, p. 114 is of the same wording in this respect. Under the statute of 1931, P.
165, Said license shall entitle the holder or holders, or his or their employee or employees, to
carry on, conduct, and operate the specific slot machine, game or device for which said
license is issued * * *.
Appellant's contention for a repeal by implication is based particularly upon three points,
viz;
1. That the use of the word checks in the statute of 1931 impliedly authorizes suit to
collect same.
2. That the statute of 1931 in omitting the immunity clause contained in the earlier statute
did so with the intent of giving authority to the licensee to maintain an action for winnings of
licensed games.
3. That if the repeal of the first section of the Statute of Anne was not effected by the act
of 1931 it nevertheless was effected by the act of 1945, p.
of Anne was not effected by the act of 1931 it nevertheless was effected by the act of 1945, p.
492, under the terms and provisions of which it is urged the state became a partner.
4. In all of the statutes under scrutiny, 1869, 1879, 1931, in which gambling under license
is authorized, the word checks appears. It is not new to the statute of 1931, which statute is
clearly modeled from the other statutes. The first section deals with the unlawful and is
prohibitive rather than permissive. In effect it declares that it is unlawful for all persons,
natural or artificial, to carry on certain games of chance, enumerating them, for property of all
kinds unless properly licensed. It cannot be legally inferred from this wording of the statute
that the statute is a grant of authority to take checks in properly licensed games, and that there
is a corollary power granted to maintain an action at law for the collection of such checks.
5. What is the legal significance of the omission of the immunity clause, that is, the clause
in regard to immunity from criminal prosecution? The inclusion of the immunity clause in the
earlier statutes was entirely unnecessary to protect a licensed gambling operator from criminal
prosecution, for when a license tax is imposed upon a particular form of gambling or
gambling device, one who pays the tax cannot be prosecuted for gambling, i. e., that which is
contemplated by the license. State v. Moseley, 14 Ala. 390; State v. Allaire, 14 Ala. 435;
Rodgers v. State, 26 Ala. 76; Hawkins v. State, 33 Ala. 433; Overby v. State, 18 Fla. 178;
Berry v. People, 36 Ill. 423; State v. Duncan, 84 Tenn. 79; Houghton v. State, 41 Tex. 136;
Miller & Co. v. Stropshire, 124 Ga. 829, 53 S.E. 335, 4 Ann.Cas. 574, 575, and note; 27 C.J.
p. 1014, sec. 179, notes 59-50, 38 C.J.S., Gaming, sec. 82; 24 Am.Jur. p. 405, sec. 10, note
19.
6. It has been urged that the purpose of including such clause in the statutes of 1869 and
1879, was, as held in Scott v. Courtney, supra, to limit and restrict the effect of the license to
simple protection of the persons so engaged in gambling against criminal punishment, and
that to omit such immunity clause from the statute of 1931, is in legal effect to remove
the disability enunciated in Scott v. Courtney, supra.
so engaged in gambling against criminal punishment, and that to omit such immunity clause
from the statute of 1931, is in legal effect to remove the disability enunciated in Scott v.
Courtney, supra. This could have been the intent but this possibility is surely discounted or
discredited when one reflects that the effect of the license is still limited under the statute.
Under the earlier statutes the license protected the licensee from criminal prosecution. Under
the present statute the license shall entitle the holder or holders, or his or their employee or
employees, to carry on, conduct and operate the specific slot machine, game or device for
which said license is issued * * *. It is the opinion of the court that the substitution of
another limiting clause for the former immunity clause cannot have the effect urged by
counsel. Who can say but that the omission of the immunity clause was for the purpose of
removing surplusage.
7. But to resolve this question of repeal by implication, we are not required to indulge in
speculation, we can reach it very directly. We quote from 15 C.J.S., Commerce, sec. 12, p.
620, as follows:
Although the common law may be impliedly repealed by a statute which is inconsistent
therewith, or which undertakes to revise and cover the whole subject matter, repeal by
implication is not favored, and this result will be reached only where there is a fair
repugnance between the common law and the statute, and both cannot be carried into effect.
The statute of 1931 did not attempt to revise and cover the whole subject matter, as
evidenced by the fact that section 10201 N.C.L. of 1929, which was a law with reference to
gambling effective January 1, 1912, was amended in 1941 p. 64; Sec. 10201, 1931-1941
N.C.L. Supplement.
In Cunningham v. Washoe County, 66 Nev. 60, 203 P.2d 611, 613, in which appellant
contended for repeal of the common law by implication, Mr. Justice Badt stated the law
applicable to this action at bar in these words:
stated the law applicable to this action at bar in these words:
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
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,' 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.
We now approach the question of liberal and strict construction.
The law makes a distinction between liquor and gambling industries and useful trades. In
State ex rel. Grimes v. Board of Commissioners, 53 Nev. 364, 1 P.2d 570, 572, the court said:
We think the distinction drawn between a business of the latter character and useful
trades, occupations, or businesses is substantial and necessary for the proper exercise of the
police power of the state. Gaming as a calling or business is in the same class as the selling of
intoxicating liquors in respect to deleterious tendency. The state may regulate or suppress it
without interfering with any of those inherent rights of citizenship which it is the object of
government to protect and secure.
8. Statutes in derogation of the common law are to be strictly construed. Sutherland
Statutory Construction, third edition, vol. 3, art. 6202. * * * statutes granting special
privileges to a group of persons who are in no particular need may be strictly construed
against such beneficiaries."
are in no particular need may be strictly construed against such beneficiaries. Sutherland
Statutory Construction, third edition, vol. 3, art. 5503, note 9. One of the best illustrations of
such legislation is laws granting special franchises and privileges. Charles River Bridge v.
Warren Bridge, 11 Pet. 420, 36 U.S. 420, 9 L.Ed. 773.
9. Considering the limitations placed by law upon the license, the special class of industry
licensed and its deleterious effect, the fact that it is in contravention of the common law, the
fact that it is a statute granting special privileges, we entertain no doubt but that the statute is
one meriting strict construction against the licensee, and must therefore conclude from the
application of the rule of strict construction, that the omission of the immunity clause in the
statute of 1931, does not in legal effect grant the right to maintain an action for winnings at a
duly licensed game. There is no such clear and unquestionable implication from legislative
acts. In Ex parte Pierotti, 43 Nev. 243, 184 P. 209, 211, Mr. Justice Sanders speaking in
opposition to judicial construction to nullify the obvious meaning of a statute said: It is not
the province of courts to confound by construction what the legislature has made clear.
Finally does the fact that the state now accepts two percent of the gross income from duly
licensed games, confer the right upon the licensee of such games to maintain an action for his
winnings at such games?
10. It has been urged that such license fee in which the state has this direct interest, confers
such right by operation of law. Under the statutes of 1869 and 1879 the state and county both
had a financial interest in the proceeds of the license. Under the present law the state receives
far more money, of that there can be no doubt, but the financial interest of the state and
county has been present under all of the gambling statutes. It might be said that under the
earlier laws the interest of the state was in licensing and nothing more, and that the state was
not concerned with the success of the licensed games.
the state was not concerned with the success of the licensed games. In a restricted and limited
sense that is true, and yet on the other hand an unsuccessful game could not or would not
under the earlier statutes, continue from quarter to quarter to be licensed. It is therefore true
that under all license laws the state has been financially interested in the success of the games,
machines or devices so licensed. The distinction between the application of the old laws and
the present law is therefore a distinction of quantity and not quality. We must therefore
conclude that the enactment of the laws of 1945, p. 492, and of 1947, p. 734, by which a
license fee of one (1%) percent and later two (2%) percent of gross income, was and is
charged, does not alter the conclusions formerly reached.
We have carefully studied the other points raised herein by appellant but are convinced
that the intent of the legislature is clear, and do not deem other points of contention of
sufficient force to merit extended treatment in this rather long opinion.
In view of the conclusions reached it is not necessary for the court to pass upon other
contentions raised by respondent, including that contention that the statutes could not have
the effect contended for by appellant by reason of the necessity of a properly inclusive title.
Counsel for both sides are to be highly complimented for their tireless search and excellent
briefs.
For the reasons heretofore given it is ordered that the judgment of the district court be, and
the same is hereby affirmed, with costs.
Horsey, C. J., and Badt, J., concur.
Eather, J., being absent on account of illness, the Governor commissioned Honorable D.
W. Priest, judge of the Third Judicial District, to act in his place.
____________
67 Nev. 36, 36 (1950) State v. Boudreau
THE STATE OF NEVADA, Respondent, v. RICHARD LINDLEY BOUDREAU, Alias
DICK BAYS, Appellant.
No. 3571
January 25, 1950. 214 P.2d 135.
Richard Lindley Boudreau, alias Dick Bays, was convicted in the Fourth Judicial District
Court, Elko County, Taylor H. Wines, judge, of first-degree murder, and he appealed.
The Supreme Court, Hatton, district judge, held that defendant's purported written
confession was properly admitted in evidence and that conviction was supported by evidence.
Judgment affirmed.
1. Criminal Law.
Evidence justified submitting to jury circumstances surrounding making of confession by defendant,
together with the confession itself, though confession was made while defendant was under arrest prior to
his presentation before a magistrate. N.C.L.1929, sec. 10744.
2. Criminal Law.
The rule that voluntary character of a confession is chief test of its admissibility should be adhered to
where the confession was made while defendant was under arrest and prior to his presentation before a
magistrate, and though detention shall have become unlawful. N.C.L.1929, sec. 10744.
3. Criminal Law.
The circumstances of questioning of defendant at the jail in the middle of the night and in presence of a
brother of deceased raised conjecture of possible coercion in obtaining his written confession, but proof of
possibility of coercion in the first instance was overcome by showing of lack of coercion when confession
was reduced to writing. N.C.L.1929, sec. 10744.
4. Criminal Law.
Generally, a confession is admissible, although not in exact words of the accused, where it was read by
accused and signed or otherwise admitted by him to be correct.
5. Criminal Law.
Entire testimony of constable as to defendant's giving of confession was not required to be rejected even
if constable's testimony as to defendant having dictated language of first paragraph of written confession
were shown to be false, since it was for jury to determine as to truth or falsity of any
portion of testimony of witness and as to effect of falsity on other portions of his
testimony.
it was for jury to determine as to truth or falsity of any portion of testimony of witness and as to effect of
falsity on other portions of his testimony.
6. Homicide.
Motive is not an essential element of murder and need not be proved to sustain a conviction if other
evidence is sufficient.
7. 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.
8. Homicide.
Evidence sustained conviction of murder in the first degree. N.C.L.1929., sec. 10067.
9. Homicide.
Where evidence supported conviction of first-degree murder, reviewing court could not modify judgment
by reducing degree of the crime.
Orville R. Wilson and F. Grant Sawyer, both of Elko, for Appellant.
Alan Bible, Attorney General, George P. Annand and Robert McDonald, Deputy Attorneys
General, and A. L. Puccinelli, District Attorney of Elko County, Elko, for Respondent.
OPINION
By the Court, Hatton, District Judge:
Richard Lindley Boudreau, alias Dick Bays, the defendant in the trial court, is the
appellant here. He will be referred to herein as the defendant. The defendant was charged
with the murder of Richard Stewart by an information filed by the district attorney of Elko
County, Nevada, on October 28, 1948, to which he entered his plea of not guilty. Upon the
trial he was found guilty of murder of 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.
In the defendant's opening brief, two assignments of error are stated, as follows: "1.
1. That the verdict was contrary to the evidence in that the same shows that defendant
was not guilty of the degree of the crime of which he was convicted but was guilty of a lesser
degree thereof.
2. The purported written confession of defendant was not voluntary in that the same was
taken from said defendant when his physical condition did not allow for his independent and
voluntary action in giving the confession; also said confession was taken prior to the time
defendant was conducted to a magistrate.
The record discloses that Richard Lindley Boudreau, the defendant, a youth of eighteen
years, was employed on a ranch in Elko County, Nevada, in the summer of 1948. On or about
September 1, 1948, he transferred his employment from the ranch to the Southern Pacific
Railroad Company, at Alazon, Nevada, which is situated approximately five and one-half
miles west of the town of Wells, in Elko County. He was known as Dick Bays until after the
homicide. On the afternoon of October 9, 1948, the defendant, in company with Richard
Stewart, the deceased, and two other employees of the railroad company, left Alazon in an
Oldsmobile sedan, the property of Stewart, with the purpose of going to Twin Falls, Idaho, to
attend a dance at that place. They stopped first at Contact, Nevada, about fifty miles north of
Wells, where they were joined by Alvin Loos and Edna Robertson, and then proceeded on
northward and, at San Jacinto, they were joined by Wilma Robertson. At Rogerson, Idaho,
they were joined by Delilah Helsley. They arrived at Twin Falls at about nine to nine-thirty
that night. At midnight, after attending the dance, the party, excepting the two unnamed
employees of the railroad company, entered Stewart's automobile and returned to Contact,
arriving there at about two in the morning of October 10, when Alvin Loos and the three girls
left the car and remained at Contact, while the defendant and Stewart, in the latter's car,
proceeded on the highway towards Wells. At about four o'clock that morning, the defendant
entered the office of the telegraph operator at Alazon and stated that he was out of
gasoline.
telegraph operator at Alazon and stated that he was out of gasoline. The operator was unable
to supply him, and it seems that he obtained some gasoline from the railroad company's
supply. That afternoon, between four and four-thirty, the defendant entered the Thousand
Springs Trading Post, which is approximately midway between Wells and Contact, and
purchased a bus ticket to Contact. He was recognized as Dick Bays by the man who sold him
the bus ticket, defendant having visited the Trading Post during his ranching employment. He
left on the bus at about five to five-fifteen in the afternoon. At about six to six-thirty, the man
who sold the bus ticket to defendant, in company with others, left the Trading Post to go deer
hunting. They proceeded north on the highway until they came to a road known as the Loomis
Pasture road. About three and one-half miles out on this road, the hunting party came upon
the Oldsmobile sedan, belonging to the deceased. It had a flat tire. They noticed a bullet hole
in the side window on the driver's side and, scattered about the car, were tools, articles of
clothing, blood-stained seat covers, a blood-stained leather jacket and a billfold containing
papers bearing the name Dick Bays. They returned to the Trading Post and summoned
Constable Homer Murphy from Wells. That night, at about nine-thirty, Alvin Loos, above
referred to, saw the defendant at the Mineral Hot Springs, near Contact, and he inquired of
defendant as to the whereabouts of Stewart. Defendant answered that Stewart had gotten mad
at defendant; that he, defendant, left Stewart's car at Wells, and that Stewart said he was
going to Wyoming. About an hour later, Loos again talked with defendant, and the latter
stated that he had quit his job at Alazon and was going back east. After Constable Murphy
had been informed relative to the abandoned car, he summoned Undersheriff J. C. Harris
from Elko, and they went together to the car, and the car was recognized by Murphy as the car
belonging to Stewart. A further examination of the car disclosed a box of groceries and a .32
calibre automatic pistol, which was later identified as having been purchased by
defendant in Twin Falls and also identified as the weapon which caused the wounds from
which Stewart died.
automatic pistol, which was later identified as having been purchased by defendant in Twin
Falls and also identified as the weapon which caused the wounds from which Stewart died.
The officers proceeded to Mineral Hot Springs, where they approached the defendant and
engaged him in conversation in the course of which the defendant stated that he had traveled
from Wells to Contact by bus and that he did not know the whereabouts of Stewart.
Defendant was searched and was found to be in possession of the car keys, a wallet
containing a registration card, an identification card, driver's license and certificate of title of
the car referred to, all made out to Richard Stewart, and a birth certificate made out to
Richard Lindley Boudreau. Defendant was then taken into custody and was taken to Wells
where he was placed in the jail there between one and one-thirty in the morning of October
11, 1948. Between one-thirty and two that morning, Officers Murphy and Harris,
accompanied by William Stewart, a brother of the deceased, went to the jail and questioned
the defendant. Both of the officers testified that, during the questioning, the defendant stated
that he had shot Richard Stewart five times and that he would show the officers where
Stewart was if they would take him there. The officers, accompanied by defendant and under
his direction, then proceeded on the highway to a point about three miles south of Contact
and there the body of Stewart was found about one hundred feet off the highway.
Constable Murphy testified that the defendant was returned to the jail at Wells at about
four or five o'clock in the morning; that he, Murphy, called at the jail a number of times
during the day, that defendant was lying on the bed, that he did not question defendant further
about the homicide but just asked him if he wanted anything. The evidence tends to show that
during the day the defendant was provided with proper food and that he was not disturbed. At
about eight o'clock that evening, the defendant, in the presence of the district attorney,
Constable Murphy, Russell R.
the district attorney, Constable Murphy, Russell R. Plank, inspector of Nevada State Police,
and a young lady stenographer, made and signed the following confession:
I, Richard Lindley Boudreau, also known as Dick Bays, hereby make the following
statement, freely and voluntarily, without duress, undue influence, promise of reward and
after being fully advised of my rights to an attorney and with full knowledge that whatever I
say may be used against me.
I was born on the 6th day of October, 1930 in Lynn, Massachusetts. I came to Wells,
Nevada, on or about September of 1948 where I have been working at Alazon for the
Southern Pacific Railroad Company.
On Saturday, October 9, 1948 at about 5 p. m. I left Alazon with Jimmy and Johnny who
bunk next to me and Richard Stewart. We were driving in Stewart's car which is a 1936
Oldsmobile, tudor sedan. We were headed for Wells, Nevada, where we were going to let out
Johnny and Jimmy and then Dick and myself were going to Contact, Nevada to pick up Alvin
Loos and his girl friend, Edna Robertson and we were going to Twin Falls, Idaho to a dance.
On the way to Wells Johnny and Jimmy asked Stewart if he was coming back Saturday night
and he said Yes.' They then both decided to come along. When we got to Wells we all went
into a cafe which is on the highway in Wells and had a sandwich. Johnny and Jimmy bought
some whiskey. When we had finished eating we all took off for Contact. This was about 6
p.m. Saturday night. Stewart was driving his car.
We arrived in Contact about an hour or an hour and fifteen minutes after we left Wells.
We went to Alvin's girl's house to pick up Al and his girl, Edna. Al said we were to drive to
San Jacinto to pick up one girl and then to Rogerson, Idaho to pick up another girl. We left
Contact, drove to San Jacinto and picked up Wilma, who is Edna's sister. We then drove to
Rogerson, Idaho and picked up a girl by the name of Delilia.
I don't know her last name and then we all started off toward Twin Falls, Idaho. We got there
about 9 o'clock Saturday night. We let Johnny and Jimmy out in front of the St. Regis Club
and made a deal to pick them up at midnight. We then drove to the Odd Fellows Hall where
there was a dance. Stewart parked the car about a half a block from the hall. We got out of the
car and started walking towards the hall, right next door to the Odd Fellows Hall is the
American Legion Hall. All of the party, excepting me, stopped to look at a new Tucker
automobile. I went on along to the dance and told them I would meet them later. After awhile
the rest of them met me at the dance where we stayed until about 10 minutes to midnight. The
dance usually let out at midnight. Al and Stewart left and went looking for Jimmy and
Johnny. The girls and myself went to where the car was parked or where it had been parked.
When we didn't find the car we went back to the front of the Odd Fellows Hall and waited. In
a few minutes Stewart and Al drove up. The girls and myself got in and we all started back to
Contact, Nevada. While we were going out of Twin Falls I was making quite a bit of noise.
Al told me to shut up and it made me mad. We drove on until we got to Contact, Nevada
where we drove up to the front of Edna's house where Al, Edna, Delilia and Wilma got out.
On leaving Alazon I had taken with me a coat and a .32 automatic, which was fully
loaded and was in the pocket of this coat. I took it with me because Al and I had made plans
that I would stay in Contact and on Sunday morning we would go hunting.
When we got to Contact and everyone got out but Stewart and myself I put my coat on
and got in the front seat with Stewart. We took off from Contact at about 2 or 2:30 a. m.
Sunday morning on October 10, 1948. When we got out of Contact about four miles I asked
Stewart to stop the car because I had to urinate. He stopped the car and I got out and urinated.
When I had finished I half got into the car, took the .32 out of my pocket and shot him
through the right side of his face.
my pocket and shot him through the right side of his face. He sat there for a minute then got
out and walked toward the front of the car in front of the car and over to the right front fender
then walked back to the left side of the car and got in. When he got into the car I shot him the
second time, this time through the chest. He sat there for a minute then fell toward the right
side of the car. I got out and went around the car, got into the driver's seat and let the car coast
a little ways. I then stopped the car. When I stopped the car he sort of sat up and fumbled with
the door and got out. I got out and went around to his side there and he had gotten out of the
car and walked about five feet off the right hand side of the highway, where I took hold of
him and he sort of walked and moved when I pushed him for about ten feet more. Then he
fell. I dragged him down to about 15 more feet I guess and shot him again on the left side of
the head. There was a pile of rocks and I tumbled a few of them down by his legs and left
him. I went back to the car and got in and drove down to Alazon. When I got to Alazon I
went to where I lived and got some of my stuff put it in the car and started back out. When I
had gotten out about a half a mile I ran out of gas. I walked back to Alazon looked around for
gas and went into the pump house, got some gas, walked out to the car, put the gas in the car
and drove to Wells. I stopped at a service station on the highway in Wells where I had the car
filled with gas, then started driving back forwards Contact. When I had gotten as far as
Wilkins I turned off on the dirt road which goes into Loomis pasture, drove a few miles and
had a flat tire. I tried to fix the tire but I couldn't so I stayed there until about 3:30 in the
afternoon. I fixed myself a lunch, looked into the glove compartment, took the seat covers off
the seat, which were covered with blood and threw them out in the brush near the car. At
about 3:30 I walked to Wilkins and bought myself a bus ticket for the Mineral Hot Springs. I
stayed there until bus time which was about 5:30. I left there on the bus went to Mineral Hot
Springs.
Mineral Hot Springs. I got there about 6:30 Sunday night, got myself a sandwich, took a bath
and stayed there for the dance. I remained there until I was put under arrest by the officers
from Wells and Elko. After I shot him the third time I took everything off of him including
his wallet, money, title to the car, car keys and a watch.
When the officers picked me up they found my wallet but it had Stewart's stuff in it. The
rest of Stewart's stuff I scattered around the car.
The foregoing statement, which consists of 2 and three quarter pages is the truth, and the
whole truth. It was made by me, the undersigned, Richard Lindley Boudreau, also known as
Dick Bays, freely and voluntarily, without promise of reward, without any duress, fraud or
undue influence and of my own free will with full knowledge that the same could be used
against me and after reading the same and signing each page I, thereafter signed it in the
presence of Homer Murphy, Constable of Wells and Russell R. Plank, inspector of the
Nevada State Police, at Wells, Nevada at four minutes after eight o'clock p. m. on the 11th
day of October, 1948. (Signed) Richard Lindley Boudreau. Witnesses: (Signed) Russell R.
Plank, Insp. NSP. (Signed) Homer Murphy.
In reply to a question by the district attorney, Constable Murphy testified as follows: You
informed the defendant that he was entitled to a lawyer. That if he talked that it had to be
voluntary. That you would use no threats or promise any rewards. If he done it, he would
have to do it voluntarily, which he did. You asked him if he wanted to talk and he said, Yes'
and proceeded with his statement. He further testified that no promise of reward was made
to the defendant, and that no threats were made, that no coercion or force was used, and that
the defendant read the statement very slowly and carefully and then signed it.
1. The defendant did not take the witness stand in his own behalf.
his own behalf. His counsel contend that the confession was not voluntary in that, due to lack
of proper food and rest, his physical condition did not allow of independent and voluntary
action on his part. The only testimony given on this subject is that of Constable Murphy,
which testimony tends to show that the defendant had proper food and rest during the time
elapsing after the return from the scene of the homicide and to the time of the confession. We
conclude that there was ample evidence to justify the trial court in submitting to the jury the
facts and circumstances surrounding the making of the confession, together with the
confession itself.
In urging that the trial court erred in admitting the confession, defendant's counsel argue
that the confession was obtained while the defendant was under illegal detention, and they
cite and rely on the federal rule on the subject as established by the decisions of the Supreme
Court of the United States. The decisions referred to are McNabb v. United States, 318 U.S.
332, 63 S.Ct. 608, 87 L.Ed. 819; United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88
L.Ed. 1140, and Upshaw v. United States, 335 U.S. 410, 69 S.Ct. 170. The federal doctrine is
stated, in the language of Mr. Justice Black in the Upshaw case, 335 U.S. 412, 413, 69 S.Ct.
171, 172, as follows: We hold that this case falls squarely within the McNabb ruling and is
not taken out of it by what was decided in the Mitchell case. * * * The Mitchell case, 322
U.S. at page 68, 64 S.Ct. (896), at page 898 (88 L.Ed. 1142), however, reaffirms the McNabb
rule that a confession is inadmissible if made during illegal detention due to failure promptly
to carry a prisoner before a committing magistrate, whether or not the confession is the result
of torture, physical or psychological', * * * The argument was made to the trial court that this
method of arresting, holding, and questioning people on mere suspicion, was in accordance
with the usual police procedure of questioning a suspect * * *.' However usual this
practice, it is in violation of law, and confessions thus obtained are inadmissible under the
McNabb rule.
* * *.' However usual this practice, it is in violation of law, and confessions thus obtained are
inadmissible under the McNabb rule. We adhere to that rule.
In the Upshaw case, a dissenting opinion was rendered by Mr. Justice Reed, joined in by
Chief Justice Vinson and Justices Jackson and Burton, taking the view that illegal detention
alone, even for the purpose of obtaining information, should not be sufficient to justify the
exclusion of a confession to police officers. Speaking for the minority view, Justice Reed
said: The judicial approach to the problem, of course, must be in a spirit of cooperation with
the police officials in the administration of justice. They are directly charged with the
responsibility for the maintenance of law and order and are under the same obligation as the
judicial arm to discharge their duties in a manner consistent with the Constitution and
statutes. The prevention and punishment of crime is a difficult and dangerous task, for the
most part performed by security and prosecuting personnel in a spirit of public service to the
community. Only by the maintenance of order may the rights of the criminal and the law
abiding elements of the population be protected. As has been pointed out by this Court in the
McNabb and Mitchell cases, United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, 88 L.Ed.
1140, there is no constitutional problem involved in deciding whether a voluntary confession
given by a prisoner prior to commitment by a magistrate should be admitted in evidence. A
prisoner's constitutional rights against self-incrimination or to due process are protected by
the rule that no involuntary confession may be admitted. McNabb v. United States, supra, 318
U.S. at pages 339, 340, 63 S.Ct. (608) at page 612, 87 L.Ed. 819, (823, 824) and cases cited;
Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, (92 L.Ed. 224); Malinski v. People of
State of New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed. 1029; Ashcraft v. State of
Tennessee, 322 U.S. 143, 64 S.Ct. 921, 88 L.Ed. 1192.
In the Upshaw decision, the inadmissibility of the confession was based on rule 5(a) of the
Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides that An officer making
an arrest * * * shall take the arrested person without unnecessary delay before the nearest
available committing magistrate, and when the arrested person appears before the magistrate
a complaint shall be filed forthwith. The comparable provision of Nevada law is N.C.L.,
section 10744, which provides that The defendant must, in all cases, be taken before the
magistrate without unnecessary delay. In 22 C.J.S., Criminal Law, sec. 817, p. 1431, the
following is stated: Matters which do not affect the voluntary character of a confession do
not render it inadmissible as involuntarily made. A confession is not rendered inadmissible
merely by the fact that it was obtained during an undue delay between arrest and the time
when accused was brought before the court.
In 20 Am.Jur., Evidence, p. 432, section 499, the following is stated: The mere fact that
there was an illegal delay in the arraignment of the prisoner will not render a confession
involuntary and inadmissible, even though the delay is for the purpose of obtaining a
confession. However, the fact of an illegal delay for no apparent reason except that the police
need a confession in order to have competent proof of the crime is a matter to be considered
in determining whether the confession was given voluntarily.
The two excerpts just quoted, written before the supreme court adopted the McNabb rule,
reflect the doctrine prevailing in a number of the states as established by their highest courts.
In the dissenting opinion in the Upshaw case, it is said that State courts under similar laws
and conditions have refused to follow the McNabb example, and, in a footnote, the
following cases are cited: Fry v. State, 78 Okl.Cr. 299, 147 P.2d 803, 810, 811; State v.
Folkes, 174 Or. 568, 150 P.2d 17, 25; State v. Smith, 158 Kan. 645, 149 P.2d 600, 604;
People v. Malinski, 292 N.Y. 360, 55 N.E.2d 353, 357, 365; State v. Collett, Ohio App., 5S
N.E.2d 417, 426, 427; State v. Nagel, N.D., 2S N.W.2d 665, 679; State v.
600, 604; People v. Malinski, 292 N.Y. 360, 55 N.E.2d 353, 357, 365; State v. Collett, Ohio
App., 58 N.E.2d 417, 426, 427; State v. Nagel, N.D., 28 N.W.2d 665, 679; State v. Ellis, 354
Mo. 998, 193 S.W.2d 31, 34, [37]; Finley v. State, 153 Fla. 394, 14 So.2d 844; State v.
Browning, 206 Ark. 791, 178 S.W.2d 77, 78-80; Russell v. State, 196 Ga. 275, 26 S.E.2d
528, 534.
In the case of State v. Carrick, 16 Nev. 120, this court said:
It is only in cases where the confession is obtained by mob violence, or by threats of
harm, or promises of favor or worldly advantage held out by some person in authority, or
standing in such intimate relation from which the law will presume that his promises or
threats will be likely to exercise such an influence over the mind of the accused as to induce
him to state things that are not true, that will authorize the courts to exclude the confession or
admission.
The law in its general application to this question, as well as others, is founded in reason
and common sense. Its object is to ascertain the truth, and it is not its purpose to reject any
reliable and competent means of attaining it.
In the case of State v. Mircovich, 35 Nev. 485, 130 P. 765, this court said: It is contended
that the court erred in admitting certain statements and admissions in the nature of a
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 * * *.
In the case of State v. Wilson, 39 Nev. 298, 156 P. 929, this court said: It requires no
citation of authority, as we view it, to support the assertion that before the statement or
series of answers made by the defendant in the police headquarters while he was under
arrest charged with the offense could have been admitted as a part of the state's case in
chief, it would have been necessary to lay a foundation for its admissibility, showing that
the statement was voluntary, and that the same was made without hope of reward,
inducement, or fear of punishment.
the statement or series of answers made by the defendant in the police headquarters while he
was under arrest charged with the offense could have been admitted as a part of the state's
case in chief, it would have been necessary to lay a foundation for its admissibility, showing
that the statement was voluntary, and that the same was made without hope of reward,
inducement, or fear of punishment. State v. Dye, 36 Nev. 143, 133 P. 935, and cases there
cited.
The case of State v. Hall, 54 Nev. 213, 13 P.2d 624, dealt with an oral confession, and it
was urged on behalf of defendant that his maudlin condition as the aftermath of excessive
drinking rendered his statements involuntary. This contention was rejected by this court, and
the court added, All of the witnesses testifying to appellant's statements said that no
inducements or rewards were offered to appellant, or threats made to induce him to confess
the killing. The statements were properly admitted for the consideration of the jury.
2. In the cases just referred to, it is seen that this court has followed the rule that the
voluntary character of a confession is the chief test of its admissibility. We have concluded
that this rule should be adhered to in cases where, as in the instant case, the confession is
made while the defendant is under arrest and prior to his presentation before a magistrate, and
though the detention shall have become unlawful.
It is true that the practice of interrogating prisoners by police officers is frequently abused.
In dealing with this problem, Professor Wigmore sums up his views on the subject as follows:
But, it is argued, there are abuses by the police. Very true,here and there, at least. It does
not follow, however, that a stricter rule of exclusion of confessions is the proper remedy. It is
still a misguided remedy. The first remedy is to improve police personnel. The second one is
to provide a means of speedy confession which shall be less susceptible of abuses, while still
taking advantage of the inherent psychological situation. In short, let an authorized skilled
magistrate take the confession.
skilled magistrate take the confession. Let every accused person be required to be taken
before a magistrate, or the district attorney, promptly upon arrest, for private examination; let
the magistrate warn him of his right to keep silence; and then let his statement be taken in the
presence of an official stenographer, if he is willing to make one. 3 Wigmore on Evidence,
3d ed., sec. 851, at page 319.
3. The circumstances of the questioning of the defendant in this case, at the jail, in the
middle of the night and in the presence of a brother of the deceased, raise a conjecture of
possible coercion. However, after time for rest and reflection, the defendant, under conditions
similar to those advised by Wigmore, made and signed his detailed confession. The proof of
the possibility of coercion in the first instance is, as we view it, overcome by the showing of
lack of coercion when the confession was reduced to writing. See 22 C.J.S. Criminal Law,
sec. 835, at page 1460.
While appreciating the reasoning and purpose of the recent decisions of our highest
national tribunal on the problem relating to confessions, and entertaining for that court the
highest respect, we are constrained by the reasoning of the minority view as well as that of a
number of the state courts which have already exercised the right of the states to deviate from
the doctrine of the federal cases referred to. In Townsend v. Burke, 334 U.S. 736, 68 S.Ct.
1252, 1254, 92 L.Ed. 1690, the supreme court said: The plea for relief because he was
detained as he claims, unlawfully is based on McNabb v. United States, 318 U.S. 332, 63
S.Ct. 608, 87 L.Ed. 819. But the rule there applied was one against use of confessions
obtained during illegal detention and it was limited to federal courts, to which it was applied
by virtue of our supervisory power.
We consider that the rule which we are following is in accord with the principles of the
common law and is adapted to the needs of the law enforcing branch of the state government.
The rule does not preclude the belief that progress should and will be made toward the
elimination of the abuses referred to.
belief that progress should and will be made toward the elimination of the abuses referred to.
4, 5. Defendant's counsel contend that the formal language used in the introductory
paragraph of the confession precludes a belief that the paragraph was dictated by the
defendant. It is also urged that Constable Murphy having testified that the defendant dictated
the language of the paragraph referred to, his entire testimony as to the giving of the
confession is discredited and hence the confession should have been rejected. The general
rule is that a confession is admissible although not in the exact words of the accused, where it
was read by the accused and signed or otherwise admitted by him to be correct. 22 C.J.S.,
Criminal Law, sec. 833, at page 1455, and cases cited. In State v. Brasseaux, 163 La. 686,
112 So. 650, 654, the supreme court of Louisiana said: While the introductory paragraph
was not dictated by defendant, it was read to him by the assistant district attorney, before
defendant signed the confession, and defendant acquiesced in the statement without
objection.
It was for the jury to determine as to the truth or falsity of any portion of the testimony of
the witness and as to the effect of falsity on other portions of his testimony, and they were so
instructed by the court. They were also properly instructed as to the manner in which they
should consider and weigh the confession. With the confession properly before them and
evidently relying on its statements, the jury brought in their verdict of murder of the first
degree.
It is urged on behalf of defendant that No evidence of any kind was developed indicating
a criminal background of the defendant, nor was any evidence developed indicating a
purpose, plan or set of facts which might establish a motive or a wilful and deliberate act. It
is argued that, in this situation, wilfulness and premeditation could only be inferred from the
facts surrounding the death, rather than from facts establishing the reason for the death. As to
the accompanying facts, the jury had before them, in addition to the confession, the
circumstances connected with the crime substantially as stated above.
jury had before them, in addition to the confession, the circumstances connected with the
crime substantially as stated above. It will be noted that, in the confession, the defendant
stated that, at his request, Stewart stopped the car and defendant got out of the car to urinate
and that, while reentering the car, he took the pistol from his pocket and shot Stewart through
the right side of the face, that Stewart sat there for a minute and then got out and walked
toward the front of the car and over to the right front fender, then walked back to the left side
of the car and got in; that when Stewart got into the car he shot him the second time, this time
through the chest; that Stewart sat there a minute and then fell toward the right side of the car;
that he, the defendant, got out and went around the car, got into the driver's seat and let the
car coast a little way, when he stopped the car and Stewart sat up, fumbled with the door and
got out; that defendant got out and went around to Stewart's side of the car, the latter having
walked about five feet off the right hand side of the highway; that he took hold of Stewart
and, defendant's statement continues, he sort of walked and moved when I pushed him for
about ten feet more, then he fell; I dragged him down to about 15 more feet I guess and shot
him again on the left side of the head; there was a pile of rocks and I tumbled a few of them
down by his legs and left him.
6, 7. Motive is not an essential element of murder and need not be proved to sustain a
conviction, if the other evidence is sufficient. 41 C.J.S., Homicide, sec. 318, p. 31. The record
shows no provocation on the part of the deceased towards the defendant. The sequence of
events and the intervals, from the firing of the first shot until the last shot was fired, allowed
time for deliberation and premeditation and the forming of a design to kill.
The repeated shooting of the deceased indicated such a design. In dealing with the subject of
deliberation and premeditation in the case of State v. Gregory, 66 Nev. 423, 212 P.2d 701,
this court quoted the rule on the subject as set forth in 26 Am.Jur.,
subject as set forth in 26 Am.Jur., Homicide, 187, sec. 42, as follows: 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.
8. As we view the facts disclosed, the jury had before them substantial evidence from
which they could reasonably infer express malice, the deliberate intention unlawfully to take
away the life of a fellow creature (N.C.L., sec. 10067) and that the defendant acted upon
deliberation and premeditation.
9. With reference to the suggestion that this court modify the judgment by reducing the
degree of the crime, we need do no more than refer to State v. Robison, 54 Nev. 56, 6 P.2d
433. In that case application was made to this court to modify the judgment of second degree
murder to one of manslaughter. The court, speaking through Ducker, J., said: 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.
No error appearing, the judgment and the order denying defendant's motion for a new trial
are hereby affirmed, the application 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 carrying into effect, by the warden of the state prison, of the judgment
rendered.
affirmed, the application 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 carrying into
effect, by the warden of the state prison, of the judgment rendered.
Horsey, C.J., and Badt, J., concur.
Eather, J., being absent on account of illness, the Governor designated Honorable Wm. D.
Hatton, judge of the Fifth Judicial District, to act in his place.
____________
67 Nev. 54, 54 (1950) McCown v. Geller
ALICE B. McCOWN, Appellant, v. CHARLES GELLER, as Administrator with the Will
Annexed of the Estate of Malcolm S. McCown, Deceased, Respondent.
No. 3583
February 7, 1950. 214 P.2d 774.
Action by Alice B. McCown against Charles Geller, as administrator with will annexed of
estate of Malcolm S. McCown, deceased, on plaintiff's rejected claim against deceased's
estate for alleged dower and community property.
The Sixth Judicial District Court, Humboldt County, Taylor H. Wines, judge presiding,
sustained defendant's demurrer to plaintiff's fourth amended complaint without leave to
amend and entered judgment for defendant, and the plaintiff appealed.
The Supreme Court, Badt, J., held that plaintiff's factual allegations of foreign law
indicated that plaintiff's alleged rights were statutory in their origin and that plaintiff's
considered and determined refusal to quote or refer to any foreign statute vesting in her any
dower right left her fourth amended complaint fatally deficient and that statute comparable to
wife's right of dower enunciated in English statute did not confer on plaintiff right to take
value of her interest in divorced husband's lands out of his estate.
plaintiff right to take value of her interest in divorced husband's lands out of his estate.
Judgment affirmed without prejudice to right of plaintiff to commence appropriate
action in court of competent jurisdiction in Dominion of Canada for enforcement of
asserted dower rights in realty there situated.
1. Pleading.
Where foreign law relied on by plaintiff is pleaded as facts, on demurrer court will consider only
sufficiency of pleading of such laws as facts.
2. DowerStatutes.
Where, in widow's action against divorced husband's administrator to recover dower right from proceeds
of sale of Canadian property, widow pleaded foreign law by quoting lengthy excerpts from English and
Canadian courts which indicated her dower right, if any, was statutory, but no foreign statute was referred
to or quoted, complaint was fatally deficient.
3. Statutes.
Where plaintiff seeks recovery in reliance on a foreign statute, and existence of foreign statute is
ingredient to his cause of action, and is essential in order to state that cause of action, statute must be
pleaded with sufficient particularity and distinctness to enable court to judge its effect.
4. DowerStatutes.
Where wife brought action against administrator of divorced husband's estate to recover money judgment
equal to her dower rights in Canadian realty, proceeds of which allegedly constituted part of deceased
husband's personal estate, to which she alleged she was entitled under Canadian law, but foreign statutes
were not quoted or referred to in complaint, and under statutes comparable in all substantial respects to
wife's right of dower enunciated in English cases, no right was conferred on widow to take value of her
interest in husband's realty out of his estate, complaint did not state a cause of action.
5. Pleading.
Where plaintiff filed five different complaints in action, none of which stated a cause of action, trial court
did not abuse discretion in sustaining demurrer to fourth amended complaint without leave to amend and
entering judgment for defendant.
Anthony M. Turano, of Reno, and Philander Brooks Beadle and George Olshausen, both
of San Francisco, Calif., for Appellant.
John R. Ross, of Carson City, and Geraldine McCown, of Oakland, Calif., for Respondent.
OPINION
By the Court, Badt J.:
(1) Does a plaintiff in a suit against an administrator in a district court in this state, seeking
to impress upon the proceeds of a sale of Canadian property made by her decedent divorced
husband, a dower right alleged to exist under English and Canadian law, sufficiently plead
such foreign law by quoting lengthy excerpts from opinions of the English and Canadian
courts which clearly indicate that her dower right, if any, is statutory, without quoting,
referring to or pleading the substance of the statutes in effect at the time during coverture
when her inchoate dower right arose, or at the time it became vested (if at all) upon the death
of her deceased divorced husband, or at the time he barred or attempted to bar dower by
conveyance during his lifetime after the divorcethe divorce being alleged to be ineffective
to disturb such rights because it was granted in Nevada on substituted service on the wife
residing in California?
(2) May a surviving divorced wife, upon the theory that her former husband's Nevada
divorce based on substituted service while she was residing in California could not affect her
property rights in other states, recover, in an action in this state against the resident
administrator of the estate of her deceased former husband, a money judgment equal to her
dower rights in real property (whose sale by the divorced husband produced a part of his
personal estate in Nevada) situate in Yukon Territory, Dominion of Canada, to which she
would be entitled under asserted English and Canadian law as the deceased's surviving
widowwhich rights are alleged to depend only upon (1) his seizin during coverture, (2) his
death and (3) her survivorship as his widow, and which are alleged to be a life estate in a
one-third interest in such lands, of which she could not and cannot be divested without her
consent? While a negative answer to either of these queries must defeat the plaintiff's
cause of action, both have been discussed at such length in the briefs that we find it
proper to dispose of both of them.
While a negative answer to either of these queries must defeat the plaintiff's cause of
action, both have been discussed at such length in the briefs that we find it proper to dispose
of both of them.
We heretofore held appellant's first amended complaint to be insufficient in its attempted
pleading of foreign law. Geller v. McCown, 64 Nev. 102, 177 P.2d 461, and 64 Nev. 106,
178 P.2d 380. The present appeal tests the sufficiency of appellant's fourth amended
complaint, as the district court sustained respondent's demurrer thereto without leave to
amend and entered judgment for defendant.
The fourth amended complaint alleges (1) the marriage of plaintiff Alice B. McCown and
defendant's testator Malcolm S. McCown in Kings County, Washington, in 1927; (2) the
death of Malcolm in Winnemucca, Humboldt County, Nevada, in 1941 and his residence in
Nevada at the time of his death; (3) the appointment of Geller as administrator C.T.A. by the
district court of Humboldt County and the pendency of the probate proceedings; (4) the filing
by Malcolm of a divorce complaint in the district court of Humboldt County in July, 1936 on
the statutory ground of five years' separation, the making of only substituted service on Alice,
then a resident of California, and the entry of a divorce decree in September, 1936, based on
such substituted service purporting to dissolve the marriage but not purporting to settle or
affect any rights of either of said parties in any property, marital or otherwise; (5) the
ownership by Malcolm at the time of his death of certain real and personal property valued at
$30,287.50, all listed and described, and including two promissory notes of $12,500 each
payable to Malcolm and executed by Geller, and Malcolm's ownership of other real property
of value and description unknown to the plaintiff; (6) that such additional unknown property
is, according to plaintiff's information and belief, situate in Yukon Territory, Canada, and that
the two notes of $12,500 each, above mentioned, were given in exchange for the Hector
Claim also situate in Yukon Territory, Canada; that all of said property was owned by
Malcolm at the time of his marriage to Alice and that she at no time joined in the
conveyance of any interest to Geller or authorized such conveyance or transfer; that
Geller is the nephew of Malcolm and that the transfer by Malcolm to Geller was for the
purpose of defeating Alice's claims and rights to the property; that she had no knowledge
of the transfer or of the notes until after Malcolm's death; and that said notes are a part
of the assets of the estate being administered in Humboldt County, Nevada.
exchange for the Hector Claim also situate in Yukon Territory, Canada; that all of said
property was owned by Malcolm at the time of his marriage to Alice and that she at no time
joined in the conveyance of any interest to Geller or authorized such conveyance or transfer;
that Geller is the nephew of Malcolm and that the transfer by Malcolm to Geller was for the
purpose of defeating Alice's claims and rights to the property; that she had no knowledge of
the transfer or of the notes until after Malcolm's death; and that said notes are a part of the
assets of the estate being administered in Humboldt County, Nevada.
Paragraph VII of the complaint is in the nature of a brief setting forth asserted applicable
English and Canadian law, as evidenced by opinions of the English and Canadian courts, to
the purport and effect that Alice is entitled to a dower right amounting to one third of all of
such Canadian properties, which right remained unaffected by Malcolm's conveyance, and
which in particular attaches to the two notes aggregating $25,000, alleged to be the proceeds
of the sale to Geller of the Hector Claim in Yukon Territory, Canada.
The plaintiff then alleges (8) that she served and filed her claim against the estate among
other things, for one-half of the said estate as the community property of the plaintiff, a copy
of which claim is attached to the complaint; (9) that the administrator rejected the claim as
not a legal claim against the estate of said deceased and served plaintiff with a notice of
such rejection; and (10) that one third of the estate belongs to the plaintiff by way of dower
and as the widow of Malcolm S. McCown under the laws of Yukon Territory as aforesaid;
that the value of one third of said estate is $15,143.75. She prays for judgment against the
administrator for such sum and such other relief as is meet and proper. The rejected claim
is for three items as follows:
1. Claim for one half of estate on the basis of community property.......................$15,143.75 2.
2. Claim for one third of the estate on the basis of dower...........................................$10,095.83
3. Claim on the basis of the judgment in the California divorce suit, with interest thereon at
7% per annum from April 1, 1937...........................................................................6,100.00
We first proceed to clear away some of the dead wood. While the matters, of which we are
thus rather summarily disposing, are the subject of much space in the briefs of counsel (the
appeal was not orally argued but was by stipulation submitted on written briefs), we feel that
this treatment is justified under propositions of law so well recognized as not to warrant
extended discussion or citation of authority.
Defendant's first amended complaint, which we held insufficient on the former appeal, is
designated First Amended Complaint on Rejected Claim. The fourth amended complaint
now before us is entitled Fourth Amended Complaint on Rejected Claim. It is stated by
respondent and not denied by appellant that the original complaint and the second and third
amended complaints were likewise entitled as being complaints on rejected claims. It is
clear that the claim is not a creditor's claim as contemplated by our recognition of claims
against the estates of deceased persons, that it was not based on any transaction with the
decedent during his lifetime, that it was never a debt of decedent and that it cannot be made
the basis of an action. Indeed, appellant's reply brief on this point suggests that reference in
the fourth amended complaint to the claim against the estate may be disregarded as
surplusage without interfering with other causes of action therein well pleaded. We
accordingly give no further consideration to the sufficiency of the complaint as based upon a
rejected claim against the estate.
Appellant likewise does not urge that item of the claim nor that part of her cause of action
growing out of what is referred to as the California decree. This is understandable in view of
the Nevada decree obtained by Malcolm against Alice in 1936 as against the California
judgment which appears to be an interlocutory decree obtained by Alice in 1937, without
a showing of any appearance by Malcolm or service upon him in California.
by Malcolm against Alice in 1936 as against the California judgment which appears to be an
interlocutory decree obtained by Alice in 1937, without a showing of any appearance by
Malcolm or service upon him in California. The present relief sought by plaintiff, it should
again be noted, is from the same district court in Humboldt County, Nevada, sitting in
probate, which entered the divorce decree in 1936.
The fourth amended complaint, both in its allegations and in its prayer, insists that under
English and Canadian law plaintiff is entitled to a dower right amounting to one third of the
decedent's Canadian estate or the proceeds of the sale thereof; yet so far as such English and
Canadian law may be said to be pleaded by the plaintiff, such dower right is restricted to a life
estate in a one third interest of the property. The repeated claims and demands of plaintiff,
both in the fourth amended complaint and in appellant's opening and reply briefs, for one
third of the property itself are taken to be confined to a demand for a life estate in one third of
such property.
Repeated claims are made, both in the fourth amended complaint and in the briefs, to a
community property right in the plaintiff amounting to one half of the property of the estate,
as well as to a dower right amounting to one-third. The two are of course inconsistent with
each other. There is no support in the allegations of the fourth amended complaint for the
establishment of a community property right, and we dismiss the same from further
consideration. We may note, in passing, that the complaint alleges that the property in
question was owned by Malcolm at the time of the marriage, so that under our statute, N.C.L.,
secs. 3355 and 3356, it was Malcolm's separate as distinguished from community property.
Repeatedly throughout appellant's opening and reply briefs is the assertion that appellant's
action is for a money judgment against the estate. This is consistent with the allegations of the
fourth amended complaint and with the contentions made in appellant's brief only in the
sense and to the extent that it could be taken to mean a request that the court set aside a
sum equal to one third of the proceeds of the sale of the Hector Claim in some kind of a
trust fund whose interest or "rents, issues and profits" would be payable to the plaintiff
during her life, with the principal sum to be thereafter paid over to the remainderman or
remaindermen under the testator's will.
and with the contentions made in appellant's brief only in the sense and to the extent that it
could be taken to mean a request that the court set aside a sum equal to one third of the
proceeds of the sale of the Hector Claim in some kind of a trust fund whose interest or rents,
issues and profits would be payable to the plaintiff during her life, with the principal sum to
be thereafter paid over to the remainderman or remaindermen under the testator's will.
Appellant repeatedly insists that she has stated a cause of action for equitable conversion.
There is of course no equitable conversion in the case. There was an actual conversion of the
Hector Claim by its sale by the testator for a consideration of $25,000 evidenced by the two
promissory notes. The principles of equitable conversion are so well recognized by courts of
equity that we need not point out that nothing in the fourth amended complaint makes them
applicable here.
Plaintiff's fourth amended complaint is predicated upon the contention that her asserted
dower right in the Canadian property could not and cannot be displaced without her consent,
which consent she has never given, and that the Canadian property has always been, since her
marriage to Malcolm, subject to the lien of that right, despite any attempted conveyance by
Malcolm during his lifetime. It is clear that an appropriate action in rem to enforce such claim
(appellant contends that this is not such an action) must necessarily be commenced not only
in the jurisdiction of the situs of the property but against the heirs or devisees of the decedent
(if he had not conveyed during his lifetime) or against his transferees (if he had conveyed
during his lifetime). The only defendant to the present action is Geller as administrator with
will annexed of Malcolm's estate.
Appellant's brief also attempts to support her claim for a money judgment against the
administrator under the theory that the husband's conveyance was a fraud against creditors.
We have in this opinion gone to the length of reciting the allegations of the fourth amended
complaint in considerable detail, and we think that it must be clear therefrom that no
such cause of action is pleaded.
complaint in considerable detail, and we think that it must be clear therefrom that no such
cause of action is pleaded.
With the foregoing observations, we pass then to the two questions requiring
consideration, as posed in our opening paragraphs. Assuming for the sake of argument that
Malcolm's Nevada decree of divorce in 1936 obtained on substituted service while Alice was
a resident of California, and in an action in which she did not appear, could not affect her
inchoate and contingent dower rights in property situate in Yukon Territory, Canada,
1
has
appellant sufficiently pleaded English and Canadian law to show such right and that upon
Malcolm's death such asserted inchoate and contingent dower right became vested entitling
her to an assignment of dower in the Canadian property, and that when it appeared that the
property had been sold by Malcolm after his divorce but prior to his death, such dower right
attached to the proceeds of the sale now in the hands of the Nevada administrator, and was
subject to enforcement by an action against the administrator in Humboldt County, Nevada?
The only statutory law pleaded in the fourth amended complaint is set forth as follows:
That the Northwest Territories Act, passed by the British Parliament in 1S9S, which is
60-61 Victoria, c.
____________________

1
Respondent would not have us indulge even this presumption. He relies upon the proposition: Ubi nullum
matrimonium ibi nulla dos. Where there is no marriage, there can be no dower. Appellant's status as a surviving
divorced wife, he contends, is entirely different from the status of a surviving widow, and the Nevada decree,
though based on substituted service, effectively dissolved the marriage relationship so that a right of dower could
never thereafter be successfully asserted even in another state or a foreign country where the right of dower
exists. See Hilbish v. Hattle, 145 Ind. 59, 44 N.E. 20, 33 L.R.A. 783; Barrett v. Failing, 111 U.S. 523, 4 S.Ct.
598, 28 L.Ed. 505. Appellant insists that this contention is refuted by Keenan v. Keenan, 40 Nev. 351, 164 P.
351, and Doerr v. Forsythe, 50 Ohio St. 726, 35 N.E. 1055, 40 Am.St.Rep. 703, and that in any event the
proceeds of the sale of the Canadian property are now within the jurisdiction of the same court that rendered the
divorce decree. So we indulge the presumption of the text for the sake of argument, as further discussion of the
point is not necessary to our decision.
1898, which is 60-61 Victoria, c. 28, s. 4 and chapter 50 of the Revised Statutes of Canada,
governs the Yukon Territory. Section 11 thereof provides as follows: Subject to the
provisions of this act, the laws of England relating to civil and criminal matters, as the same
existed on the fifteenth day of July, in the year of our Lord 1870, shall be in force in the
Territories, in so far as the same are applicable to the Territories, and insofar as the same have
not been or are not hereafter repealed, altered, varied, modified or affected by any act of the
Parliament of the United Kingdom applicable to the Territories or of the Parliament of
Canada, or by any ordinance of the Lieutenant Governor in Council or of the Legislative
Assembly 60-61 Victoria c. 28 s. 4.'
Accepting this allegation as properly alleging that in 1898 the laws of England relating to
civil and criminal matters, as such laws of England existed in 1870 were in force in Yukon
Territory insofar as they had not been repealed, altered, varied, modified or affected by any
act of the parliament of the United Kingdom or of the parliament of Canada or ordinance of
the lieutenant governor in council or the legislative assembly, we then search through the
eight pages comprising paragraph VII of the fourth amended complaint to ascertain first what,
if any, statutory provisions were in effect in 1870 or had been enacted between 1870 and
1898 or were in effect during the period of coverture, 1927-1936, or at the time of the
conveyance between 1936 and 1941 or at the time of Malcolm's death in 1941, pertaining to a
surviving wife's right of dower and to ascertain whether in such paragraph VII or elsewhere in
the complaint there are any allegations negativing any repeal, alteration, variation,
modification or other limitation of any such statutes. We find nothing in this regard. In place
thereof numerous decisions of the Canadian and English courts of chancery are cited and
quoted at length.
The first reference is to Sheppard v. Sheppard (1867), 14 Grant Ch. 174 (courts of
chancery of Upper Canada), recognizing a widow's right to dower and stating: "We have
no legislative or judicial policy opposed to this.
Canada), recognizing a widow's right to dower and stating: We have no legislative or
judicial policy opposed to this. On the contrary, the statutory right to dower in equitable
cases may be considered as upholding if not extending it. (Emphasis supplied.) Thus it
appears from the first decision pleaded as a recognition of a widow's dower right that the
same was governed by statute prior to 1870 and at least as early as 1867, and was thereafter
extended by statute to include equitable estates.
The statute referred to is apparently what is known as The Dower Act of 1833 (3 & 4 Will.
4, c. 105) entitled An Act for the amendment of the law relating to dower. Section 2 of this
act makes the dower right extend, as noted in Sheppard v. Sheppard, to equitable estates.
Astonishingly enough, the eye then catches the wording of section 4 of the act which reads as
follows: No widow shall be entitled to dower out of any land which shall have been
absolutely disposed of by her husband in his lifetime, or by his will. Chitty's English
Statutes, 6th Ed., Vol. IV, p. 197.
1-3. Our reference to this statute is in full recognition of the rule laid down in our first
opinion, 64 Nev. 102, 177 P.2d 461, and on rehearing, 64 Nev. 106, 178 P.2d 380, that the
laws of England and Canada relied on by plaintiff are pleaded as facts, and that on demurrer
we are considering only the sufficiency of the pleading of those laws as facts. Accordingly we
do not quote section 4 of the Dower Act of 1833 for the purpose of contradicting or avoiding
plaintiff's allegations as to what the dower law of England or of Canada was or is under
plaintiff's quotations from the opinions of the English and Canadian courts. Indeed it is quite
possible that the Dower Act of 1833 has since been amended on many occasions.
2
But when
the cases relied upon by plaintiff as factual allegations of what the foreign law is, clearly
indicate to us that the plaintiff's alleged rights are statutory in their origin, we are forced
to conclude that the plaintiff's considered and determined refusal to quote or even to
refer to any foreign statute vesting in her any dower right leaves the fourth amended
complaint fatally deficient.
____________________

2
In 24 Earl Halsbury Laws of England (1912) 192, it is indeed stated that formerly, as pleaded by the
plaintiff, if the husband alienated, he alienated subject to the right of dower but that by virtue of the Dower Act
of 1833 the widow is not entitled to dower
by plaintiff as factual allegations of what the foreign law is, clearly indicate to us that the
plaintiff's alleged rights are statutory in their origin, we are forced to conclude that the
plaintiff's considered and determined refusal to quote or even to refer to any foreign statute
vesting in her any dower right leaves the fourth amended complaint fatally deficient. We
made this clear in the first appeal of this case in which we quoted with approval the rule laid
down by the courts of last resort of Utah, California, and Colorado. When a plaintiff seeks
recovery in reliance on a foreign statute, where the existence of a foreign statute is ingredient
to his cause of action, where a foreign statute is essential in order to state that cause of action,
the same must be pleaded. Although there is some divergence of opinion as to just how the
statute should be pleaded, we are inclined to the view that under the generally approved rules
of pleading in this jurisdiction, the better method would be to plead in haec verba, with
proper reference to the place where the same may be found, the applicable parts of the statute
on which reliance is placed. But whether it be so pleaded, or attached as an exhibit which is
made a part of the complaint, or whether its substance be pleaded (as distinguished from the
legal conclusions of the pleader), it is generally agreed by virtually all the courts that, subject
to minor exceptions not here applicable, it must be pleaded with certainty and with sufficient
particularity and distinctness to enable the court to judge its effect.
____________________
out of any land which has been absolutely disposed of by her husband in his lifetime, or by his will. Various
means were used prior to the Dower Act of 1833, by which the husband defeated or barred dower. This was by
legal jointure, by equitable jointure or by conveyance to the husband to uses to bar dower. But the statutes of
uses (27 Hen. 8, c. 10), by turning uses into legal estates, made them liable to dower and it was accordingly
provided that estates might be conveyed by way of jointure, so as to bar the general right to dower. These
methods have become obsolete since the right of dower under the Dower Act of 1833 is now placed entirely
under the control of the husband id. n. (q). As stated in the text this authority is not quoted for the purpose of
showing what the English law of dower is, but simply to indicate the futility of basing a cause of action on
foreign statutory law without presenting the statute.
and with sufficient particularity and distinctness to enable the court to judge its effect. See 41
Am.Jur. 298, Pleadings, sec. 14; Annotation 134 A.L.R. 570, et seq.
The foregoing comment obviates the necessity of discussing at length the other English
and Canadian decisions quoted in the eight pages comprising paragraph VII of the fourth
amended complaint. Most of them are very early cases. Williams v. Thomas (1909), 1 Ch.
713, is quoted at considerable length. One of the opinions in that case (three separate opinions
appear) deals at length with the history of the law of dower from the time of Magna Carta and
with the various means of enforcing the right of dower and the modification of the law of
dower by sundry statutes, as well as the statutory extension thereof to estates in equity as
referred to in the Sheppard case, again apparently referring to the Dower Act of 1833.
We have carefully examined the excerpts from other opinions contained in paragraph VII
of the fourth amended complaint, but we are unable to find therefrom, within the rule above
enunciated, a pleading of English or Canadian law showing an inchoate and contingent right
of dower in the plaintiff during the period of coverture, from 1927 to 1936, or a vesting of
such right of dower upon the death of the decedent in 1941.
On the second proposition, assuming again that the Nevada divorce decree based on
substituted service could not affect the wife's dower rights in real property situate in Canada,
and assuming that the plaintiff has sufficiently pleaded the law of Canada and Yukon
Territory to evidence a dower right of a life estate amounting in value to one third of the
Canadian property, which was not barred or defeated by the husband's conveyance during his
lifetime, we are still of the opinion that the present action against the Nevada administrator
(considered as an action to impress the dower right upon the proceeds of the sale of the
Hector Claim) cannot be maintained.
It is stated in 28 C.J.S., Dower, sec. 86 page 177: A proceeding for the recovery of dower
is not one in personam against the heirs at law, but is in the nature of a proceeding in rem
against real estate to secure an assignment to the widow of that portion of the real estate in
which she is entitled to dower. From the same source and from the authorities cited in
support of the text, we find that recovery of dower in sundry jurisdictions has been had (1)
through an assignment by summary process of the probate court incident to administration of
the husband's estate (in the forum of the situs of the property); (2) by the common law action
of dower; (3) by an action for ejectment against the tenant of the lands; and (4) through the
concurrent or auxiliary jurisdiction of the courts of equity. Such equitable jurisdiction
apparently arises in cases which have always been considered cognizable in equity, such as
suits to set aside fraudulent conveyances or conveyances in fraud of creditors or to compel
releases of dower obtained from the wife by fraud or in actions for accounting or a suit to
declare a trust in real estate, etc. 28 C.J.S., Dower, sec. 86, c.(2) page 178. It is also stated that
the common law writs of dower have been abolished in England, but that the substance of the
common law action is statutory in many of the states. Appellant however insists that the
fourth amended complaint alleges as a fact that the law applicable to the case is to the effect
that dower may be assigned against the proceeds of the sale of land in which the widow was
dowable and that paragraph VII of such complaint quotes numerous Canadian and English
cases to such effect. The right to assign dower against the proceeds of sales of dowable lands
is discussed in five of the cases advanced. The first is Wilson v. Clark, in the high court of
chancery of England (1916), 1 ch. 220. In that case the doweress, more modest in her
demands than appellant, did not seek a judgment against the estate for her proportion of the
purchase price (one half under gavelkind tenure instead of the dower of one third as under
freehold), but only the present value of her life estate in such one half.
third as under freehold), but only the present value of her life estate in such one half. This the
court held she could not have, though it does indeed say that the rights in the purchase
money would correspond with the rights in the lands themselves, that is to say that the widow
would be entitled to the income during widowhood of one half of the purchase money instead
of receiving one half of the rents of the lands sold. But the plaintiff widow, who brought the
action against the heirs (or remaindermen) for the purpose of assignment of dower was the
administratrix of her husband's estate, and had as such administratrix sold the land in the
course of administration, presumably under English statutes governing the administration of
estates of deceased persons, and apparently, as we deduce from the wording of the opinion,
with the consent of the remaindermen. The court held that she had become a trustee of the
fund. The sale to third parties had divested both the doweress and the remaindermen of all
their rights in the land itself. The very gist of the present action, on the contrary, is that the
decedent's sale during his lifetime without the consent of appellant was and still is subject to
the lien of her dower righta life estate in one third of the value. Indeed it is insisted
repeatedly in appellant's brief that as against such dower right the sale was void. In Wilson v.
Clark the situs of the property within the jurisdiction, the presence as parties of the heirs or
grantees of the decedent, and the sale of the property by the probate court with the consent of
all of the parties denude the case of any value as a statement of English law applicable here.
The second case pleaded as an allegation of the asserted law that dower may be assigned to
the proceeds of the sale is Sheppard v. Sheppard, in the court of chancery for Upper Canada,
14 Grant, ch. 174 (which case, as we have noted above, holds the right to be a statutory one),
from which six lines are quoted, which we find to be entirely inadequate to establish the
rule of law asserted.
which we find to be entirely inadequate to establish the rule of law asserted.
The third case pleaded as a fact in establishing such rule is Dudley & Ward v. Dudley, 24
Eng.Rep.R. 118, and, so far as the quoted portion of the decision indicates, had to do not with
the proceeds of any sale but with the payment of one third of certain profits which were
treated by the court as rents.
The fourth case pleaded as a recital of English law is Bishop v. Bishop, 10 L.J. Ch.N.S. 302.
Apparently, from the seven lines of the opinion that are quoted in the allegation, dower had
already been assigned. The heir had cut timber from the land and the court held that her life
estate, like that of any other tenant for life, was impeachable for waste and that she was
therefore entitled to one third of the income produced from the sale of timber from the land of
which she was dowable.
A brief reference in the complaint to Hall's Estate, L.R. 9 Eq. 179, pleads as a conclusion
of law on the part of the plaintiff that the widow has a right of dower in the money paid by
the government when land subject to dower is taken in condemnation proceedings. It is
obvious such pleading of this case does not establish the rule of law claimed to be pleaded as
a fact.
The foregoing discussion disposes of all of the cases pleaded in the fourth amended
complaint and relied upon in the briefs as establishing the rule of law under discussion. We
have no hesitation in asserting that they do not establish the rule as applied to the
circumstances in this case. The other English cases pleaded in paragraph VII of the complaint
deal generally with the right of dower and with the effect on such right of a conveyance by the
decedent during coverture.
As has been stated, the only one of appellant's several conflicting and inconsistent theories
on which a cause of action can be predicated from the facts pleaded in her complaint is to
establish her asserted right of dower in the proceeds of the sale of the Hector Mining Claim
made by her divorced former husband.
in the proceeds of the sale of the Hector Mining Claim made by her divorced former husband.
This she seeks to do by an action against the administrator which, if successful, would still
leave the Hector Claim and other real property in Yukon Territory subject to the lien of her
dower right, or would give rise to other untenable possibilities such as shifting the dower
right from one parcel to another, or asserting the same against one grantee and not against
another grantee. Outside of the English and Canadian authorities above referred to, she cites
no decision of this or any other court sustaining this position. The only case called to our
attention, or which we have been able to discover, in which a similar situation is presented, is
In re Park's Estate, 31 Utah 255, 87 P. 900, 901. There the surviving widow alleged that
during coverture her husband had during his lifetime conveyed certain property in which
conveyance she did not join and for which she received no consideration; that Park's grantees
went into and continued to retain possession; that a one third in value of the real estate
conveyed amounted to $10,733 and that she was entitled under Utah law and as the decedent's
surviving widow to recover this sum from the defendant executor who had in his possession
undistributed property of the value of over $35,000. She asked that such one third be set aside
to her. The trial court sustained a general demurrer and the widow appealed from the
dismissal of her application. The Supreme Court of Utah, through Frick, J., referred to the
Utah statute providing that one third in value of all the legal or equitable estates in real
property possessed by the husband at any time during marriage should be set apart to the
surviving wife and said: It will be observed that appellant * * * does not seek to recover her
alleged interest as the widow of John R. Park, deceased, in the specific real estate conveyed
by him, but she seeks to obtain the value of one-third thereof out of the property of the estate.
In other words, she seeks to recover the value of a one-third interest in a lump sum against
the estate of her deceased husband."
seeks to recover the value of a one-third interest in a lump sum against the estate of her
deceased husband. The court then traces the history of the law of dower in Utah and showing
the enlargement in 1898 from the former life estate in a one-third interest to an actual
one-third interest in value of his lands. The husband having conveyed prior to 1898, the court
says: All of them [the lands] were therefore conveyed while the wife was entitled to a life
estate only. Notwithstanding this fact, she seeks in this proceeding to recover the full value of
the interest in said lands given her under section 2826 (the statute creating the enlarged
interest). Whether or not she can legally recover this interest is the question to be
determined. (The opinion also determines the question of whether she can legally recover a
life estate in such interest.)
4. The court then commented upon the absence of any authority on the point. In language
peculiarly apt it said: As a matter of legal history of which we, in common with all courts,
take judicial knowledge, the law giving the wife an interest in her husband's lands has not
only existed in some form, either statutory or according to the common law, before and since
the formation of our government, but it has frequently been the subject of judicial inquiry in
this country in all of its phases for nearly if not quite two centuries. The fact, therefore, that
no adjudicated cases can be found upon the precise point involved in this case is a
circumstance from which an inference is permissible, more or less strong, that no one has
heretofore attempted to recover the wife's share in the lands of her deceased husband
conveyed by him during the marriage without her consent, out of his estate, instead of having
recourse to the lands so conveyed. While this fact may not be conclusive respecting her right
to do this, still it is a very important factor to be considered.
The Utah court then refers to the statutory provision for setting aside to the wife one-third
in value of all the legal or equitable estates * * *" and says: "This refers to the land itself
that was possessed by him during the marriage, not to any kind of property that may be
left by him at his death constituting his estate.
the legal or equitable estates * * * and says: This refers to the land itself that was possessed
by him during the marriage, not to any kind of property that may be left by him at his death
constituting his estate. * * * the wife, if she desires to recover her interest in her husband's
lands alienated by him during marriage, without her consent, must resort to the lands
themselves. * * * It must not be overlooked that the inchoate contingent interest of the wife in
her husband's lands is in the nature of an incumbrance which may or may not become an
absolute and enforceable right dependent upon the one fact that she survives her husband.
This incumbrance is against the land, and exists against each specific parcel while the right
remains inchoate. Neither is the right changed when it becomes vested and enforceable upon
the death of the husband, so that it may be shifted at the pleasure of the wife from one parcel
to another, or against one grantee, and not against another. The interest of the wife is in the
land itself to be apportioned to her one-third in value out of each parcel.
The court then holds that the Utah statute, comparable in all substantial respects to the
wife's right of dower enunciated in the English cases, did not confer upon the widow the
right to take the value of her interest in the husband's lands out of his estate. Appellant
insists that this case at best simply lays down the rule of law in Utah and cannot contradict
English law pleaded as a fact. As to the English law pleaded by appellant we have heretofore
commented at length. As to whether the fourth amended complaint states a cause of action,
we consider the Utah case not only in point but supported by reason. Appellant further
contends that the supreme court of Utah in McNeil v. McNeil, 61 Utah 141, 211 P. 988,
indicates doubt as to the fairness of its holding in the Park's Estate case. We do not find
such to be the case. If anything, In re Park's Estate applies a fortiori to our present problem,
for there the court had before it all necessary parties and the opportunity to apply the law of
the forum in whose jurisdiction the lands were situate and under whose statutes the rights
of the parties were asserted, and no question was raised as to the status of the plaintiff as
the surviving widow of the testator.
jurisdiction the lands were situate and under whose statutes the rights of the parties were
asserted, and no question was raised as to the status of the plaintiff as the surviving widow of
the testator.
5. The plaintiff has filed five different complaints. We find no abuse of discretion on the
part of the district court in sustaining the demurrer to the fourth amended complaint without
leave to amend and entering judgment for the defendant. Indeed, although the appellant
asserts error in the sustaining of the demurrer without leave to amend, she indicates clearly
that she does not desire to amend further, but prays for a reversal of the judgment with a
requirement that the defendant answer the fourth amended complaint. See Keenan v. Keenan,
40 Nev. 351, 360, 164 P. 351, 353.
The judgment is hereby affirmed with costs, but without prejudice to the right of the
plaintiff to commence an appropriate action in a court of competent jurisdiction in the
Dominion of Canada for enforcement of her asserted dower rights in real property there
situate.
Horsey, C. J., and Eather, J., concur.
____________
67 Nev. 74, 74 (1950) Shipman v. Watson
W. G. SHIPMAN, as Surviving Partner of the Former Partnership of C. R. SHIPMAN and
W. G. SHIPMAN, Doing Business as SHIPMAN BROTHERS TRANSFER COMPANY,
Petitioner, v. THE HONORABLE HARRY M. WATSON, as Judge of the Seventh Judicial
District Court of the State of Nevada, in and for the County of White Pine, Respondent.
No. 3580
February 7, 1950. 214 P.2d 155.
W. G. Shipman, as surviving partner of a former partnership doing business as Shipman
Brothers Transfer Company, brought a mandamus proceeding to compel Harry M. Watson, as
judge of the Seventh Judicial District Court in and for the County of White Pine, to settle
certain proposed statements as bills of exceptions.
The Supreme Court, McNamee, district judge, held that respondent judge properly refused
to settle, as bills of exceptions, documents narrating petitioner's version of trial court
proceedings, assigned as error, long after happening of events complained of, in absence of
showing that petitioner particularly stated exceptions to court's rulings complained of, either
by writing delivered to judge or by having them written down by court clerk, as required by
statute.
Petition for writ of mandate denied.
1. Exceptions, Bill of.
The transcript of trial court's proceedings, certified by court reporter, together with all other matters,
exhibits, motions, papers, or orders to be incorporated therein, may be served and filed, subject to
settlement, as bill of exceptions, or such bill, in alternative, may consist of point of exception particularly
stated, delivered to judge in writing, or written down by clerk, under statutes. N.C.L.1931-1941 Supp.,
secs. 9385.81, 9385.84.
A district judge properly refused to settle as bills of exceptions documents narrating complaining party's
version of trial court proceedings, assigned as error, long after happening of events complained of, in
absence of showing that such party particularly stated exceptions to court's rulings complained of, either
by writing delivered to judge or by having them written down by clerk, as required by
statutes. N.C.L.1931-1941 Supp., secs.
either by writing delivered to judge or by having them written down by clerk, as required by statutes.
N.C.L.1931-1941 Supp., secs. 9385.81, 9385.84.
Robert R. Gill, of Ely, for Petitioner.
Gray & Horton, of Ely, for Respondent.
OPINION
By the Court, McNamee, District Judge:
By this proceeding in mandamus the petitioner seeks to compel the trial court to settle
certain proposed statements as bills of exceptions.
After a jury trial resulting in a money judgment in favor of respondent, petitioner in proper
time served and filed three purported bills of exceptions. One consists of the reporter's official
transcript of the trial proceedings which requires no settlement by the court and with which
we are not now concerned. The other two are instruments in narrative form relating to orders
of the trial court made before and after the trial. The respondent moved to strike these last
two instruments. Their nature and the reason the trial judge refused to settle them as bills of
exceptions appear from the district judge's decision on the said motion to strike, which reads
in part as follows: Defendants having filed in addition to reporter's transcript two separate
purported bills for settlement, both in extended narrative form, and the matter having been
submitted on plaintiff's motion to strike the latter purported bills of exception.
And the Court giving consideration to the motion to strike as timely objections and
without passing on the propriety of such motion in proper case is of the opinion that such bills
of exception in narrative form, in such great detail, and bringing to the attention of the
Supreme Court only the party's version of the proceedings, rulings, objections and exceptions,
should, we think, be frowned upon, particularly in a reported case; even where party has
properly preserved his right to the alternative form of bill of exceptions, which is doubtful
here; and where by long history of practice in our State proper matters for consideration
of the Supreme Court, which are outside the judgment roll are, and we think should be,
brought to the attention of the Supreme Court in a bill of exceptions by certification of the
Clerk of the papers, orders and minutes which may properly be certified, and other
pertinent matters be brought to the attention of the Supreme Court briefly, concisely and
accurately, which by stipulation of counsel or by determination of Court might be signed
as a proper bill of exceptions, presenting for consideration motions, objections, rulings
and exceptions.
even where party has properly preserved his right to the alternative form of bill of exceptions,
which is doubtful here; and where by long history of practice in our State proper matters for
consideration of the Supreme Court, which are outside the judgment roll are, and we think
should be, brought to the attention of the Supreme Court in a bill of exceptions by
certification of the Clerk of the papers, orders and minutes which may properly be certified,
and other pertinent matters be brought to the attention of the Supreme Court briefly, concisely
and accurately, which by stipulation of counsel or by determination of Court might be signed
as a proper bill of exceptions, presenting for consideration motions, objections, rulings and
exceptions.
Feeling that the two purported bills of exception are not properly bills of exceptions in
view of the foregoing, and giving consideration to the motion to strike as objections thereto, it
is the Decision of the Court that we cannot settle and sign the same as a bill of exceptions.
The Nevada legislature by section 9385.81, Nevada Compiled Laws, Supplement
1931-1941 has provided in detail the manner of making up and preparing bills of exceptions.
1
1.

____________________

1
9385.81 Bill of Exceptions, How and When Filed. 31. At any time after the filing of the complaint and
not later than twenty (20) days after final judgment, or if a motion be made for a new trial, then within twenty
(20) days after service of written notice of the decision upon such motion, except as in subdivision (2) of this
section otherwise provided, any party to an action or proceeding may serve and file a bill of exceptions to such
judgment or any ruling, decision, order, or action of the court, which bill of exceptions shall be settled and
allowed by the judge or court, or by stipulation of the parties, by attaching thereto or inserting therein a
certificate or stipulation to the effect that such bill of exceptions is correct, contains the substance of the
proceedings relating to the point or points involved and has been settled and allowed, and when such bill of
exceptions has been so settled and allowed it shall become a part of the record in such action or proceeding.
Transcript of Proceedings may Constitute Bill of Exceptions. Bills of exceptions shall be made up and
prepared as follows, and not otherwise:
(1) A transcript of the proceedings, certified by the court
1. The transcript of proceedings certified by the court reporter together with all other
matters, exhibits, motions, papers, or orders, to be incorporated therein, may be served and
filed, subject to settlement, as a bill of exceptions. Or, as an alternative, a bill of exceptions
may consist of the point of exception particularly stated, delivered to the judge in writing or
written down by the clerk.
There is nothing in the statutes limiting the number of bills of exceptions a party may file,
but N.C.L.1931-1941 Supp., sec. 9385.84, expressly provides that bills of exceptions must be
prepared, served and filed as provided by the act relating thereto and not otherwise.
2. It is respondent's contention that the two proposed bills of exceptions in narrative form
have not been prepared according to the statutory requirements and that therefore his
action refusing to settle them, as bills of exceptions was proper.
____________________
reporter, appointed by the court, under authority of law, or by agreement of the parties, to be a full, true and
correct transcript thereof, may be served and filed, and when so filed shall be and constitute the bill of
exceptions of the proceedings relating to the point or points involved, as therein set forth, without further
stipulation or settlement by the court; provided, however, that on motion duly noticed, the court may at any time
correct any error in such transcript by appropriate amendment thereto. Transcript of the proceedings, certified by
the court reporter, as herein provided, together with all other matters, exhibits, motions, papers or orders,
required to be incorporated in a bill of exceptions, when so incorporated in the bill of exceptions, as herein
provided, and when such bill of exceptions has been so settled and allowed, as herein provided, it shall become a
part of the record in such action or proceeding.
When Record of Proceedings Shall Constitute Bill of Exceptions. (2) When the transcript of the
proceedings, as provided in subdivision (1) of this section, is not served and filed as the bill of exceptions of the
proceedings relating to the point or points involved upon such proceedings, then the bill of exceptions shall be
based and be prepared upon a record of the proceedings made up as follows:
(a) The point of the exception shall be particularly stated, and may be delivered in writing to the judge, or, if
the party require it, shall be written down by the clerk. When delivered in writing or written down by the clerk, it
shall be made conformable to the truth, or be at the time, or at or before the conclusion of the trial, corrected
until it is so made conformable to the truth. If the judge shall in any case refuse to allow an exception in
accordance with the facts, any party aggrieved thereby may petition the supreme court for leave to prove the
same, and shall have the right so to do, in such mode and manner and according to such regulations as
bills of exceptions in narrative form have not been prepared according to the statutory
requirements and that therefore his action refusing to settle them, as bills of exceptions was
proper. With this we agree.
These questioned documents narrate certain proceedings of the trial court which are
assigned as error, but nowhere does if appear that petitioner, as required by statute,
particularly stated his exception to the court's rulings complained of, either by a writing
delivered to the judge or by having them written down by the clerk.
The obvious purpose of such statutory requirement is to furnish the court an opportunity to
make the point of the exception conformable to the truth, some time during and before the
conclusion of the trial, and while the facts are fresh in mind.
____________________
the supreme court may by rules impose, and such exceptions as are allowed by said supreme court shall become
a part of the record of the cause.
(b) During the progress of an action or proceeding or cause a party may take his bill of exceptions to the
admission or exclusion of testimony, or to the rulings of the court or judge on points of law, and it shall not be
necessary to embody in such bill of exceptions anything more than sufficient facts to show the point and
pertinency of the exceptions taken. The presiding judge shall sign the same, within the time herein limited, as the
truth of the case may be.
(c) A statement of the case may be incorporated in, and made a part of such bill of exceptions; such
statement shall state specifically particular errors or grounds upon which the party intends to rely on upon the
appeal, and shall contain so much of the evidence as may be necessary to explain the particular errors or grounds
specified, and no more, and shall be served, by copy thereof, upon the adverse party, and the original filed with
the clerk.
(d) When the bill of exceptions of the proceedings, as provided for in subdivision (2) of this section, is used
instead of the bill of exceptions, as provided for in subdivision (1) of this section, and such bill of exceptions has
been settled and allowed by the judge or court, or by stipulation of the parties, as herein provided, the same,
together with other matters, exhibits, motions, papers or orders required to be incorporated in a bill of
exceptions, when so incorporated in the bill of exceptions, as herein provided, and when such bill of exceptions
has been so settled and allowed, it shall become a part of the record in such action or proceeding; provided,
however, that no party to any action or proceeding shall have the benefit or the right to present or use the form of
bills of exceptions, as authorized in subdivision (2) of this section, unless such party, in open court and before
the taking of any testimony, stated such intention and caused such statement of intention to be entered of record
in such action or proceeding by the clerk of the court.
of the exception conformable to the truth, some time during and before the conclusion of the
trial, and while the facts are fresh in mind. For counsel, intending to rely on the alternative
method of preparing a bill of exceptions, merely to object to or except to a ruling of the court
without giving any reason therefor and without stating the point of the objection with
particularity, or for him to remain silent after an adverse ruling, affords the court no
opportunity to make and preserve a true and complete record of that specific court's action
which might later be asserted as an assignment of error in a bill of exceptions prepared under
the said alternative method.
We conclude that the two documents offered to the trial judge for settlement as bills of
exceptions long after the happening of the events complained of, and consisting of
assignments of error based only on petitioner's version in narrative form of the proceedings
below, which at that late date could not, with any guarantee of certainty, be made complete
and accurate and in conformity with the truth, were not prepared, served and filed as provided
by law, and, therefore, it was not incumbent upon the trial judge to settle and sign the same as
bills of exceptions.
The petition for a writ of mandate is denied.
Eather, J., being absent on account of illness, the Governor commissioned Honorable
Frank McNamee, judge of the Eighth Judicial District, to act in his place.
On Petition For Rehearing
March 2, 1950.
Per Curiam:
Rehearing denied.
____________
67 Nev. 80, 80 (1950) Bowler v. Vannoy
MILTON A. BOWLER and MILTON D. BOWLER, Petitioners, v. RALPH J. VANNOY,
Sheriff of Churchill County, State of Nevada, Respondent.
No. 3598
February 10, 1950. 215 P.2d 248.
Milton A. Bowler and another brought an original proceeding for a writ of mandate
commanding Ralph J. Vannoy, sheriff of Churchill County, to return to petitioners cattle
seized and removed from their ranch by respondent or to show cause for his failure to do so.
The Supreme Court, Horsey, C. J., held that respondent was not legally justified in taking
and removing the cattle on levy of execution to satisfy a judgment for plaintiff in an action to
which petitioners were not parties, without requiring plaintiff to furnish an indemnity bond
after filing of petitioners' third-party claim, and that mandamus was the proper remedy.
Ordered that respondent return the cattle to petitioners and that an alternative writ
of mandate be made permanent.
1. Mandamus.
Evidence showed that 15 of 41 dairy cows, seized on and removed from ranch by sheriff in levying
execution on judgment for plaintiff in divorced wife's action, to which ranch owners were not parties, for
recovery of 41 cows sold by husband before entry of divorce decree awarding them to wife, were lawfully
acquired by such owners separately from cows awarded wife, so that sheriff's seizure and removal of such
15 cows were wrongful and constituted conversion.
2. Evidence.
Evidence failed to show that 26 cows, seized on and removed from ranch by sheriff in levying execution
on judgment for plaintiff in divorced wife's action, to which ranch owners were not parties, for recovery of
41 cows sold by husband before entry of divorce decree awarding them to wife, were sufficiently identified
as part of herd described in judgment.
3. Sales.
The fact that cattle, of which there had been legitimate bona fide sale, had not been paid for by buyers,
did not prevent passage of equitable title thereto, whether or not bill of sale, placed in escrow, had actually
been delivered to buyers and legal title effected.
4. Fraudulent Conveyances.
Buyers of cattle are presumed to have taken possession thereof lawfully and rightfully, in absence of
showing that sale was other than bona fide genuine transaction, unaffected by buyers' knowledge of any
connivance, conspiracy, fraud or other improper or tortious action to detriment of one claiming title to
cattle under judgment against seller and his predecessors in title thereto.
5. Sales.
A buyer, vested rightfully with possession and right to possession of property purchased, must be deemed
an innocent third person, who has given value for property, is without notice of any prior equities as to
which he owes any duty, and has acted in good faith, until contrary appears and is judicially determined.
6. Evidence.
Under common law and equity principles, conduct involving human relationships and transactions must
be presumed rightful rather than wrongful, at least until contrary clearly appears.
7. Execution.
A sheriff, levying execution on judgment for return to divorced wife of cattle sold by her husband before
entry of divorce decree awarding them to her, was not justified in taking cattle on, and removing them
from, ranch owned by third party claimants, who were not parties to action in which judgment was
rendered.
8. Execution.
An execution cannot be properly levied on property of third person or stranger to proceedings, who has
right to immediate possession of property and is not required to assert or file third party claim thereto.
9. Sheriffs and Constables.
A sheriff, retaining possession of property, levied on by him under execution, after notice to him that
third party claimant, in possession of property, asserts ownership thereof, is liable to true owner in trespass
or trover.
10. Sheriffs and Constables.
Damages resulting from sheriff's conversion of cattle, levied on under execution on judgment against
others than owners of ranch from which cattle were removed, were not waived, nor was actual conversion
stayed, from date of levy until filing and service of such owners' third party claim four days later as such
claim was not required to establish cause of action for damages in first instance, but such cause of action,
which already existed, continued until action was filed and proved, judgment was granted or action was
dismissed or barred by statute of limitations, sufficient sureties justified, and indemnity bond, required by
sheriff, was approved. N.C.L.1931-1941 Supp., sec. 8708.01.
11. Execution.
Where sheriff, levying execution on cattle owned by others than execution plaintiff, did not demand, nor
plaintiff furnish, indemnity bond, sheriff was required to release cattle to owners in accordance with third
party claim filed by them. N.C.L 1931-1941 Supp., sec. 8708.01.
12. AttachmentSheriffs and Constables.
The statute requiring sheriff to release property, levied on under writ of attachment, to third party
claimant thereof, if attachment plaintiff fails to give sheriff an undertaking, with sufficient sureties, for
double value of property, within five days after written demand therefor, requires written demand by sheriff
on plaintiff in either attachment or execution for such undertaking; terms writ of execution and writ of
attachment being interchangeable under Civil Practice Act, N.C.L.1931-1941 Supp., sec. 8708.01.
13. Execution.
The fact that execution plaintiff was advised by her attorneys and others to cause removal of cattle by
sheriff, levying thereon, from ranch of persons who were not parties to action wherein judgment on which
execution issued was rendered, and delivery thereof to plaintiff before filing of ranch owners' third party
claim to cattle, did not absolve sheriff or plaintiff from obligation to return cattle to claimants at such
ranch, in absence of demand by sheriff for, or filing of, indemnity bond with him by plaintiff.
N.C.L.1931-1941 Supp., sec. 8708.01.
14. Mandamus.
Mandamus to compel sheriff to return to petitioners, at their ranch, cattle wrongfully removed therefrom
by sheriff in levying execution on judgment against others than petitioners in action to which they were not
parties, was proper remedy, as other remedies in ordinary course of law, such as claim and delivery action,
would not be speedy and adequate. N.C.L. 1929, sec. 9243.
15. Courts.
A district judge's dismissal of petition for writ of mandate, commanding sheriff to return to petitioners
cattle wrongfully removed by him from their ranch in levying execution on judgment against others, did not
preclude petitioners from petitioning supreme court justices for such a writ under principle of res judicata.
16. Courts.
The supreme court should follow its former decisions, unless plainly erroneous.
17. Mandamus.
The remedy by mandamus is not necessarily superseded because an action or other proceeding will lie,
but to bar such remedy, relator must have another remedy which is not only specific, adequate and legal,
but competent to afford relief on very subject matter of application for writ of mandate, which should
issue if it be doubtful whether such action or other proceeding will afford relator
complete remedy.
should issue if it be doubtful whether such action or other proceeding will afford relator complete remedy.
18. Courts.
An action for damages because of sheriff's wrongful removal of cattle from their owners' ranch in levying
execution on judgment against others may be brought and proceeded with in another court or tribunal than
supreme court, instead of seeking recovery of damages in original mandamus proceeding therein to compel
return of cattle to such owners, in view of demarcation between functions of trial courts and supreme court.
N.C.L.1929, sec. 9247.
19. Mandamus.
In mandamus proceeding to compel sheriff to return to petitioners cattle wrongfully removed from
petitioners' ranch in levying execution on judgment against others, court will not determine title to cattle as
between petitioners and execution plaintiff, nor question whether parties acted rightfully or wrongfully,
honestly or fraudulently; purpose of mandamus proceeding being merely to restore status quo.
Morley Griswold and George L. Vargas, both of Reno, for Petitioners.
John S. Sinai, of Renoi and Andrew L. Haight, of Fallon, for Respondent.
OPINION
By the Court, Horsey, C. J.:
In the above-entitled proceeding, the petitioners, Milton A. Bowler and Milton D. Bowler,
by their attorneys, the Honorable Morley Griswold and the Honorable George L. Vargas, on
the 8th day of December, 1949, presented informally to the justices of this court a petition for
writ of mandate.
Such petition, together with the matters of fact and law alleged therein and the argument
presented on behalf of said attorney George L. Vargas for petitioners disclosed sufficient
cause to justify such an alternative writ to be issued in the premises.
Accordingly, the petition aforesaid was by the undersigned chief justice, concurred in by
the honorable associate justices, ordered to be filed, and such alternative writ of mandate to
be issued on said Sth day of December, 1949.
writ of mandate to be issued on said 8th day of December, 1949.
On December 12, 1949, the alternative writ of mandate ordered and issued as aforesaid, on
December 8, 1949, was duly filed and is as follows:
The State of Nevada to Ralph J. Vannoy, Sheriff of Churchill County, Nevada, Greetings:
Whereas, it manifestly appears by the verified petition of Milton A. Bowler and Milton
D. Bowler, the petitioners beneficially interested herein, that on the 21st day of October,
1949, you, the said Sheriff, went upon the ranch and premises of the petitioners and after
notice by said petitioners and others that said petitioners owned the dairy cattle and bulls
thereon, you did willfully and unlawfully seize, take possession of, and remove, or cause to
be seized, taken possession of and removed, forty-one (41) head of dairy cattle and one (1)
bull from the said premises of the petitioners; that thereafter, and on or about the 25th day of
October, 1949, said petitioners, Milton A. Bowler and Milton D. Bowler, by their written
claim verified by oath and served upon you, the said Sheriff, claimed the said forty-one (41)
head of dairy cattle and one (1) bull as their property; that no undertaking whatsoever was
filed within five (5) days after said written demand was given to you, the said Sheriff, in order
that you might hold said property; that notwithstanding the failure of any person to give said
undertaking, you wholly failed and refused to release the said forty-one (41) head of dairy
cattle and one (1) bull to the petitioners; that no application or petition was filed for any
hearing to determine title to the said cattle and said bull in question within ten (10) days after
the said third party verified written claim had been served upon you; that, on or about
November 2, 1949, the petitioners served upon you an additional notice and demand for the
immediate return of all of said property and for their damages, and that you have wholly and
completely failed to return said property or account therefor, or account in damages in
connection therewith, and that there is not a plain, speedy and adequate remedy in the
ordinary course of law; and
in connection therewith, and that there is not a plain, speedy and adequate remedy in the
ordinary course of law; and
Whereas, by an order of this Court duly given, made and entered in the above-entitled
action on the 8th day of December, 1949, it was ordered that an Alternative Writ of Mandate
should issue to you;
Therefore, it is hereby commanded that you immediately after the receipt of this Writ,
forthwith return to the said petitioners, Milton A. Bowler and Milton D. Bowler, at their
premises, the Bowler Ranch in Churchill County, Nevada, from which ranch you seized, took
and removed, or caused to be seized, taken and removed, forty-one (41) head of dairy cattle
and one (1) bull, on October 21, 1949, the said cattle and said bull which you then and there
seized, took possession of and removed or caused to be seized, taken possession of or
removed, together with any offspring thereof born from or after said October 21, 1949, or that
you show cause, if any you have, before this Court in the Courtroom of the Supreme Court of
the State of Nevada, in Carson City, Nevada, on the 22nd day of December, 1949, at the hour
of ten o'clock A. M. of said day, why you have not done so.
The respondent, Ralph J. Vannoy, sheriff of Churchill County, State of Nevada, pursuant
to said alternative writ, having failed to return forthwith to the said petitioners, Milton A.
Bowler and Milton D. Bowler, at their premises, namely, the Bowler Ranch in Churchill
County, Nevada, the forty-one (41) head of dairy cattle and one Holstein bull, and which,
pursuant to said alternative writ the said sheriff was commanded to do, before this court in the
courtroom of the supreme court of the state, in Carson City, Nevada, on the 22d day of
December, 1949, at the hour of ten o'clock a. m. of said day, or to show cause why he had not
done so, the said respondent sheriff then and there appeared, and in open court made his
answer and return to such alternative writ and petition herein. The order to show cause was
proceeded with and immediately thereafter, John S. Sinai Esq., attorney for the
respondent sheriff, assuming the affirmative, pursuant to such order to show cause, and
George L. Vargas, Esq., attorney for the petitioners in opposition thereto, proceeded with
their respective arguments, and in connection therewith upon such hearing before this
court, certain briefs or points and authorities were by the said attorneys for the respective
parties permitted to be filed, and same have been duly considered.
with and immediately thereafter, John S. Sinai Esq., attorney for the respondent sheriff,
assuming the affirmative, pursuant to such order to show cause, and George L. Vargas, Esq.,
attorney for the petitioners in opposition thereto, proceeded with their respective arguments,
and in connection therewith upon such hearing before this court, certain briefs or points and
authorities were by the said attorneys for the respective parties permitted to be filed, and same
have been duly considered. Indeed, we feel abundantly able to state that the respective
attorneys in this proceeding have, doubtless laboriously, and certainly with diligence and
much careful research, produced and presented their respective arguments both written and
oral.
At the hearing upon the order to show cause, in this court, on December 22, 1949, the
court upon the presentation and filing of respondent's answer and return, and of respondent's
Notice of Motion and Motion to Quash and Dismiss Alternative Writ, and in connection
therewith the chief justice had not then had time or opportunity carefully to read such motion
before the arguments, and upon ruling in connection with an objection by Mr. Vargas,
attorney for petitioners, to the effect that the transcript should not be deemed to include the
evidence in the instant proceeding in this court upon mandamus, and the chief justice having
in mind and believing counsel was referring to the proceeding in First judicial district court of
the State of Nevada, in and for the county of Churchill, No. 4110 and not to the mandamus
proceeding No. 4272 in that court, and that such transcript was voluminous and referred to
the trial in the lower court in said former action No. 4110, and was beyond the proper scope
of such motion to quash in the instant proceeding, so ruled. The chief justice has since
ascertained that he was mistaken in believing the reference was to No. 4110, and that the
objection actually related to No. 4272, the proceeding upon mandamus in Judge Guild's court.
It is ordered, therefore, that said ruling as to such objection be and the same is stricken,
and instead that the said objection be and is overruled, for the reason that the transcript
referred to in the mandamus proceeding in relation to No.
objection be and the same is stricken, and instead that the said objection be and is overruled,
for the reason that the transcript referred to in the mandamus proceeding in relation to No.
4272, and which has since been permitted to be filed, contains important matters of evidence
which, it is believed, may well be of value in the instant proceeding. This is not said in order
that the action of the district court, in that mandamus proceeding may in any manner change
or affect or have any bearing upon any action there taken, but is solely for the purpose of
considering and acting upon the instant mandamus proceeding No. 3598 in this court (and
which we view as being entirely a separate and independent proceeding), so that the facts
which it is believed are authentic, may possibly make clearer than might otherwise appear, the
factual and legal situations involved, to the end that correct determinations may be
accomplished.
It appears from the record of this instant mandamus proceeding No. 3598 that in the said
action in the First judicial district court, in and for the county of Churchill, designated as No.
4110, Stella B. Leonard Belanger, was plaintiff therein, and David J. Belanger, H. M.
Childers and Vincent Vrenon, individually and doing business under the name and style of
Modern Dairy, were defendants. It further appears herein that prior to the action No. 4110, a
prior action No. 4095 in the same district court had occurred, and in which Stella B. Leonard
Belanger, plaintiff therein, had been awarded decree of divorce from her husband, David A.
Belanger, the defendant in that action, and that in said action the said Stella B. Leonard
Belanger had been decreed to be the sole owner of certain cattle and that said cattle consisted
of forty-one (41) head of dairy cows and one Holstein bull.
And in No. 4110, it appears in effect from the judgment therein that Stella B. Leonard
Belanger had not succeeded in obtaining the possession of said cattle, for the reason that
David J. Belanger had purported to sell same to one H. M. Childers, on July 31, 1948,
together with all increase born thereto andJor substitutions made therein by either or both
of said defendants, H. M. Childers and Vincent Vrenon, and it further appears, in effect,
from said judgment that said H. M. Childers, on September 10, 194S, had purported to sell
same to said Vincent Vrenon.
with all increase born thereto and/or substitutions made therein by either or both of said
defendants, H. M. Childers and Vincent Vrenon, and it further appears, in effect, from said
judgment that said H. M. Childers, on September 10, 1948, had purported to sell same to said
Vincent Vrenon. Conversely, the order, judgment and decree provided, in effect, that Vincent
Vrenon return to defendant H. M. Childers the identical forty-one (41) head of milk cows and
the two (2) bulls which said Vrenon purported to purchase from the said Childers, on said
September 10, 1948, together with all increase born thereto and/or substitutions made therein,
and that defendant H. M. Childers deliver and surrender to the plaintiff in Churchill County,
Nevada, the identical forty-one (41) head of milk cows and two (2) bulls, which defendant H.
M. Childers purported to purchase from the defendant David J. Belanger, on July 31, 1948,
with any and all increase born thereto and/or substitutions made therein, by either or both of
defendants, H. M. Childers and Vincent Vrenon. The testimony, copy of which was, on
January 3, 1950, filed in this court, and which was heard before the Honorable Clark J. Guild,
district judge, on the 22d day of November, 1949, in the matter then before that court
petitioning by the petitioners therein, for a writ of mandate, appears, in part, as follows:
R. J. Vannoy, sheriff of Churchill County, Nevada, appearing and sworn as an adverse
witness therein, testified in effect that, the said Vannoy, on the 21st day of October, 1949, on
that day went upon the premises of Milton A. Bowler in Churchill County, Nevada, and that
he was taken there by Vincent Vrenon and that they were there together; that others were
there while he, Vannoy, was there, on the said premises, including Stella B. Leonard
Belanger, Mr. Coleman, Mrs. Stroup, Pete Burgess, and the Springer boy, Milton Springer, he
believed was his first name, and one other gentleman whose name witness did not recall; he
presumed Mr. Coleman was an attorney at law with Mr. Sinai. Sheriff Vannoy, continuing,
stated, "I would like to explain what occurred there before I went there; why I went
there; what took me there.
Vannoy, continuing, stated, I would like to explain what occurred there before I went there;
why I went there; what took me there. * * * I received from Mr. Coleman which was a writ
of execution, a judgment and an instruction from the attorney and I read the papers. I went
down to see Mr. Vrenon at the Modern Dairy. Showed him the papers. * * * had with him a
writ of execution and instructions. * * * came back to my office, from there went down to
Vrenon's the second time and Mr. Vrenon took me out to Bowler's Ranch. He went in his car
and I went in mine but he led me the way out voluntarily. The witness said, in effect, that he
had the writ in his possession when he went upon the premises of Bowler, that he saw Milton
A. Bowler and Milton D. Bowler at their premises when he went there on the 21st day of
October, 1949that Mr. Vrenon pointed them out to him, that he didn't know them before.
The witness further stated: Mr. Vrenon was with me. Stated the cattle were on the Bowler
Ranch. * * * Mr. Bowler was present * * * Mr. Bowler also said they were therethey
were right out there * * *. He said, they are right out there. He said, you can see some of
them now. There is the bull. When I said I had a writ giving those cattle to Mrs. Leonard and
Mr. Bowler says, they are there in the field.'
Continuing, Mr. Vannoy further testified: Mr. Bowler says, May I go in and use the
telephone'? I said certainly, I have no objection to what you do, Mr. Bowler. I have no quarrel
with you or anybody else over any cattle. * * * Mr. Bowler said they could drive the cattle
in the corral there. He didn't have any loading (chute). They could drive them in the barn and
load them in the gate. They had a truck that had an ingate that would drop down.
Mr. Vargas, then questioning, asked Mr. Vannoy:
Q. As a matter of fact, Mr. Vannoy, at the time that you went out to Bowler's Ranch on
the morning of October 21st, 1949, to demand possession of these cattle, didn't you ask Mr.
didn't you ask Mr. Bowler to point out the cattle? A. He pointed them out voluntarily. I didn't
ask him anything.
Q. You did not ask him to point them out? A. No, sir.
Q. As a matter of fact, Mr. Vannoy, did not Mr. Bowler say to you in substance, I am not
going to point out any cattle. I own them all. They are all mine?' A. No sir, not at that time.
(Italics ours.)
Q. When did he make such a statement if not at that time? A. Perhaps later or something
to that effect. He talked to another party.
Q. How much later? A. Mr. Bowler was very cooperative to start with.
Q. Tell what occurred at the Bowler premises on the 21st day of October. A. Mr.
Coleman,can I talk fully on this?
Q. Any statements made in the presence of Mr. Bowler you may state. A. That's what I
want.
Court: Just a minute. If Bowler or either one of them were present you can state the
conversation. A. Mr. Bowler was present. Mr. Coleman asked Mr. Bowler if he would
cooperate with him in getting these original forty-one head of cattle and two bulls. Mr.
Bowler stated one bull had died and we said, We will concede that.' Mr. Coleman told Mr.
Bowler in my presence and Mrs. Leonard's presence that We will not touch any cattle or cow
on this place that you say you have acquired from any other source. We only want these
original cattle.' He says, if you will just point out any one we will not touch it.' Mr. Bowler
refused to do that. * * *
Mr. Vargas: Q. Now on that day there was loaded and removed from the premises of Mr.
Milton Bowler forty-one head of dairy cows, were there not? A. Yes.
Q. And one Holstein bull? A. Yes. May I explain a little further there?
Court: Yes. A. Mr. Bowler and his son knowingly and willingly let them haul those
fifteen cattle away and I told him not to. He said, Let them go. We'll see about it later,' and
I says, 'It is your responsibility, not mine.' He says, "I refuse to let you tell Mr.
about it later,' and I says, It is your responsibility, not mine.' He says, I refuse to let you tell
Mr. Coleman.' Regardless of what he tells you now that's the exact truth.
Mr. Vargas: Q. As a matter of fact, Mr. Vannoy, after these cattle had been loaded, did
not Mr. Bowler at that point point out fifteen head of cattle and advise you that they had never
had any history in the Belanger litigation? A. Yes. And I said, Let's get them.' And he didn't
take them and he says, No, let them go.'
Q. You say at that time you were willing to take those cattle off of the truck? A.
Certainly, Mr. Coleman was willing to take them off. He didn't want to touch anything, only
the original cattle.
Q. Mr. Bowler said, No, you go ahead and take those too'? A. He said, let them go. He
can do anything'he saysI know what he said and he further said, The rest of her cattle
are out there in the field. She couldn't find them.' He says, Twenty-six, and the bull are OK
and the rest of hers are out in the field.'
It appears further from Mr. Vannoy's testimony, that the third-party claim was served upon
him, Mr. Vannoy, on October 25, 1949, and that he turned it over to the attorneys for the
plaintiff (Mrs. Leonard) and that her attorneys were Mr. Sinai, Mr. Haight, and Mr. Coleman.
Mr. Vargas asked whether Mr. Vannoy demanded of the plaintiff or her attorneys that they
post a bond in connection with that third-party claim, and Mr. Vannoy stated, I told
themthat's what I asked for.
Q. That demand likewise was made on them on that same day, October 25, 1949? A.
Well, I was of the opinion that I didn't have any cattle, title was taken by Mrs. Leonard, not
me.
Asked by Mr. Vargas, whether he, Mr. Vannoy, had requested a bond the witness
answered, No, I did not. I gave them the papers.
Q. (By Mr. Vargas) Did the plaintiff in that action, Stella Leonard Belanger ever serve
you with an undertaking executed by two sureties in a sum equaldouble the value of these
cattle as alleged in that third party claim? A. No.
the value of these cattle as alleged in that third party claim? A. No.
Q. Do you know where these cattle are at the present time? A. Yes, sir.
Q. Where are they? A. Over in Mrs. Leonard's ranch at Hazen.
Q. And that is in Churchill County, Nevada? A. Yes, sir.
1. In connection with such third-party claim, signed by Milton A. Bowler and Milton D.
Bowler, third-party claimants, October 25, 1949, and served upon Sheriff Vannoy on said
last-mentioned date, and a copy of which is attached to said Petition for Writ of Mandate,
filed in this court December 12, 1949, the Bowlers in their said third-party claim stated the
particulars in regard to fifteen head of said cattle, showing in detail the several transactions
mentioned as to the months in 1947 and 1949 in which the dairy cows were purchased by the
Bowlers, the number of cattle involved in each transaction, and from whom they were
purchased, and the several bills of sale from the respective sellers and received to the
Bowlers, who were the purchasers.
It appears from the testimony that as to the fifteen head of dairy cows there can be no
doubt that they had been lawfully acquired by the Bowlers, without relation to and separate
and apart from the Belanger cattle, so-called, and that the twenty-six head of the other dairy
cows and the Holstein bull had been purchased from Vincent Vrenon, together with other
cattle, who had executed to the Bowlers a bill of sale therefor.
Mr. Vannoy said, in effect, in his testimony that Mr. Bowler said, The rest of her cattle
are out in the field. Then Vannoy further said, She couldn't find them. (Meaning that Mrs.
Leonard could not find them.) He (Bowler) says, Twenty-six, and the bull are OK and the
rest of hers are out in the field.'
It is acknowledged, therefore, by Mr. Vannoy in his testimony, in effect, that the fifteen
head of such dairy cattle were unquestionably the cattle belonging to the Bowlers, and were
carelessly, or at least mistakenly, taken and loaded for transportation, and shortly
thereafter, removed from said premises of the Bowlers.
Bowlers, and were carelessly, or at least mistakenly, taken and loaded for transportation, and
shortly thereafter, removed from said premises of the Bowlers. Ostensibly, upon the alleged
basis of the said writ of execution, issued on said 21st day of October, 1949, upon neither of
which the writ of execution, nor the judgment purported to be against the Bowlers, neither the
judgment nor the execution purported to include Milton A. Bowler and/or Milton D. Bowler,
nor were they, or either of them, even mentioned therein. It would appear that Mrs. Leonard
could not identify fifteen of such dairy cows, and that she, and perhaps Mr. Coleman acting
for her, and doubtless assisting in gathering and loading the cattle, decided to substitute other
cattle for those she could not find, and, in any event, to make sure of taking and loading what
they claimed to constitute twenty-six head of the dairy cows and the Holstein bull, and
another fifteen head, to make sure they had enough to make up the total of forty-one head of
dairy cows and the Holstein bull. (Apparently the other bull died, according to Mr. Vannoy's
testimony.)
Mr. Vannoy's testimony would seem to indicate that both he and Mr. Coleman were ready,
almost eager, to return the fifteen head belonging to the Bowlers, but that Mr. Bowler waved
Mr. Vannoy aside and repeatedly said, No, let them go. We'll see about it later * * *. And
Mr. Vannoy said, Let's get them. And he didn't take them and he says, No, let them go.'
It may have been that Mr. Bowler, who claimed the right to fifteen head of cattle, and
which were clearly his, and had claimed all of the cattle, and refused to make any segregation
or to acknowledge any right on the part of Mrs. Leonard to the other twenty-six head, felt
perturbed, and no doubt annoyed and aggravated by the actions of the sheriff, and his
assistants, and told Vannoy not to protest against loading the cattle, or removing them, his
idea, perhaps, being that he meant by the words, We'll see about it later, to imply that the
Bowlers could by legal action find vindication.
On the contrary, Mr. Bowler, in his testimony upon the same day in the mandamus
proceeding before the Honorable Clark J. Guild, district judge, positively denied that he had
made such statement. It appeared that to do so would seem to have been against Bowler's own
interest, and it is unreasonable to believe, it would seem, in view of all that had occurred, that
Bowler would have indulged in a sort of parody or comic-opera arrangement not unlike that
in which Dear Alphonse with great courtesy and profuse gallantry said, You go first, my
dear Alphonse, and Mr. Gaston said, No, I would not go before you my dear Alphonse, you
go first.
As to the fifteen head of cattle there is, in this court's view, not the slightest doubt that said
fifteen head of dairy cows should not have been taken, loaded and removed by Sheriff
Vannoy, from the premises of the Bowler Ranch, near Fallon, in Churchill County, Nevada,
and that the action taken by Sheriff Vannoy, under the instructions of Mr. Sinai, attorney for
respondent, were entirely without right or justification, and constituted the conversion of such
fifteen head of dairy cattle.
What should we say as to the so-called Belanger cattle, being forty-one (41) head of
dairy cattle and one Holstein bull which were taken from the Bowler Ranch, by Sheriff
Vannoy, under the said writ of execution issued October 21, 1949, and pursuant to and based
upon the said judgment ordered to be entered in the First judicial district court, in and for the
county of Churchill, and filed as aforesaid on said last named date in the clerk's office of said
court, in action No. 4110?
It is our view, that necessarily, in this mandamus proceeding in this court No. 3598 the
facts must be largely predicated upon the papers, documents and files herein, including the
testimony taken before Judge Guild in the mandamus proceeding in the First judicial district
court of the State of Nevada, in and for the county of Churchill, commencing on November
22, 1949.
2. From the facts elicited from the testimony it appears that as to the twenty-six head of
cattle, actually levied upon by the said execution on October 21, 1949 and taken and
removed by Sheriff Vannoy from the Bowler Ranch premises, such cattle may, or may not,
have been the identical cattle originally owned by David J.
appears that as to the twenty-six head of cattle, actually levied upon by the said execution on
October 21, 1949 and taken and removed by Sheriff Vannoy from the Bowler Ranch
premises, such cattle may, or may not, have been the identical cattle originally owned by
David J. Belanger and Stella B. Leonard Belanger, or either of them.
Because of the judgment and execution No. 4110, we must assume as to that action,
although same has been appealed to this court, and we are not at liberty to determine or pass
upon any phase or part of it until same is actually before us, that such action cannot be
deemed to have any effect as to other parties not included in that action, nor made parties
thereto. This applies particularly to Milton A. Bowler and Milton D. Bowler.
One of the questions, therefore, which we must consider in this mandamus proceeding No.
3598 is as to whether or not the twenty-six head of dairy cows taken, loaded and removed
from the Bowler Ranch, October 21, 1949, under such writ of execution levied by Sheriff
Vannoy, were sufficiently identified as being the herd of dairy cattle known generally as the
Belanger cattle. It is doubtful whether any of the persons present when the cattle were
seized upon execution by Sheriff Vannoy, took pains or care to determine positively and with
certainty whether as to each of such dairy cows, such persons could or did state that they, or
either of them, were certain of their identification.
Mr. Vrenon claimed, by the sweep of the hand, that the Belanger cattle were there, and
were owned by him, Vrenon, because he had transferred them to the Bowlers, and had not
been paid. The latter question we will refer to further on in this opinion, but upon the
question of identification may we say that Mr. Vrenon undertook to point out, by brand,
earmarks, specific description, or otherwise, as to any particular dairy cow, that he had
accurately checked sufficiently to state that he had identified it? We find nothing from the
record that he had done so. Mrs. Stella Leonard attempted to check as to the entire
forty-one {41) head of dairy cattle, but Mr.
attempted to check as to the entire forty-one (41) head of dairy cattle, but Mr. Vannoy
acknowledged that she had not been able to find fifteen of them. Instead of actual
identification, she had apparently made a general guess as to a herd of cattle that should be
found upon the Bowler Ranch, and should be deemed, generally, to be of the kind and
character that formerly were a part of the Belanger cattle. Certainly, Mr. Coleman had no
actual knowledge which would enable him, with certainty and particularity to establish proper
identification. Sheriff Vannoy, whose duty it was to make a minute and detailed inspection as
to each of such dairy cattle, in order to obey the law and protect the rights of the adverse
interests involved, seemed merely to allege generally as to the supervision and removal of the
cattle, but we fail to find that he actually made any particular inspection such as to justify him
in stating that he had made any really careful, painstaking and diligent determination such as
to be certain of sufficient identification as to each of such cattle.
The next question to be considered is as to whether or not, the respondent Vannoy,
notwithstanding the fact that the Bowlers upon their ranch in said premises were in actual
possession of such dairy cattle, with the right of possession, and claim of ownership thereof,
was rightfully or wrongfully entitled to take such possession and to seize and remove such
cattle from said premises by reason of the fact that Stella B. Leonard, formerly known as
Stella B. Leonard Belanger, had caused to be placed in his hands a writ of execution, dated
October 21, 1949, and predicated upon a judgment in which it was, in effect, alleged that
certain cattle alleged to have been the identical cattle comprising a herd of forty-one head of
dairy cows and one Holstein bull had been adjudged to have been Stella Leonard's cattle?
And did Sheriff Vannoy, or the plaintiff, Stella B. Leonard as she appeared in the court
below in case No. 4110, or her attorneys, have any lawful right or justification to cause such
cattle to be seized and removed notwithstanding that neither of the Bowlers were in any
respect parties to such action No.
notwithstanding that neither of the Bowlers were in any respect parties to such action No.
4110, nor had they been served with any legal process as to said execution, or as to such
judgment?
3-5. According to the testimony before us, Mr. Vrenon testified, in effect, that some time
long prior to the 21st day of October, 1949, upon which both said judgment and said
execution were filed in case No. 4110, and which, according to Bowler's testimony, was at a
time early in the month of August, 1948, and which was undisputed, a transaction occurred
between Milton A. Bowler (and perhaps both the Bowlers) in which they purchased said
Belanger cattle. The Bowlers and Vrenon acted upon the basis of an agreement of purchase
and sale, whether oral or written, does not appear, but, at least, a written bill of sale was
executed by Vrenon and placed in escrow. From the testimony it is apparent that by
agreement of both Vrenon and Milton A. Bowler, the cattle were delivered to the Bowlers
and placed in their possession and upon the said Bowler Ranch. It appears further that Vrenon
did not receive from H. M. Childers, a bill of sale to said cattle until September 10, 1948, but
most likely an agreement written or oral had occurred between Childers and Vrenon prior to
the execution of the actual bill of sale, as there is no indication shown from the testimony that
some suitable agreement or arrangement had not occurred between them prior to the
transaction between Vrenon and the Bowlers early in August, 1948, nor that the Bowlers
were not authorized to take over from them the cattle which had been taken over by Vrenon
from Childers. There is nothing which appears that the transaction was other than a
legitimate, bona fide transaction. Indeed, the fact that Vrenon in his testimony claimed the
ownership of the cattle because, as he claimed, they had not been paid for by the Bowlers and
that he apparently considered they belonged to him was merely his own conception of the
transaction. Under such circumstances, the matter of payment would not prevent the
equitable title to the cattle passing from Vrenon to the Bowlers, whether or not the bill of
sale, so placed in escrow, had actually been delivered and legal title effected.
prevent the equitable title to the cattle passing from Vrenon to the Bowlers, whether or not
the bill of sale, so placed in escrow, had actually been delivered and legal title effected. Other
factors such as the question as to whether or not time was made of the essence of the
agreement, would doubtless be involved, dependent upon the terms of the agreement, and
whether written or oral. The relationship of Vrenon on the one hand and of Bowlers upon the
other, in case of disagreement might bring litigation as between them, but not necessarily as
to others, such as Belanger or the former Mrs. Belanger, now Mrs. Leonard, or Childers.
From aught that appears from the evidence, the transaction involved was one entirely between
Vrenon and the Bowlers, and there being nothing apparently in the record to disclose that the
transaction was other than a bona fide, genuine transaction, unaffected by a knowledge on the
part of the Bowlers of any connivance, conspiracy, fraud or other improper or tortious action
to the detriment of Stella B. Leonard, formerly known as Stella B. Leonard Belanger, as to the
transfer of said Belanger cattle, so-called, the well-settled legal presumption was, as to the
said transaction, that the Bowlers, in taking into their possession, the said forty-one head of
dairy cattle and the one Holstein bull, did so lawfully and rightfully, and not unlawfully and
wrongfully. One acting in such a transaction, who has become vested rightfully with the
possession and right of possession of property, must be deemed to have the right, until the
contrary appears and is judicially determined, to the very high position of an innocent third
person who has given value for the property received, and is without notice of any prior
equity or equities as to which he owes any duty, and that he has acted in good faith.
6. Under civilized conditions such as we enjoy in the United States of America, under the
enlightened principles of common law and equity, actions and conduct involving human
relationships and transactions, must be presumed to be rightful rather than wrongful, at least
until the contrary clearly appears.
until the contrary clearly appears. If that were not so, the individual person could not be
reasonably secure in the enjoyment of his property. Without the right to be heard, nor without
any suit at law or equity or any proceedings having been filed against him of which he has
been given notice, his property could thus be easily confiscated. But because of such civilized
principles, beneficent and necessary in their application, the great constitutional provisions,
such as the right to life, liberty or property, must not be violated, but on the contrary must be
carefully and sedulously preserved.
7. So, in the instant proceeding in case No. 4598, and in view of the record before us in
this mandamus proceeding, we do not find as to the Bowlers any sound legal basis upon
which Sheriff Vannoy was justified in taking and removing from the Bowlers and upon their
premises the cattle consisting of forty-one head of dairy cows and one Holstein bull, which at
one time had belonged to others, and as to whom litigation had been had between some
others, but not as to the Bowlers.
As to No. 4110 there can be no doubt litigation had occurred between Stella B. Leonard,
formerly Stella B. Leonard Belanger, on the one hand, and David B. Belanger, H. M.
Childers, and Vincent Vrenon on the other, and that the above-mentioned parties were parties
in that action, and that a judgment and execution, copy of which were attached to the instant
proceeding, were filed, October 21, 1949, and that such execution was placed in the hands of
Sheriff Vannoy to be enforced. That fact, however, could not and did not affect the rights of
the Bowlers, who were not parties to such action, nor entitle Sheriff Vannoy to levy under
said execution, the cattle above mentioned, which were in the possession of the Bowlers, and
who claimed that such cattle were rightfully in their possession, and who asserted ownership
in and to them.
8. It has often been stated, and reiterated that an execution in relation to property cannot be
properly levied upon the property of a third person or stranger, to whom he is not at such
time of levy, a party.
to whom he is not at such time of levy, a party. Upon the basis of the right of possession such
third party or stranger to the proceedings had the right of immediate possession, and was not
even required to assert or file what is generally known as a third-party claim. See 33 C.J.S.,
Executions, sec. 168, p. 386; Haubrich v. Heaney, 161 Minn. 92, 200 N.W. 930.
9. As to executions, if a sheriff, levying upon such an execution is notified that the
claimant, or third party in possession asserts ownership to the property in question, yet the
sheriff insists upon retaining possession, he is liable to the true owner in trespass or trover.
Pilcher v. Hickman, 132 Ala. 574, 31 So. 469, 90 Am.St. Rep. 930.
In 2 Freeman on Executions, 2d Ed., sec. 254, pp. 799, 800, reference is made to Lyon v.
Goree, 15 Ala. 360. The learned author on said pages 799, 800 has stated: The writ, though
for the possession of specific chattels which it describes, may command the officer to take
them from the possession of the defendant. If so, it does not justify him in taking the goods
from the possession of a stranger to the writ to whom they belong.
In the instant proceeding, the testimony in the matter of the writ of mandamus No. 4272 in
Judge Guild's court, discloses that, upon the occasion of Milton A. Bowler visiting Sheriff
Vannoy in his office, at or during the time the cattle were being loaded, pursuant to the said
levy upon execution, a friend of the Bowlers, Mr. Price Ronnow of Fallon, Nevada, also
visited such office at that time and suggested calling James W. Johnson, Esq., attorney and
district attorney of Churchill County, Nevada, but who had been concerned as a private
attorney, representing the defendants in No. 4110, in which the only defendants therein were
David J. Belanger, H. M. Childers and Vincent Vrenon, and it does not appear that Mr.
Johnson was then representing the Bowlers. In any event, the testimony shows that at such
time and place, Mr. Johnson came at Mr. Ronnow's request, and definitely stated to Sheriff
Vannoy that, before he had the right to take the said cattle from the Bowlers, or from the
Bowler Ranch, he, Sheriff Vannoy, would have to require that a good and sufficient bond
or undertaking be furnished him by or on behalf of Mrs.
request, and definitely stated to Sheriff Vannoy that, before he had the right to take the said
cattle from the Bowlers, or from the Bowler Ranch, he, Sheriff Vannoy, would have to
require that a good and sufficient bond or undertaking be furnished him by or on behalf of
Mrs. Leonard, in order to indemnify such sheriff in the premises.
10. But it appears that Sheriff Vannoy did not heed the requirement as to furnishing such
bond. On the contrary, at one point in the testimony, he said, in substance, to Mr. Bowler that
he was not required to give a bond, and on or about that time stated to Mr. Bowler that if he,
Bowler, were injured or damaged he could sue. It seems clear that, under the circumstances,
as to the third-party claim hereinbefore mentioned, the fact that such claim was not executed
until October 25, 1949, and duly served (which, as it appears, was the very earliest in which
Mr. Vargas, attorney for the Bowlers, could be informed as to the action which had been
taken by the sheriff and properly prepare such claim), would not prevent the liability in tort to
have accrued or arisen on October 21, 1949, on behalf of the Bowlers, because at such
subsequent date, October 25, 1949, such third-party claim was thus executed, served and
filed.
In other words, the damages resulting from the alleged wrongful conversion were not
waived, nor was the actual conversion stayed, from the date on October 21, 1949 until the
third-party claim was filed and served on October 25, 1949, awaiting such third-party claim,
for the reason that such conversion and any damages which legally may have resulted was, in
our view, clearly wrongful and tortious, and has continued to be so. It did not require the
third-party claim to establish it in the first instance, but upon being subsequently established
by competent evidence and a valid judgment, such tortious cause of action that had already
existed, would continue to exist until such an action had been filed and proved, and judgment
granted or dismissed, or had become barred by the statute of limitations, under sec.
8708.01, N.C.L.Supp., vol. 2, and sufficient sureties justified and the bond approved. If
judgment in favor of petitioners had been adjudged, under such third-party claim statute,
doubtless such damages, liability, fees, costs and counsel fees as would otherwise have been
properly applicable, would have been superseded by the accrual of such damages as would
doubtless have been adjudged under the third-party claim statute.
11. But the plaintiff, Stella B. Leonard, formerly known as Stella B. Leonard Belanger, in
case No. 4110, failed as to said third-party claim, to provide for such bond and Sheriff
Vannoy entirely disregarded making any demand upon the plaintiff to give the sheriff an
undertaking executed by at least two good and sufficient sureties in a sum equal to double the
value of the property levied on. Such quotation is sec. 8708.01, N.C.L. Supp., vol. 2, above
mentioned.
Consequently, the bond or undertaking not having been given by the plaintiff, Mrs.
Leonard, to the sheriff, and she having failed to do so, the sheriff, in accordance with such
third-party claim, and pursuant to said statute, sec. 8708.01, N.C.L.Supp., vol. 2, was required
to release said property to Milton A. Bowler and Milton D. Bowler.
12. In the first paragraph of said third-party claim statute, same being sec. 8708.01,
containing the words, fails within five days after written demand to give the sheriff an
undertaking, etc., the provision as to the term written demand relates to such a written
demand by the sheriff. In the similar statute in California, which is almost verbatim as the
same language in our said statute, the provision referred to as to written demand is
construed to mean, that such demand upon the plaintiff may be made by the sheriff as a
matter of his protection, but the sheriff is not required to demand such bond. In any event, if
the plaintiff, or the person in whose favor the writ of attachment runs, fails within five days
after written demand to give the sheriff an undertaking * * *it is manifest that if the
provision were construed to be otherwise, the sheriff could make abortive or impossible
"the third party claim" requirement compelling the release of the property wrongfully
taken from the third party claimant, if the execution or attachment plaintiff "has failed
within five days to give such bond or undertaking."
were construed to be otherwise, the sheriff could make abortive or impossible the third party
claim requirement compelling the release of the property wrongfully taken from the third
party claimant, if the execution or attachment plaintiff has failed within five days to give
such bond or undertaking. That is made clear in Duncan v. Superior Court of California, 104
Cal.App. 218, in which, on page 221, 285 P. 732, on page 734, Sturtevant, J., stated: Where
property has been levied on it is clear that the third party claimant may make an attempt to
have it released and that such attempt may be fully made and (unless the plaintiff gives the
undertaking specified in paragraph 1) effectually accomplished within a period of five days
after the levy. Nothing but the execution of the said undertaking will stay the sheriff's hand. If
the plaintiff gives the undertaking provided for in paragraph 1, and if he also petitions for a
hearing as provided for in paragraph 5, important questions as to the legal effect of the
hearing will arise which should not be passed on till they have been duly presented in a
proper case. If he does not give the undertaking the statute contains no provisions that the
sheriff's hand will be stayed, nor that he may later retake the property, nor that the court may
impound the property until a petition has been heard, nor that thereafter the court can make
any order looking toward the retaking of the property. (Italics ours.)
The provision involved in this proceeding in No. 3598, in relation to the third party claim
statute in Nevada, is sec. 8708.01, N.C.L.Supp., vol. 2, to which reference has been above
made, and the particular paragraph therein is sec. 210 1/2. The identical provision in
California is paragraph 1 of sec. 689 of the Code of Civil Procedure, as amended in 1929.
The only difference is that in said paragraph 1 in the California Code provision, the
reference is to writ of execution, whereas, the same paragraph in Nevada is sec. 210 1/2,
and the reference is to writ of attachment.
But the terms writ of execution and writ of attachment are interchangeable under our
Civil Practice Act in Nevada as to the identical provisions in question.
As above indicated, the plaintiff in No. 4110, not having furnished a bond or undertaking
to the sheriff under such third-party claim statute, sec. 8708.01, N.C.L. Supp., vol. 2, and it
appearing from the evidence and the law involved in this proceeding No. 3598 that the cattle
above mentioned were wrongfully taken and removed from the Bowler Ranch, and it having
been determined by us that such third-party claim statute, sec. 8708.01, is valid and effective,
and sufficiently supported by ample authority, and that, pursuant to the said statute, no bond
having been furnished by the plaintiff in compliance with such third party claim, executed
and served, as aforesaid, on October 25, it follows that said forty-one head of dairy cattle and
one Holstein bull, unlawfully taken and removed from the possession of the said Bowler
Ranch and premises, should have been released immediately after such failure to furnish such
said undertaking to the said sheriff, and that, in view of the facts and the law applicable, must
be returned to the petitioners, Milton A. Bowler and Milton D. Bowler, to the said Bowler
Ranch premises, without delay. It follows further that, commencing October 21, 1949, and
continuing until ordered by this court, the said cattle and each and all thereof, have been
converted, wrongfully, by the respondent, Ralph J. Vannoy, sheriff, of Churchill County,
Nevada, to his own use, and to that of the plaintiff, Stella B. Leonard, formerly known as
Stella B. Leonard Belanger.
13. The fact that the said Stella B. Leonard was advised by her attorney, John S. Sinai,
Esq., his assistant Mr. Coleman, and perhaps others, to cause said cattle to be thus removed
from the petitioners and their Bowler Ranch and premises, and to deliver them to the plaintiff
and to any such premises and location within the said county of Churchill, Nevada, or
elsewhere within the State of Nevada, by reason of the fact as it has been alleged, the said
cattle were taken and removed therefrom prior to such third-party claim having been
filed, October 25, 1949, and that plaintiff was thus absolved from the operation and effect
of the said third-party claim statute above mentioned, and that the same was ineffective,
and that neither the said sheriff, nor the plaintiff was required to release and return said
cattle to the Bowlers and their premises, is untenable.
alleged, the said cattle were taken and removed therefrom prior to such third-party claim
having been filed, October 25, 1949, and that plaintiff was thus absolved from the operation
and effect of the said third-party claim statute above mentioned, and that the same was
ineffective, and that neither the said sheriff, nor the plaintiff was required to release and
return said cattle to the Bowlers and their premises, is untenable. It is clearly found that they
were thus converted, and continued to be so converted, since October 21, 1949, and
thereafter, unlawfully and wrongfully. Such action, therefore, taken by the said Ralph J.
Vannoy, sheriff, was unlawful and totally void and of no effect.
The same may be said, equally, by reason of the fact that a so-called Return upon such writ
of execution, filed October 21, 1949, was returned, November 22, 1949. Such act and
conduct on the part of said sheriff, could not be converted into any rightful or valid action as
against the Bowlers, as no action could have been lawfully taken as to their said property, nor
such cattle removed from their premises against their will and without their consent, for the
reasons fully above shown and set forth. They were deprived of any and all notice, and the
right to be heard, and such action on the part of the sheriff was unlawful, wrongful and
arbitrary, and without due process.
Consequently, it necessarily follows that said cattle were thus unlawfully and wrongfully
converted by the said sheriff and regardless of the location or physical premises within the
said county of Churchill, and to which they were removed, or where they may be found, and
that they were on October 21, 1949, and continuously have been and now are entirely the
possessory property of the petitioners, and that the said sheriff, Ralph J. Vannoy, has,
commencing on the said 21st day of October, 1949, and until the present date, been in the
constructive possession of the said cattle.
In that connection see 21 Am.Jur., sec. 502, p. 249, citing the following: Chadbourne v.
Summer, 16 N.H.
129, 41 Am.Dec. 720; Phillips v. Elwell, 14 Ohio St. 240, 84 Am.Dec. 373; Evans v. Matson,
51 Pa. 366, 88 Am.Dec. 584.
14-16. Finally, we must consider whether or not mandamus is appropriate in the instant
proceeding, and whether or not the alternative writ should be dismissed, or that same may be
made permanent.
Our statute as to mandamus, chap. 73, N.C.L., vol. 4, sec. 9243, provides: 754. This
writ shall be issued in all cases where there is not a plain, speedy, and adequate remedy in the
ordinary course of law.
In view of the existing situation in the instant proceeding, and the facts and circumstances,
as they now reasonably appear, it appears reasonable to conclude that without this writ
providing a plain, speedy, and adequate remedy, such other remedies in the ordinary course of
law would seem unavailing.
If the Bowlers, instead of seeking this extraordinary writ, had proceeded by a claim and
delivery action, similar to replevin, expensive and prolonged litigation would probably have
resulted, and upon prevailing, their dairy business would, at the best, have been then or would
thereafter have become very largely crippled, if not destroyed. If it were assumed that
damages would prove sufficient, even in that instance, we must be able reasonably to assume
that by such damages, through petitioners' action, they could feasibly commence again to
restore or rehabilitate their undertaking, which, however, might prove highly uncertain. And
coupled with that situation, suppose, the damages hoped for should not be recoverable
because of insolvency or other inability on the part of the plaintiff, provided the Bowlers
succeeded in establishing such judgment. It appears that mandamus is the proper remedy
under the circumstances. It is contended that, inasmuch as the honorable district judge in the
First judicial district court, in and for the county of Churchill, decided to dismiss a petition
for writ of mandate in a similar former proceeding in that court, the petitioners are precluded
in this court from so doing by virtue of the principle of res adjudicata.
from so doing by virtue of the principle of res adjudicata. We do not so decide. The former
decisions of this court, which we should follow unless plainly erroneous, have clearly pointed
out some phases of the questions at issue. In the case of State ex rel. Sugarman v. Lamb, 37
Nev. 19, 138 P. 907, 910, referring to the principal question, it is, in effect, stated that, in the
absence of a good and sufficient bond, the property should be redelivered and returned to the
party from whom taken. In that case, it made little difference whether or not the parties
originally proceeded in a claim and delivery action, or without any former action, by one a
stranger to the proceeding, so far as the point now involved is concerned. Mandamus was
held the appropriate remedy and that the property which had wrongfully been taken, because
no sufficient undertaking had been furnished, must be retaken, redelivered and returned to the
party from whom it had been wrongfully taken. In the opinion in that case, supra, Mr. Justice
McCarran stated, as follows:
In an action for claim and delivery after the officer has taken possession of the property,
and between that time and the time it is delivered to either of the parties to the action, the
property is in custody of law. The wrongful delivery of the property to either party to the
action does not relieve it from this rule. The sheriff, in an action of this kind is charged under
the law with the duty of ultimately delivering the property to one of the parties to the
litigation. Welter v. Jacobson, 7 N.D. 32, 73 N.W. 65, 66 Am.St.Rep. 632. * * * It follows,
where the record discloses that the property, although wrongfully put out of the hands of the
sheriff, is still within the county, the sheriff may, and it is his duty, to retake the property.
Where, in an action in claim and delivery, the property is seized by a sheriff and afterwards
released to the defendant upon a forthcoming bond, it is still in the custody of the court in
which the action was instituted, and remains in the custody of that court to abide the result of
the replevin suit.
result of the replevin suit. 34 Cyc. p. 1381. In this case the sheriff having erroneously released
the property to the defendant, after that property was taken by him as an officer of the court, it
is still in contemplation of the law in his control and possession.
It is manifest from the record in this case that defendant, in the action in claim and
delivery, failed to comply with the terms of the statute in that no notice was given to the
plaintiff, and the sureties on the undertaking of defendant did not justify, as prescribed by
section 188 of the civil practice act. In fact, on the part of the defendant, there was no
compliance with the statute. It was therefore the duty of the sheriff, upon receipt of his lawful
fees for taking and the necessary expenses for keeping, to deliver the property to the
plaintiff.
And in State v. Lamb, supra, the question of whether an alternative writ of mandamus,
having in another court, been dismissed and another such writ having been instituted in this
court, has become res judicata, is treated as follows: (2) This matter having been presented
to the court below by affidavit and application for a writ of mandamus commanding the
sheriff to deliver the property to the plaintiff, and that court having refused to issue the writ, it
is our judgment that the petitioner has exhausted his remedies in the district court and is
entitled to have the matter heard and determined by this court. State, ex rel. Johnson v.
Collins, supra [41 Mont. 526, 110 P. 526].
17. In the case of State ex rel. Keane v. Murphy, 19 Nev. p. 89, it is stated on page 95, 6 P.
840 on page 843 (also referred to in the case of State ex rel. Sears v. Wright, 10 Nev. 167,
175) as follows: The mere fact that an action or proceeding will lie does not necessarily
supersede the remedy by mandamus. The relator must not only have a specific, adequate, and
legal remedy, but it must be one competent to afford relief upon the very subject-matter of his
application; and if it be doubtful whether such action or proceeding will afford him a
complete remedy, the writ should issue.' [State ex rel.
whether such action or proceeding will afford him a complete remedy, the writ should issue.'
[State ex rel. Sears v. Wright], 10 Nev. [167], 175; and see Babcock v. Goodrich, 47 Cal.
488.
18. Digressing for the moment, and referring to the fact that there is a possibility, or even
probability, that the petitioners may feel constrained to seek damages because of the alleged
wrongful action of the respondent sheriff, Ralph J. Vannoy, in the premises, and concerning
which petitioners in the prayer of their petition have sought the remedy of damages, it is true
that, under certain circumstances, damages are recoverable upon proceedings being had in
mandamus. This court in Nevada, under the statute as to a mandamus proceeding in N.C.L.,
vol. 4, sec. 9247, has stated the following: 9247. When Answer Raises Question Of
Fact.Question Tried Before Jury. 758. If an answer is made, which raises a question as to
matter of fact essential to the determination of the motion, and affecting the substantial rights
of the parties, and upon the supposed truth of the allegation of which the application for a
writ is based, the court may, in its discretion, order the question to be tried before a jury, and
postpone the argument until such trial can be had and the verdict certified to the court. The
question to be tried shall be distinctly stated in the order for trial, and the county shall be
designated in which the same shall be had. The order may also direct the jury to assess any
damages which the applicant may have sustained, in case they find for him.
Similar provisions prevail in many other states. But it has not been our practice in this
court to provide for the hearing of controversial matters of fact in the supreme court,
necessitating the hearing and trial of witnesses, production and determination of evidence,
etc., which would convert our procedure into that of a trial court, instead of the appellate
court of last resort, and so confuse the functions of the two courts that, in our view, a clear
line of demarcation would by such confusion, overreaching and overlapping, largely
undermine the traditional characteristics and the complexion of those tribunals.
our view, a clear line of demarcation would by such confusion, overreaching and overlapping,
largely undermine the traditional characteristics and the complexion of those tribunals. At
least, we have in the past carefully, observed such demarcation. It is our view, therefore that
instead of an attempt to resort to recovery of damages in this mandamus proceeding in this
court that such action, suit or proceeding may be instituted and proceeded with in some other
court or tribunal as may be appropriate.
19. In regard to the question of the title of the personal property, namely, the cattle
involved as between Stella B. Leonard on the one hand, and the Bowlers on the other, it does
not appear necessary, even to suggest that this proceeding by writ of mandate is only for the
purpose of restoring the status quo, that is to say, that, because, in view of the facts and the
legal rights and principals applicable, the dairy cattle should not have been taken from the
Bowlers and the Bowlers have been deprived of their possession by the sheriff, Ralph J.
Vannoy, without due legal process, and that their possession must be returned from whence
they came, and placed, in legal contemplation, in such position or situation as that in which
they were before the sheriff unlawfully converted them. Hence, it is proper to state, we
believe, that it is not our duty or province to indicate such matters as to actual ownership, or
title, or the lack of it, as may appear, nor matters as to which heretofore certain parties have
acted rightfully, or wrongfully, honestly or fraudulently. Either or both parties, without even
any suggestion here, are free, of course, to resort to claim and delivery, proceedings by
supplementary execution, perhaps by third party claim, or any other suitable action, suit or
proceeding, as they may properly conclude that may be expedient and appropriate. In the
instant proceeding, the premises based upon the facts and the law having been duly
considered, it is hereby ordered that the certain forty-one (41) head of dairy cattle and one (1)
Holstein bull, as aforesaid, and which were unlawfully and wrongfully, on the 21st day of
October, 1949, by Ralph J.
which were unlawfully and wrongfully, on the 21st day of October, 1949, by Ralph J.
Vannoy, sheriff of the county of Churchill, State of Nevada, taken and removed from the
possession of Milton A. Bowler and Milton D. Bowler and from the premises known as the
Bowler Ranch in the said county of Churchill, and which, without right or authority, were
converted by the said Ralph J. Vannoy, said sheriff, to his own use, benefit and to the use,
purposes and benefit of Stella B. Leonard, formerly known as Stella B. Leonard Belanger,
and perhaps to others, in which, nevertheless, Ralph J. Vannoy, said sheriff, was, and still is,
constructively in possession of said dairy cattle and one Holstein bull, and that such dairy
cattle and each and every head thereof have constructively remained, and continue to remain,
shall be immediately and forthwith returned by the said Ralph J. Vannoy from wherever said
dairy cattle and each and every head thereof physically may be, whether at one location or
place, or several places or locations within the said county of Churchill, State of Nevada,
regardless of the presence of any other person or persons who may be physically in charge of
said cattle, but as to whom all such persons shall be deemed to be the agents of the said Ralph
J. Vannoy, sheriff, and that the said Ralph J. Vannoy, sheriff, being in the constructive
possession thereof, upon thus returning said cattle, shall take, convey and conduct the same,
or cause them to be taken, conveyed and conducted to Milton A. Bowler and Milton D.
Bowler, and to their premises known as the said Bowler Ranch, and then and there to
redeliver said cattle, and each and every head thereof, thereby placing said cattle fully in the
possession of said Milton A. Bowler and Milton D. Bowler, and thereby reestablishing the
status quo.
It is hereby ordered that the said Ralph J. Vannoy as such sheriff, and individually, shall be
fully and completely responsible for the carrying out of said writ of mandamus without undue
delay and with due and prompt diligence.
And it is further hereby ordered that said alternative writ be and hereby is made permanent.
Eather, J., concurs.
Badt, J.
I concur reluctantly in the order granting the writ of mandamus (1) because I fear that the
asserted inadequacy of legal remedies works both ways in this case; (2) because I am not
convinced that the execution issued in Stella B. Leonard Belanger v. Belanger, Childers and
Vrenon, following the form of the judgment in that case, ordering the immediate delivery of
the livestock to the plaintiff is within the contemplation of the third-party claim statute
(though no authorities pointing out the distinction have been presented); (3) because the
granting of the writ of mandamus which in effect orders the sheriff to take the cattle from the
possession of Mrs. Leonard and deliver the same to the Bowlers, in a proceeding to which
Mrs. Leonard is not a party, is subject to the same criticism as the action of the sheriff which
we condemn, namely, his taking of the cattle from the possession of the Bowlers by virtue of
a writ pursuant to a judgment in an action to which the Bowlers were not parties; (4) because
our opinion and judgment in this proceeding can determine nothing as to the conflicting
claims of the parties and because such conflicting claims have not yet been determined; and
(5) because, in view of the fact that title to the cattle was adjudicated to be in Mrs. Leonard in
two prior actions (the first against her husband and the second against him, Childers and
Vrenon), I am in doubt but that an earlier status quo should be contemplated than the status at
the time of the sheriff's seizure of the cattle. However, despite these doubts, I do not feel free
to dissent in view of the holding of this court in State ex rel. Sugarman v. Lamb, Sheriff, 37
Nev. 19, 138 P. 907, in which this court by mandamus commanded the sheriff to return to the
plaintiff in replevin property which the sheriff had theretofore returned to the defendant,
because the latter had failed to comply with statutory requirements to obtain such return.
failed to comply with statutory requirements to obtain such return. Conceding the distinction
between a sheriff's duties under replevin and his duties under execution of a judgment such as
the one here involved, the analogy and reasoning of this court in that case, as well as the other
authorities cited in the opinion of the chief justice are sufficient to preclude my dissent.
On Petition for Order Reopening Case For Submission of Evidence and Further Argument
and Rehearing.
March 27, 1950. 216 P.2d 274.
Petition denied.
Morley Griswold and George L. Vargas, both of Reno, for Petitioners.
John S. Sinai, of Reno, and Andrew L. Haight, of Fallon, for Respondent.
Respondent has filed a 75-page Petition for Order Reopening Case for Submission of
Evidence and Further Argument and Rehearing in which the court is severely taken to task
for (1) determining adverse claims to title (2) in a mandamus proceeding (3) on an incomplete
record (4) without opportunity to respondent to produce proofs and (5) in a misconception of
such evidence as was adduced. The conclusions reached by us in our former opinion may be
condensed to this. Respondent sheriff, armed with a writ against Vrenon, ordering respondent
to deliver certain livestock to Mrs. Leonard, found the cattle in the possession of the Bowlers,
who were not parties to the writ or to the action, and who claimed title and right of
possession. It was the sheriff's clear mandatory duty, in the absence of any process directed
against the Bowlers, in the first place to respect their claim of title and claim of right to
possession, and in the second place to honor their third-party claim in default of Mrs.
in default of Mrs. Leonard's bonding against it and in the absence of proceedings under the
third-party claim statute. Such is still our conclusion. Our issuance of the peremptory writ
terminated this proceeding. See 35 Am.Jur. 124, Mandamus, sec. 386. The petition is denied.
Badt and Eather, J.J., concur.
____________
67 Nev. 114, 114 (1950) Harrah v. Home Furniture
JOHN HARRAH, Appellant, v. HOME FURNITURE, Incorporated, A Corporation,
Respondent.
No. 3593
February 14, 1950. 214 P.2d 1016.
Action by the Home Furniture, Incorporated, against John Harrah for a balance due for
merchandise ordered by and delivered to the wife of defendant and charged to his account.
From a judgment of the Second Judicial District Court, Washoe County, A. J. Maestretti,
Judge, Department No. 2, for the plaintiff, the defendant appealed.
The Supreme Court, Badt, J., held that the evidence established the ostensible agency of
the wife for the husband in making the purchases; that evidence of ratification was sufficient
for the jury and that there were no reversible trial errors.
Judgment affirmed.
1. Principal and Agent.
A single act of an agent and a recognition thereof by the principal may be unequivocal and of such
comprehensive character as to place the authority of the agent to do similar acts for the principal beyond
any question and the value of such proof did not depend so much on the number of the acts, as upon their
character.
2. Husband and Wife.
In action against husband for the balance due for the merchandise ordered and delivered to his wife,
payment made by defendant in July of items purchased by the wife and charged to the defendant's account
in June established an ostensible agency establishing husband's liability for purchases by the wife in the
name of husband in September of that year.
3. Trial.
In action for balance due for merchandise ordered and delivered to wife of defendant and charged to
defendant's account where books of account of plaintiff were not admitted as proof of agency of the wife
and court strictly limited such admission and proof of agency was thereafter submitted, motion to strike the
books was properly denied.
In action for merchandise ordered and delivered to wife of defendant and charged to his account,
evidence of ratification of the agency of the wife for defendant in obtaining the merchandise was sufficient
to go to the jury.
5. Fraud, Statute of.
In suit for balance due for merchandise ordered and delivered to wife of defendant and charged to the
account of defendant the statute of frauds relating to the promise to answer for the debt or default of
another had no application.
In action for merchandise ordered and delivered to the wife of defendant and charged to his account,
instruction respecting agency of the wife for the husband was sufficient and instruction as to lack of any
presumption growing out of cohabitation was properly refused.
7. Trial.
In action for merchandise ordered and delivered to the wife of defendant and charged to his account,
instruction respecting assumption of authority to act as an agent for another with picturesque illustrations
was properly refused in view of the instruction given by the court.
8. Appeal and Error.
Where no prejudicial error in the admission or rejection of evidence or instructions given or refused,
finding of jury in favor of plaintiff could not be disturbed.
Harlan L. Heward, of Reno, for Appellant.
Bert M. Goldwater and David Goldwater, of Reno, for Respondent.
OPINION
Home Furniture, Incorporated, recovered a judgment against John Harrah, pursuant to
verdict of a jury, for $820.75 as a balance due for merchandise ordered by and delivered to
Gloria Harrah, the defendant's wife, and charged to Harrah's account.
charged to Harrah's account. He has appealed from the judgment and order denying new trial.
The main question involved is that of the creation by Harrah of an ostensible agency in his
wife. No question is raised as to the delivery of the merchandise or its reasonable value.
Plaintiff's book accounts admitted in evidence showed an account against John Harrah
commencing February 14, 1947 with an item of $842.40 for carpet, etc., which was paid
March 7, 1947; an item of April 26, 1947 in the sum of $22 for Venetian blinds; an item of
credit on July 31, 1947 of $22.50 for the return of one of two lamps which had been
purchased for cash for $44.50. The testimony shows that all of these items were ordered by
defendant John Harrah personally. The account then shows on March 25, 1948 the purchase
(also by Mr. Harrah) of two card tables for $7.90, which left the account with a credit balance
of $14.60. Next appear charges on June 21, 1948 of a boy's bicycle for $42.95 and poultry
shears $3.75, aggregating $46.70, which, after applying the credit balance of $14.60, left a
debit balance of $32.10. The bicycle and poultry shears were purchased by Mrs. Harrah and
charged to John Harrah's account. This balance he paid on July 10, 1948 on receipt of what he
states was an unitemized statement of balance due and which he paid thinking that it was for
items that he himself had ordered. Witnesses for the plaintiff testified that the $32.10 paid by
Harrah was upon an itemized bill, and the jury apparently accepted that testimony. The
account next shows purchases on August 27 and September 15, 1948 of numerous items of
luggage amounting to $820.75 by Mrs. Harrah, and these items comprise the ones in dispute.
John Harrah and Gloria Harrah were married May 23, 1948. Apparently her divorce from a
former husband had not at that time become final and the parties were again married July 7,
1948. They separated September 20, 1948, the day that the major group of items, aggregating
$620, was purchased by Mrs. Harrah. Mr. Harrah filed a complaint for divorce against her on
September 21, 194S and decree of divorce was entered November 29, 194S.
21, 1948 and decree of divorce was entered November 29, 1948.
The payment made by the defendant on July 10, 1948 of the items purchased by Mrs.
Harrah and charged to his account in June, 1948 is relied upon as the creation of an ostensible
agency establishing his liability for her purchases in his name in September of that year.
1, 2. Appellant concedes that agency may be implied from a prior course of dealing, but
insists that his payment of one bill does not establish a course. (One of the definitions of
course appearing in the 1948 edition of Webster's International Dictionary is a succession
of acts or practices as, a course of conduct.) Respondent contends that ostensible authority
may be conferred by the recognition of a single similar act of the agent if sufficiently
unequivocal. It cites 1 Cal.Jur. 742, par. 42, to the following effect: Where the third person
relies upon an ostensible agency, he must give evidence of similar transactions in which the
act of the agent was authorized or recognized; or, more accurately, since an ostensible
authority may be conferred by the recognition of a single act of the agent if sufficiently
unequivocal, the third person must show at least one specific instance in which a similar act
of the alleged agent was authorized or recognized.
It also relies on Wilcox v. Chicago, Milwaukee & St. Paul Railroad Co., 24 Minn. 269, in
which case the court, in approving the trial court's refusal to give a requested instruction that
the approval of more than one act of the alleged agent is necessary to raise a presumption of
authority, said: This request is bad; a single act of the agent and a recognition of it by the
principal may be so unequivocal and of so positive and comprehensive a character, as to place
the authority of the agent to do similar acts for the principal beyond any question. The value
of such proof does not depend so much on the number of acts as upon their character.
Appellant characterizes this holding as dictum and notes that no authority is cited to
support it.
The rule was approved in Graves v. Horton, 38 Minn. 66, 35 N.W. 568, although it is true
that the court there held that it did not apply to the facts in that case. It was also approved in
Quinn v. Dresbach, 75 Cal. 159, 16 P. 762, 7 Am.St.Rep. 138, and in Bryan v. Jackson, 4
Conn. 288, under authority of 1 Christian, Blackstone's Commentaries, 430, and also in
Harrison v. Legore, 109 Iowa 618, 80 N.W. 670. It is similarly stated in 1 Mechem on
Agency, 192, note, citing these cases, and in other texts.
No authorities have been presented disapproving or even criticizing these cases and we
think the rule as stated is good law.
To reject it is to adopt its equivalent negative, that in no case can the acquiescence in or
approval of a previous single act, no matter how pronounced, conclusive, unequivocal or
comprehensive, justify an inference of authority to do a similar act. We do not feel justified in
adopting so mechanical a rule. Appellant concedes that the approval of two acts might
constitute the approval of a course of conduct, acceptable under all the authorities as
sufficient to justify the inference. A dozen acts would be more convincing, and a hundred still
more so, as in such case the inference is more readily and more surely drawn Aga v.
Harbach, 127 Iowa 144, 102 N.W. 833, 834, 109 Am.St.Rep. 377, 4 Ann.Cas. 441, but no
fixed yardstick can be justly applied.
3. Appellant assigns as reversible error the admission in evidence, over his objection, of
respondent's books of account upon the ground that they were not admissible as proof of
agency. It is clear however that they were not admitted for such purpose and that proof of
agency aliunde was first required. The court stated in the presence of the jury that the books
were admitted subject to the objections of defendant and would be stricken unless the
agency is established as required by law. This was made clear throughout the trial. The proof
of agency was thereafter submitted. At the close of the evidence defendant renewed his
objection and his motion to strike the exhibits.
motion to strike the exhibits. We feel that the motion was properly denied.
4. Appellant assigns as error the giving of an instruction on the question of ratification (1)
because that was a question of law for the court, (2) because there was no evidence of
ratification, and (3) because, not being in writing, it was barred by the statute of frauds. Mr.
Harrah frankly admitted a conversation with plaintiff concerning payment of the disputed bill,
but insists that this was at most a conditional promise to pay the bill if plaintiff should be
unable to get the money out of a proposed attachment of the wife's car. There was sufficient
evidence in our opinion to go to the jury under a proper instruction as to ratification, which
was given. 2 Am.Jur. 361, Agency, sec. 454, n. 13. Called as an adverse witness, Mr. Harrah
testified as follows: I said, I don't like to see you get stuck for it. If you can collect it out of
her,' I said, she has a good automobile that I bought for her and if it could be attached you
could get your money out of it.' I said, I don't know where she is now. She is gone away and I
don't know whether she will be back. I filed suit for divorce against her; she is making an
appearance but I don't know whether she will be here.' But I said, I'd like to locate her and I
am mad at her and I'd like to see somebody take the car away from her.' So I said, If I locate
her and I find that the car is in such shape you could attach it, and I would satisfy myself,' I
said, I practiced law most of my life, if I could satisfy myself that if I attach it you can collect
your bill, and if I so advise you, then if you go ahead and do it and you don't get the money
out of the car, I will pay the bill, myself,' but I said, I don't know even if I can locate her.' He
said, I think that will be all right; I think I would like to talk to the boys about it,' or
something like that and I said, All right, if I locate her or the car I will let you know'.
Some of this is not too clear, but the jury were able to get a better picture from the
demeanor of the witness and the manner in which the words were spoken.
5. Appellant has submitted a list of authorities in which the statute of frauds was
successfully invoked, but we find that in these cases the original credit was given to the wife
and the husband was sued on his promise to pay her debt. This has no application here.
6. Error is also assigned in the court's refusal to give the jury defendant's proposed
instruction to the effect that no presumption of agency arises from cohabitation. The court
instructed the jury: You are instructed that a wife is not the agent of her husband by force of
the marriage relationship existing between them; the husband, however, may make his wife
his agent and be bound by her acts as such agent. The agency relationship between husband
and wife in such case rests upon the same considerations of any other agency; she is his agent
and he is bound by her acts as his agent, only when her agency is expressed or implied.
According to the testimony the parties were husband and wife, and the instruction as to
lack of any presumption growing out of cohabitation was properly refused. The instruction
given was all that was necessary and it properly instructed the jury as to the law.
The court also refused to give the following instruction proposed by defendant: The law
indulges in no presumption that an agency exists but instead presumes that a person is acting
for himself and not as agent for another.
7. In our opinion the instruction given, negativing agency as arising from the marriage
relationship, is stronger than the one refused.
The court also refused the following instruction: An assumption of authority to act as
agent for another of itself challenges inquiry. Like a railroad crossing, it should be in itself a
sign of danger and suggest the duty to stop, look and listen.' It is therefore declared to be a
fundamental rule, never to be lost sight of and not easily to be overestimated, that persons
dealing with an assumed agent, whether the assumed agency be a general or special one, are
bound at their peril, if they would hold the principal, to ascertain not only the fact of the
agency but the nature and extent of the authority, and in case either is controverted, the
burden of proof is upon them to establish it."
eral or special one, are bound at their peril, if they would hold the principal, to ascertain not
only the fact of the agency but the nature and extent of the authority, and in case either is
controverted, the burden of proof is upon them to establish it.
While this picturesque language may indeed in a proper case be a true statement of law,
we cannot find reversible error in its rejection. The court instructed the jury: You are
instructed that a husband cannot escape liability from the ostensible agency of his wife arising
from past dealings, acts and omissions, by mere notice to his wife or notice not brought home
to the tradesman. The tradesman has a right to presume that the authority of the wife, having
been once held out to the tradesman by the husband, continues until the tradesman has reason
to know to the contrary. Therefore, if you find that John Harrah by his acts and conduct held
Gloria C. Harrah out to the Home Furniture Company as his agent with the power to pledge
his credit for purchase in plaintiff's store, then you must find that the authority of Gloria C.
Harrah as such agent continued until the plaintiff was actually notified to the contrary.
Other instructions dealt properly with the subject. We do not find it necessary to quote
them all. It is true that they do not characterize an assumption of agency as a sign of danger,
nor instruct the jury that one dealing with an agent is bound at his peril to ascertain the
agency, but in view of the evidence of prior ostensible agency on which plaintiff relied, we
think the court was justified in refusing these characterizations.
8. Both parties in their opening statements to the jury stated that the issue was a simple
one. Plaintiff stated, among other things that it would rely on the husband's payment of the
wife's prior purchases against his account as justifying further purchases similarly charged.
Defendant stated that he simply denied liability and knew nothing of the transactions and
never created his wife his agent. As we find no prejudicial errors in the admission or
rejection of evidence or in the instructions given or refused, as presented in appellant's
assignment of errors, we cannot intrude upon the functions of the jury in finding a verdict
for plaintiff.
errors in the admission or rejection of evidence or in the instructions given or refused, as
presented in appellant's assignment of errors, we cannot intrude upon the functions of the jury
in finding a verdict for plaintiff.
The judgment and the order denying the defendant's motion for new trial are hereby
affirmed with costs.
Horsey, C.J., and Eather, J., concur.
____________
67 Nev. 122, 122 (1950) Thomas v. Nevans
LORRENE THOMAS, Appellant, v. FOREST M. NEVANS and DONNIE MAE NEVANS,
Doing Business Under the Name of MIDWAY USED FURNITURE, Respondents.
No. 3582
February 14, 1950. 215 P.2d 244.
Lorrene Thomas brought action against Forest M. Nevans and Donnie Mae Nevans, doing
business under the name of the Midway Used Furniture, to recover value of furniture which
had been plaintiff's separate property, and which had been sold to defendants without
plaintiff's permission by divorced husband of plaintiff.
The Second Judicial District Court of Washoe County, A. J. Maestretti, Judge, Department
No. 2, rendered a judgment for the defendants and entered an order denying plaintiff's motion
for a new trial, and the plaintiff appealed.
The Supreme Court, Badt, J., held that evidence sustained finding that plaintiff was
estopped to deny the authority of her divorced husband to sell the furniture.
Judgment and order affirmed.
A wife may be, by her actions, estopped from claiming lack of authority in her husband to dispose of her
separate property. Const. art. 4, sec. 31.
Fact that divorced wife failed to record an inventory of her separate property as required by statute,
during marriage, did not result in forfeiture of the separate property, but such fact could properly be
considered in action by divorced wife against buyers of her separate property from
divorced husband, as one circumstance to considered with all other evidence.
fact could properly be considered in action by divorced wife against buyers of her separate property from
divorced husband, as one circumstance to considered with all other evidence. N.C.L.1929, secs. 3357,
3359.
Evidence that divorced wife had never recorded an inventory of furniture which was her separate
property, during marriage, that after divorce she and divorced husband lived together, that used furniture
dealer did not know that there had been a divorce, that divorced wife discussed sale of furniture to dealer,
and that thereafter divorced husband sold furniture to dealer, sustained finding in action by divorced wife
against dealer that she was estopped to claim lack of authority in divorced husband to sell the furniture.
N.C.L. 1929, secs. 3357, 3359; Const. art. 4, sec. 31.
4. Lis Pendens.
The doctrine of constructive notice resulting from the filing with the county recorder of a notice of lis
pendens applies only to actions affecting realty. N.C.L.1929, sec. 8577.
5. Divorce.
Judgment in divorce action was not constructive notice to used furniture dealer that furniture was separate
property of divorced wife, so as to entitle divorced wife to prevail in action against dealer after he
purchased furniture from divorced husband, where findings in divorce action that furniture was divorced
wife's separate property was not referred to in the judgment, filing of the judgment was restricted to the
usual docketing and recording in county clerk's office, and only the judgment was recorded.
Pike, McLaughlin & Furrh, of Reno, for Appellant.
L. D. Summerfield, of Reno, for Respondents.
OPINION
The main question presented by this appeal is: Was there sufficient evidence before the
trial court to justify its finding and conclusion that plaintiff was estopped by her actions from
questioning the authority of her former husband to sell the household furniture, owned by her
as her separate property, to the defendants, who bought the same for value in good faith? We
are of the opinion that there was. The facts are these.
One Duane Heeren, a former husband of plaintiff, and Heeren's parents had in 1940 or
1941, while the couple were living in California, given her certain household furniture as
gifts. She and Heeren were divorced, and she married Robert Jackson Maynard, April 22,
1944, and had the furniture moved to their rented living quarters at 767 Morrill Ave., Reno.
Less than six months thereafter, on October 2, 1944, she secured a divorce from Maynard on
the ground of extreme cruelty, and the court's findings of fact were to the effect that the
couple owned no community property, but that the household furniture (the same here in
question) was the wife's separate property. Neither the conclusions of law nor the decree in
that case made mention thereof. After the divorce Maynard vacated the premises but she
continued to live there. Three weeks later Maynard moved back, and they lived there together
for over a year, till October 28, 1945. Plaintiff described the situation as follows: Well, to
begin with, when we were divorced, he moved out, and three weeks later moved back in, and
beat me so I couldn't work after that for quite a while, and he told me that he was going to
live there. Well, he kept me in such poor health that I was unable to do anything about it, and
then, when Mr. Thomas and I were married (six days after her final separation from Maynard,
November 3, 1945), why he refused to let me have the furniture, and when I did go out to get
it, December 6th of 1945, he dismissed the vanNevada Transfer van, and beat me rather
severely at that time. And he threatened me continuously; from the time when we were
divorced, until I was married to Mr. Thomas, I lived in constant fear of him. Till October 28,
1945, she was known as Mrs. Maynard, and did not exercise the right, given her in her
divorce decree, to resume the name of Heeren. Sometimes she paid the rent, sometimes
Maynard paid it. She filed no inventory of her separate property.
1
Forest M.

____________________

1
Sec. 3357, N.C.L. A full and complete inventory of the separate property of the wife * * * must be made
out and signed by her
Forest M. Nevans and his wife, Donnie Mae Nevans, the defendants, operated the Midway
Used Furniture company in Reno. About July 17, 1944, Maynard, plaintiff's husband, came
into the furniture store and purchased a bed, springs and mattress from Nevans on which he
paid $5 down and agreed to pay the balance of $20 on delivery. Nevans delivered the bed,
springs and mattress on that day to 767 Morrill Avenue in Reno, and the plaintiff, then Mrs.
Maynard, paid him the balance. Nevans testified to the following conversation with Mrs.
Maynard on that occasion:
Q. And now at that time, on July 17th, 1944, when you delivered that bed with the
springs and mattress, and received a balance on it, did you have any conversation with Mrs.
Maynard about anything else? A. Yes. She told me that she had a dining-room set that was
stored in the garage and wanted me to take a look at it. And we went out the front door, and
into this little side garage, and I said, Well, you better sell it, or do something with it,
because it is going to go to pieces sitting here in the garage like that.'
And she asked me to give her a price on it, and I made her an offer, and she says, Well, I
can't sell my furniture without talking to my husband. I will give you a ring later.
Well, I never heard anything from her. That was the last I ever heard from her.
The dining-room set referred to was part of the furniture in question in this case. On
different occasions after this transaction Nevans saw Mrs. Maynard around the yard a few
times. Neither Mr. nor Mrs. Nevans had ever heard that the Maynards had been divorced. On
March 29, 1946, Maynard came to the Midway Store and told Nevans that he had some
furniture in the warehouse, whereupon Nevans went to the warehouse with Maynard,
looked at the furniture, which included the dining-room set he had previously examined,
and agreed to purchase the furniture for $550, plus $29.52 storage charges, and paid
these amounts in two checks, one to Maynard and one to the storage company.
____________________
* * * and shall be recorded * * * in the office of the recorder of the country in which she resides * * *.
Sec. 3359, N.C.L. When the wife is a resident of this state, the failure to file for record an inventory of her
separate property * * * is prima facie evidence, as between the wife and purchasers in good faith and for a
valuable consideration from the husband, that the property * * * is not the separate property of the wife * * *.
told Nevans that he had some furniture in the warehouse, whereupon Nevans went to the
warehouse with Maynard, looked at the furniture, which included the dining-room set he had
previously examined, and agreed to purchase the furniture for $550, plus $29.52 storage
charges, and paid these amounts in two checks, one to Maynard and one to the storage
company. On the following day the plaintiff, having been informed that her furniture was at
the furniture store, went to the store and saw the furniture there. Mrs. Nevans asked her if she
were not Mrs. Maynard and she replied, No, I am not, nor have I ever been. She said that
she was Mrs. Thomas and that she knew Mrs. Maynard and that Mrs. Maynard wouldn't do
anything about it. Upon being asked by Mrs. Nevans what interest she had in the furniture,
she said that she had none whatever but that she was there in the interest of a friend. Plaintiff
advised Mrs. Nevans not to sell the furniture and then consulted her attorney, who telephoned
the furniture company not to sell the furniture because it was going through court action.
This was confirmed by a letter from plaintiff's attorney to the defendants. As required by a
Reno city ordinance, the defendants listed with the chief of police the furniture thus
purchased by them. This ordinance required that secondhand furniture thus purchased must
be held at least three days before sale. The defendants reconditioned the furniture and sold it
some four or six weeks later to other persons at a profit of about $420.
The plaintiff filed a replevin action against Maynard on March 18, 1946, alleging that he
had converted her separate property and had placed some of it in storage in Reno, Nevada.
She was unable to locate Maynard for service. She did not know where the property was until
she found it at the store of defendants.
The trial court found that the actual and fair value of the property was $975; that from
April 22, 1944 until November, 1945, plaintiff and Maynard lived together as husband and
wife at 767 Morrill Avenue; and that defendants knew that plaintiff and Maynard were so
living together; that when defendants bought the property they believed in good faith
that it was the community property of plaintiff and Maynard; and "that at all times
subsequent to the marriage of plaintiff and said Robert Jackson Maynard on the 22d day
of April, 1944 to and including the date of the purchase of said household goods from said
Robert Jackson Maynard by defendants on said 29th day of March, 1946, the plaintiff, to
the knowledge of the defendants, permitted said Robert Jackson Maynard to have the
control of said household goods, and by her conduct, actions and statements to represent
that said household goods were the community property of plaintiff and said Robert
Jackson Maynard."
defendants knew that plaintiff and Maynard were so living together; that when defendants
bought the property they believed in good faith that it was the community property of plaintiff
and Maynard; and that at all times subsequent to the marriage of plaintiff and said Robert
Jackson Maynard on the 22d day of April, 1944 to and including the date of the purchase of
said household goods from said Robert Jackson Maynard by defendants on said 29th day of
March, 1946, the plaintiff, to the knowledge of the defendants, permitted said Robert Jackson
Maynard to have the control of said household goods, and by her conduct, actions and
statements to represent that said household goods were the community property of plaintiff
and said Robert Jackson Maynard.
Appellant attacks the sufficiency of the evidence to sustain these findings. The briefs of
both parties devote considerable attention to their respective constructions of plaintiff's
statement to Nevans at the time plaintiff and her husband purchased the bed, springs and
mattress. She said, Well, I can't sell my furniture without talking to my husband. I will give
you a ring later. Appellant, with emphasis on the word my, insists that this was definite
information to Nevans that it was her separate property. Respondents, with emphasis upon
plaintiff's statement that she could not sell without talking to my husband, insist that this
was just as definitely a statement that the furniture was community property and that the use
of the word my is simply the common use under which both husband and wife refer to my
house, my car, my furniture and even my children. Appellant argues that when
plaintiff said that she could not sell her furniture until she talked to her husband, this simply
indicated that she, like any other good wife, desired to discuss the matter with her husband
before selling the same. The matter of the emphasis on the exact words used may not be too
convincing either way. The testimony as to this conversation was given at the trial in May,
1948, almost four years after the conversation took place, and it is extremely unlikely that
the precise words used could have been remembered by any of the parties with any
extreme degree of accuracy.
four years after the conversation took place, and it is extremely unlikely that the precise
words used could have been remembered by any of the parties with any extreme degree of
accuracy. Nevans however testified at the trial that when he subsequently bought the furniture
from Maynard he did not get in touch with Mrs. Maynard, because Maynard had the
furniture. She (Mrs. Maynard) told me at one time she couldn't sell the dining-room set of the
furniture without talking it over with him. When I saw the same furniture in there, I saw no
need in getting in touch with her, because it was in the warehouse. It was part of the same
furniture she showed me out on Morrill * * * July 17, 1944 * * * and it was for that reason *
* * I went ahead and bought the furniture * * * because I had made a price on it once before,
on part of it, and he told me that they were planning to take the money and take over some
crap table in Las Vegas * * * and he needed the money to have a bankroll to open up the crap
table with.
1, 2. There is no doubt but that the furniture (Nevada constitution, article IV, section 31;
N.C.L., sec. 3355) was the plaintiff's separate property of which she could not be divested
without her consent, unless by her conduct she was estopped from denying Maynard's
authority to sell it. It is equally clear that the wife may, without her husband's consent,
dispose of her separate property.
2
But it has been generally recognized that she may be, by
her actions, estopped from claiming lack of authority in her husband to dispose of it. 26
Am.Jur 738, Husband and Wife, Estoppel, sec. 114; 41 C.J.S., Husband and Wife, sec. 266,
page 746. It is true that the plaintiff did not forfeit her separate property by her failure to
record an inventory as required by sec. 3357, N.C.L., heretofore quoted in note 1. Her failure
to record the inventory could however be properly considered by the court as one
circumstance to be considered with the other evidence in the case.
____________________

2
N.C.L., sec. 3363. The wife may, without the consent of her husband, convey, charge, encumber, or
otherwise in any manner dispose of her separate property.
with the other evidence in the case. Petition of Fuller, 63 Nev. 26, 159 P.2d 579. This is
particularly so under the mandatory provisions of the Nevada statute in contrast with the
permissive provisions of other states. See, for example, Anderson v. Medbery, 16 S.D. 324,
92 N.W. 1089.
It is significant too that our former statute, N.C.L., sec. 10337, providing for the
restoration to the owner of all property obtained by larceny, robbery, burglary or
embezzlement and that the owner may maintain his action, not only against the felon, but
against any person in whose possession he may find the property, was amended in 1935,
Stats. Nev.1935, p. 370, to read: All property obtained by larceny, robbery, burglary, or
embezzlement, and found in the possession of the thief or embezzler thereof, or in the
possession of any receiver of stolen property shall be restored to the owner.
The amendment, it will be noted, restored the defense of a good faith purchaser, in a
proper case. It is true that these provisions occur under our Crimes and Punishment Act. We
have however likewise adopted the Uniform Sales Act and have provided, in part, in sec.
6757, N.C.L.: (1) Subject to the provisions of this act, where goods are sold by a person who
is not the owner thereof, and who does not sell them under the authority or with the consent
of the owner, the buyer acquires no better title to the goods than the seller had, unless the
owner of the goods is by his conduct precluded from denying the seller's authority to sell. * *
*
3. While the evidence of estoppel is not so convincing as in many other cases, we are
unable to say that the record is so devoid of substantial evidence as not to justify the court's
finding. The impression gained by the court from its observation of the witnesses on the
stand, their demeanor and their manner of testifying might well have been an important
element that moved the court to the conclusion reachedstrengthened, as this impression
apparently was, by the other facts which we have outlined.
we have outlined. The weight to be given to this evidence was exclusively a matter for the
trial court.
4. Appellant asserts that the replevin suit for the furniture instituted by plaintiff against her
former husband Maynard, in some way operated as a notice of lis pendens so as to put these
defendants on notice. The doctrine of constructive notice resulting from the filing with the
county recorder of a notice of lis pendens applies, under N.C.L., sec. 8577, only to actions
affecting real property. In any event, no notice of lis pendens was filed in the replevin suit.
5. Appellant also contends that the judgment in the divorce action of Maynard v. Maynard
was constructive notice to all persons that this particular furniture became the plaintiff's
separate property. It may be noted, first, that while it is true that the findings in the divorce
action found that there was no community property and that the furniture at 767 Morrill
Avenue was the plaintiff's separate property, neither the conclusions of law nor the judgment
and decree made reference thereto. Secondly, the filing was restricted to the usual docketing
and recording in the county clerk's office. Thirdly, only the judgment was so recorded in the
office of the clerk. The authorities cited by appellant, in which recorded judgments in actions
affecting real property were held to impart constructive notice to the parties and their privies,
have no application here.
Appellant, in her contention that as the legal owner of the furniture she had at all events a
right to recover the same from the defendants even though they acquired it in good faith for
value from Maynard, relies upon Robertson v. C. O. D. Garage Company, 45 Nev. 160, 199
P. 356, and Robinson v. Goldfield Merger Mines Co., 46 Nev. 291, 206 P. 399, 213 P. 103.
But in the latter case this court definitely recognized the application of the doctrine of
estoppel in a proper case, and in the former refused to consider the doctrine of estoppel for
the reason that it was raised for the first time on appeal, the case having been tried in the
trial court on the doctrine of actual authority conferred upon the agent by the owner.
been tried in the trial court on the doctrine of actual authority conferred upon the agent by the
owner.
Error is also assigned in the court's finding as to the value of the furniture. As we have
concluded that the judgment denying any relief to plaintiff must be affirmed, the point
becomes immaterial. We have given consideration to all points presented by appellant but
find no error.
The judgment and the order denying plaintiff's motion for a new trial are affirmed with
costs.
____________
67 Nev. 131, 131 (1950) State v. Murray
THE STATE OF NEVADA, Respondent, v. JOHN JOSEPH MURRAY, WALTER KISER,
and ANN MARIE KISER, Appellants.
No. 3538
March 1, 1950. 215 P.2d 265.
John Joseph Murray, Walter Kiser and Ann Marie Kiser were convicted in the Fifth
Judicial District Court, Mineral County, Wm. D. Hatton, Judge, of grand larceny, and they
appealed.
The Supreme Court, Badt, J., held that evidence supported convictions, and that trial court
did not err in its rulings on admissibility of evidence or in the giving or refusing of
instructions.
Judgment affirmed.
1. Larceny.
Evidence supported conviction of stealing of a heifer. N.C.L.1929, sec. 10325.
2. Criminal Law.
In prosecution for stealing of a heifer, statements made by defendant wife and defendant husband at time
when they were found in possession of the beef were a part of the res gestae and as such were admissible
despite fact that neither could be made a witness against the other. N.C.L.1929, sec. 8971.
3. Criminal Law.
Statements made by defendant wife and defendant husband when they were found in possession of beef
were not rendered inadmissible in prosecution for stealing of a heifer because they were not first warned
that their statements might be used against them. N.C.L.1929, sec. 10325.
4. Criminal Law.
In prosecution for stealing of a heifer, admission of carcass of cow in evidence was not improper on
ground that no proper foundation had been laid. N.C.L.1929, sec. 10325.
5. Larceny.
In prosecution for stealing of heifer cow, actual killing of cow was not an essential part of the charge of
taking and carrying away the cow, but shooting of the cow was a proper circumstance to be considered.
N.C.L.1929, sec. 10325.
6. Criminal Law.
In prosecution for stealing of heifer cow, admission of two boxes of shells, a knife scabbard, a single live
shell, a bullet taken from the cow, loose shells found in defendants' automobile, two knives and shells that
were removed from shell boxes or had fallen out in transit was not error on ground that no proper
foundation had been laid. N.C.L.1929, sec. 10325.
7. Witnesses.
In prosecution for stealing of heifer cow, trial court did not abuse its discretion in refusing to require
witness for State to answer question on cross-examination as to who had reliably informed him that there
was beef to be brought into certain town on night of alleged offense on ground that it was too far collateral
to the issues to be material. N.C.L.1929, sec. 10325.
8. Criminal Law.
If weight of testimony of one of deputy sheriffs was diminished by fact that he admitted that his memory
had been refreshed during a recess in the trial, it was a matter for jury to consider, and did not render
testimony of such deputy inadmissible.
9. Criminal Law.
In prosecution for stealing of heifer cow, testimony that went to condition of carcass of cow was proper
rebuttal of testimony given by one of witnesses that cow was puffed up and smelled bad when they first
noticed it. N.C.L.1929, sec. 10325.
10. Criminal Law.
In prosecution for stealing of heifer cow, admission of photograph of culvert and of highway near certain
town was not error, where photographs were properly identified and foundation fully laid. N.C.L.1929, sec.
10325.
11. Criminal Law.
In prosecution for stealing of heifer cow, photographs of culvert and of highway near certain
town were properly admitted as rebuttal, where defendants had testified at length at
describing same premises depicted in photographs.
culvert and of highway near certain town were properly admitted as rebuttal, where defendants had testified
at length at describing same premises depicted in photographs. N.C.L.1929, sec. 10325.
12. Criminal Law.
Defendants charged with stealing of heifer cow could not complain that they were denied right to show
intent, where defendants were permitted, over objections of State, to testify that they had no intention of
depriving owner of the cow or of stealing her. N.C.L.1929, sec. 10325.
13. Criminal Law.
Where not prohibited by statute, trial court may, in its discretion, in instructing jury, quote only such parts
of a statute as are relevant and applicable to the case.
14. Larceny.
Under law that a person feloniously stealing a cow belonging to some one else would be guilty of grand
larceny, there was no misstatement of law by adding instruction that such was the case regardless of
whether the cow was branded. N.C.L.1929, sec. 10325.
15. Larceny.
Under statute providing that a person who steals, takes and carries away cattle belonging to some other
person shall be deemed guilty of grand larceny, the combination of killing and taking of cow was not
necessary to constitute the crime. N.C.L.1929, sec. 10325.
16. Criminal Law.
Generally, it is not necessary to give exact language of statute if the language used defines the crime and
embodies all elements thereof.
17. Indictment and Information.
That part of amended information charging defendants with feloniously stealing, taking and carrying
away a yearling heifer cow which charged that said defendants did willfully and unlawfully kill the same
animal running at large was properly treated as surplusage in giving instruction to jury. N.C.L.1929, sec.
10325.
18. Criminal Law.
That part of instruction which informed jury that if the elements of the crime are not shown beyond a
reasonable doubt your verdict should be, not guilty was not objectionable as an invitation to jury to make
a finding of guilty.
19. Larceny.
In prosecution for stealing of heifer cow instruction that it was unnecessary for State to prove that any of
the defendants killed the cow, but that the killing of said heifer cow, if you find beyond a reasonable doubt
that it was killed, by the defendants or either of them, may be considered by you as a circumstance in
connection with all of the evidence in the case, was proper. N.C.L.1929, sec. 10325.
20. Criminal Law.
Instruction that when a man's conduct could be consistently, and as reasonably from the evidence,
referred to two motives, one criminal and the other innocent, it was for jury to presume that such conduct
was actuated by innocent motive and not criminal motive, but this presumption of innocence may be
overcome by proof beyond a reasonable doubt, was not objectionable on ground that quoted portion
served only to cloud an otherwise clear instruction.
21. Criminal Law.
Instruction that all persons concerned in commission of a felony, whether they directly commit the act
constituting the offense, or aid and abet in its commission, though not present, should be prosecuted as
principals was not prejudicial to one of the three defendants jointly tried on ground that it was only partly
in wording of statute, where inclusion of entire statute in the instruction would have been more damaging to
such defendant than the part given. N.C.L.1929, sec. 10869.
22. Criminal Law.
In prosecution for stealing of heifer cow, general instruction on intent was not prejudicial in view of
specific intent required by statute defining the offense. N.C.L.1929, sec. 10325.
23. Criminal Law.
In prosecution for stealing of heifer cow, instruction distinguishing between direct or positive testimony
of an eyewitness and circumstantial evidence was not objectionable as indirectly calling attention of jury to
killing of the cow, since killing of the cow was a circumstance which could be properly considered by jury.
N.C.L.1929, sec. 10325.
24. Criminal Law.
Refusal of defendants' requested instructions was not error, where substance of requested instructions was
covered by instructions given.
25. Criminal Law.
Shell of bullet picked up by deputy sheriff was not rendered inadmissible in subsequent criminal
prosecution because when witness picked up the shell he thereby destroyed possible latent fingerprints
thereon, where it did not appear that shell was intentionally tampered with.
26. Criminal Law.
In prosecution for stealing of heifer cow, where defendants testified that animal was dead and on the
verge of putrefaction when they found it, testimony of witness who examined carcass of the cow when it
was brought in by authorities to be placed in cold storage that carcass looked to him as if it had been
slaughtered was proper rebuttal testimony. N.C.L.1929, sec. 10325.
27. Criminal Law.
Jury's recommendation of leniency constituted no part of the verdict.
28. Criminal Law.
Jury's recommendation of leniency as to one of three defendants did not negative jury's finding that such
defendant was guilty beyond a reasonable doubt.
29. Criminal Law.
A statutory view of a place in which offense is charged to have been committed is not taking evidence
but is merely to enable jury more satisfactorily to weigh evidence given in court. N.C.L.1929, sec. 10989.
30. Criminal Law.
In prosecution for stealing of heifer cow, where carcass of the cow and automobile belonging to two of
the three defendants were marked as exhibits for identification, and later offered and admitted in evidence,
viewing of such exhibits by jury in the courthouse yard was not a statutory view. N.C.L.1929, secs.
10325, 10989.
31. Criminal Law.
In prosecution for stealing of heifer cow, admitting of carcass of cow and automobile belonging to two of
the defendants was not improper on ground that proper foundation had not been laid. N.C.L.1929, sec.
10325.
Carville & Carville, of Reno, for Appellants.
Alan Bible, Attorney General, W. T. Mathews, Special Assistant Attorney General, Geo. P.
Annand and Robert L. McDonald, Deputy Attorneys General, Leonard Blaisdell, District
Attorney of Mineral County, and Wm. M. Kearney, of Reno, for Respondent.
OPINION
Defendants, who are the appellants here, were found guilty of grand larceny by a jury in
the district court of Mineral County, and have appealed from the judgment and from the order
denying their motion for a new trial. They assign error in several particulars, but the third
assignment of error embraces numerous rulings of the trial court in the admission and
rejection of evidence and the fourth and fifth assignments of error include numerous orders of
the trial court in giving the jury instructions over the objections of the defendants and in
refusing instructions requested by the defendants.
jury instructions over the objections of the defendants and in refusing instructions requested
by the defendants. We have then to deal not only with a great number of assignments of error
but with a voluminous record made up in the course of a trial lasting some eleven days. The
facts are as follows:
Mina, in Mineral County, and Gabbs, to its north in Nye County, are approximately
forty-two miles apart and connected by a highway running in a general northerly and
southerly direction. Some nine miles north of Mina is Luning. The defendants Mr. and Mrs.
Kiser resided at Mina, and defendant Murray lived at a place known as Roberts Roadhouse,
some three miles south of Gabbs, where he was engaged as a bartender. About eighteen miles
south of Gabbs two large culverts or underpasses were constructed under the highway to carry
off flood waters from a canyon or wash known as Petrified Springs Wash, which comes down
from the southwest. These two culverts are sufficiently large to permit an automobile to drive
through.
About 7:30 p. m., October 30, 1947, one Dale Ritchie, an agent for the Shell Oil Company
and residing at Mina, was driving from Mina to Gabbs. As he approached and passed over the
culverts he noticed lights shining from the culvert upon the hillside east of the highway. He
stopped his car, walked back to the underpass and called down to see if there had been a
wreck, and if help was needed. He testifies that the reply was, No, we are looking for a road
out of here. His car, as noted, was facing north toward Gabbs. He returned to his car but
before starting, the car in the culvert came out, drove out to the highway, turned in front of
him and started south toward Mina. The car was the coupe belonging to the Kisers. Ritchie
proceeded a short distance toward Gabbs and saw a bunch of cattle beside the highway,
apparently frightened, closely packed together and with their heads up. Ritchie turned his car
around to follow the coupe and within the course of a mile or more met the coupe returning
toward Gabbs.
Gabbs. Again Ritchie turned on the highway and followed them. The coupe stopped at the
Roberts Roadhouse and Ritchie pulled up along side them. Under the rear deck or turtleback
of the coupe he saw a butchered beef of which the hind legs and tail were protrudingthe
cover of the turtleback being partly closed. Murray left the car and had with him two heavy
hunting knives which Ritchie demanded and received from him. Murray's hands were bloody.
Roberts, the proprietor, came out of the roadhouse and claimed the knives, but Ritchie
advised that they could be returned to him in due time. He told Mr. and Mrs. Kiser that they
would have to come with him to Mina. As above noted, Mina is in Mineral County while the
Roberts place was in Nye County. The Kisers drove to Mina and Ritchie followed in his own
car. On arrival, the beef, the knives and the car were delivered to the deputy sheriff at Mina.
The deputy sheriff awakened Roland Baker, who had a grocery store and butcher shop at
Mina, and the beef was taken from the car and placed in the icebox. Baker removed the heart
and lungs which were still in the carcass. The cow was in good condition and the heart and
lungs were still warm. It was later removed to a freeze plant at Hawthorne, and the meat was
in good condition and fit for human consumption at the time of the trial. The beef was
identified as a heifer a little over two years old and belonging to one W. J. Stinson. It was a
leppy calf whose mother had been killed on the highway, and had been raised on a bottle
and was something of a pet.
On the day following the discovery of the defendants with the beef in the Kiser coupe, the
officers made an investigation of the premises and followed automobile tracks identified as
made by the Kiser coupe through the underpass and westerly and southerly up the Petrified
Springs Wash for about a half mile and moccasin tracks circling from a point where the car
stopped to a hillside a short distance away where fresh entrails were found. The moccasin
tracks were definitely identified as made by Kiser's moccasins.
as made by Kiser's moccasins. At the spot was found an empty .22 long rifle shell case and an
unexploded .22 long rifle shell of the same make as numerous shells found in the Kiser car
and suitable for use in a rifle subsequently found in the Kiser home at Gabbs. No rifle or
other firearms were found in the Kiser coupe. The cow had been killed by a .22 calibre bullet
that was lodged in the back of the neck just behind the horns and which had apparently
penetrated the spinal column and which, as appeared from the powder burns in the hair, had
been fired at a range less than ten inches. Bloodstains on the Kiser coupe and on the rear
wheels and on the floor of the culvert or underpass where the coupe had stopped indicated
that blood had flowed from the carcass. The terrain where the entrails were found was rough
and rocky. A direct line from the entrails to the nearest point on the highway was about 300
feet, and the nearest point on the highway from which a man standing by the entrails could be
seen was about 630 feet.
Each of the three defendants testified in defense and did not dispute any of the foregoing
facts. The Kisers testified simply that they found the dead carcass of the cow about a half
mile from the highway, returned to the Roberts place where they borrowed the two hunting
knives and that Murray returned with them to assist them in bringing the cow in so that it
could be delivered to the proper authorities and its owner notified; that it could be preserved
if the meat proved to be good and otherwise could be cooked for dog meat. In support of this,
Mr. and Mrs. Kiser related how they had been taking a drive through the country (it being
Kiser's day off), had visited a number of places and were on their way home to Mina shortly
before sunset when they decided to pursue the old road under the culverts and up the wash for
the beauty of the scenery and their fond recollections of the place, for it was there that Mr.
Kiser had proposed; that their dog had been permitted to run loose and was barking at a place
on the hillside and that when Kiser went to investigate the cause, he found the heifer
dead; that it was bloated and he stuck it in the stomach with his pocketknife; that it
smelled badly; that they drove back to the Roberts place and Mr.
and that when Kiser went to investigate the cause, he found the heifer dead; that it was
bloated and he stuck it in the stomach with his pocketknife; that it smelled badly; that they
drove back to the Roberts place and Mr. Roberts ordered Murray to return with them and
assist them and gave them the two hunting knives; that they understood that the deputy sheriff
of Nye County would be at the Roberts place that evening and that they could deliver the
carcass to him; that they drove back in the coupe to the carcass where Murray made an
incision in the neck and opened the carcass and Kiser removed the entrails. (It was dark then
and Mrs. Kiser held a flashlight to assist in the work. The car lights afforded some light
although not shining on the carcass.) That before disemboweling the animal they tried to load
it into the coupe but were unable to do so and thought that it could be better done if
disemboweled; that they then loaded the cow in the car, drove back, stopped a few moments
under the underpass, and returned to the highway where their first intention was to deliver the
carcass to the authorities of Mineral County at Mina, but after driving a short distance,
decided it was best to turn back and deliver the carcass to the authorities of Nye County at
Gabbs, as Murray had in any event to return there to work; that they made no attempt at any
kind of concealment; that the hind legs and tail of the beef could be seen protruding from
under the rear deck; that they drove up to and parked in front of the Roberts place that was
brilliantly lighted; that they did not kill the animal and did not know how it was killed; that
they at no time had any firearms with them during their trip; that they at no time had any
intention of appropriating the animal to their own use or depriving the true owner of it. It was
also shown that during the afternoon another car was seen parked on the highway in the
neighborhood of the culverts. A number of witnesses testified to the good reputation of all of
the defendants. Appellants' brief describes the animal when found as being on the verge of
putrefaction.
One of the deputy sheriffs testified to Mrs. Kiser's statement as to finding the cow that stunk
to high heaven. Kiser also testified that the cow smelled pretty bad.
From the fact that the transcript covers almost a thousand pages of testimony it will be
seen that the foregoing resum is indeed brief. We believe however that it presents all of the
facts necessary for this opinion. It is apparent that the main facts adduced by the State were
not contradicted by the defendants. These include their possession of the butchered animal,
their participation in disemboweling it, their position under the highway when Ritchie drove
over, their possession of the knives with which the cow was disemboweled, their loading of
the animal into the Kiser coupe, their transportation of it to the Roberts place, their surrender
of the knives to Ritchie, their ownership of the .22 calibre shells in the car, their use of the
flashlight when removing the entrails. Their defense consisted entirely and solely of the
absence of any criminal intent. We now proceed to appellants' assignments of error.
1. Point I. It is asserted that the verdict is against the weight of the evidence. In this respect
attention is called to the circumstantial nature of the evidence and various discrepancies in the
testimony of several of the witnesses. All of this however was a matter for the jury, and it
cannot be said that the verdict was not based on substantial evidence.
Point II. Error is assigned in the court's denial of defendants' motion to dismiss at the close
of the State's case. This argument is directed particularly to defendant Murray. In this regard it
is necessary to examine the amended indictment brought by the grand jury. It reads as
follows:
In the above-named District Court, and the action entitled The State of Nevada, vs. John
Joseph Murray, Walter Kiser, and Ann Marie Kiser,' the District Attorney, Martin G.
Evansen, informs the Court that John Joseph Murray, Walter Kiser, and Ann Marie Kiser, did
on or about the 30th day of October, 1947, commit the crime of grand larceny, a felony,
committed as follows, to-wit: Said defendants did feloniously steal, take, and carry away
one long yearling heifer cow of the cattle variety, not their own property but belonging to
another person and that said defendants did wilfully and unlawfully kill the same animal
running at large not their own, the same being situate in the County of Mineral, State of
Nevada, all of which is contrary to the form, force, and effect of the statute in such case
made and provided, and against the peace and dignity of the State of Nevada."
did on or about the 30th day of October, 1947, commit the crime of grand larceny, a felony,
committed as follows, to-wit: Said defendants did feloniously steal, take, and carry away one
long yearling heifer cow of the cattle variety, not their own property but belonging to another
person and that said defendants did wilfully and unlawfully kill the same animal running at
large not their own, the same being situate in the County of Mineral, State of Nevada, all of
which is contrary to the form, force, and effect of the statute in such case made and provided,
and against the peace and dignity of the State of Nevada.
The statute under which the offense is charged is sec. 10325, Nevada Compiled Laws, and
reads as follows:
Every person who shall feloniously steal, take and carry, lead, drive or entice away any
horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of
cattle or horses or any sheep, goat, hog, shoat or pig, not his own property but belonging to
some other person; and every person who shall mark or brand, or cause to be marked or
branded, or shall alter or deface, or cause to be altered or defaced, a mark or brand upon any
horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or more head of
cattle or horses, or any sheep, goat, hog, shoat or pig, not his own property but belonging to
some other person, with intent thereby to steal the same or to prevent the identification
thereof by the true owner, or to defraud; and every person who, with intent to defraud, or to
appropriate to his own use, shall wilfully kill any animal running at large, not his own,
whether branded, marked or not; and every person who shall sell or purchase, with intent to
defraud, the hide or carcass of any animal the brand or mark on which has been cut out or
obliterated, shall be deemed guilty of grand larceny, and upon conviction shall be punished by
imprisonment in the state prison for any term not less than one year nor more than fourteen
years.
It will be noted from the foregoing section that there are four classes or categories, any one
of which will support a charge of grand larceny. The first attaches to carrying or leading away
the animal; the second to branding or defacing the brand on an animal; the third to killing an
animal running at large; and the fourth to the selling or purchasing an animal whose brand has
been cut out or obliterated. In each of these four classes the criminal intent must attach. It is
contented by counsel that under the indictment as drawn the killing of the cow as well as the
taking of it by the defendants was a necessary element of proof, and that it was obvious from
the evidence that Murray could have had no part in the killing. We have discussed this point
at further length under appellants' Point No. IV, in which appellants assign error in the
instructions to the jury, and we have found, as there noted, that the carrying away of the
animal with criminal intent was sufficient to support the charge.
2. Point III. Under subdivision A of this point, appellants list six instances in which they
contend that evidence was improperly admitted and that it was error to overrule their
objections to such evidence. The first applies to the admission of testimony by various
witnesses as to statements made by Kiser and Mrs. Kiser upon the ground that Kiser's
admissions incriminated his wife and that Mrs. Kiser's admissions incriminated her husband,
and that this was an indirect violation of the provisions of sec. 8971, N.C.L., which provides
that, A husband cannot be examined as a witness for or against his wife without her consent,
nor a wife for or against her husband without his consent. In neither case was the consent
given. It should first be observed that both the husband and the wife testified voluntarily on
behalf of all of the defendants. In a strict sense there was no examination of the wife as
against her husband or of the husband as against the wife. Secondly, it should be noted that in
voluntarily taking the stand, both Mr. and Mrs. Kiser testified almost verbatim to the
so-called admissions testified to by the other witnesses.
so-called admissions testified to by the other witnesses. This had to do with their statements
that they had found the cow dead, bloated and smelling, and took it without criminal intent,
but for the purpose of delivering it to the proper authorities.
In any event it is clear that the statements made, at the time when both Mr. and Mrs. Kiser
were found in possession of the beef, were a part of the res gestae and as such were
admissible despite the fact that neither could be made a witness against the other. State v.
Breyer, 40 Idaho 324, 232 P. 560; Blocker v. State, 118 Tex.Cr. 202, 40 S.W. 2d 803; Cook
v. State, 22 Tex.App. 511, 3 S.W. 749. The rule is recognized in 22 C.J.S. Criminal Law, sec.
662, n. 79.
3. It is also asserted under this assignment that no foundation was laid for testimony
concerning the statements of the defendants because they were not first warned that their
statements might be used against them. This assignment is not well taken. State v. Gambetta,
66 Nev. 317, 208 P.2d 1059.
4, 5. The second assignment, under subdivision A of point III, attacks in general language,
without reference to any particular parts of the record and without specifying the precise
nature of the error claimed, the admission of the cow in evidence and the admission of
testimony concerning the killing of the cow. The only objection made to the admission of the
carcass was that the proper foundation had not been laid. The foundation was, in our opinion,
ample. And although the actual killing of the cow was not an essential part of the charge of
taking and carrying away the cow, the shooting of the cow, as hereinafter more fully
discussed in consideration of the court's instructions to the jury, was a proper circumstance to
be considered.
6. The admission of two boxes of shells, a knife scabbard, a single live shell, a slug or
bullet taken from the cow, loose shells found in the car, two knives, and shells that were
removed from the shell boxes or had fallen out in transit is in each instance assailed as error.
In each instance the objection was made that the proper foundation had not been laid,
growing out of the alleged failure of the State to show the condition of these exhibits at
various times when they passed through various hands from the date of the alleged crime to
the time they were introduced in evidence. In varying degrees these items passed through the
hands of the sheriff and his deputies, were mailed to the F.B.I. and thereafter returned, etc.
We have carefully read the transcript of the testimony laying the foundation for the
introduction of each and every one of these exhibits. It will serve no purpose to review such
testimony at length. Suffice it to say that we consider the foundation sufficient in each case.
Each item was precisely identified, its connection with the defendants fully established, and
its care and presentation by the enforcement officers and its forwarding to and return from the
F.B.I. satisfactorily established. Rigid cross-examination of the witnesses by defendants'
counsel failed to elicit any indication of any change in condition of any of these articles. (A
special assignment of error in the admission of the live shell is discussed later.)
7. Under the third assignment under subdivision A of this point, appellants attack the
ruling of the court in sustaining the witness Ritchie in his refusal to answer the question as to
who had reliably informed him that there was to be beef brought into Gabbs on the night of
October 30, 1947. Counsel make no point of this other than that the defendants were
precluded by such ruling from impeaching or refuting this testimony, and that it must be
presumed that, if admitted, it would have been favorable to the defendants and unfavorable to
the State.
The witness had testified in answer to defendants' counsel on cross-examination that he
was going to the Finger Rock Cow Camp and described where this was. Counsel then asked,
Q. And what were you going up there for? A. Because I had been quite reliably informed
that there was to be beef brought into Gabbs that night and I was going to the cow camp to
notify the men at the camp."
the men at the camp. No objection was made to this testimony nor was any motion made to
strike it out. Counsel then asked: Q. Well, who told you that beef was going to be brought
into Gabbs that night? And the witness said that he could not answer as he had given his
word not to mention that person's name. He definitely refused to answer the question and the
court, on being asked to compel the witness to answer, ruled, that this particular inquiry is
too far collateral to the issues in the case to be legally material. We see no abuse of
discretion, under the circumstances, in the court's thus limiting the cross-examination and in
refusing to compel the witness to answer.
8. The fourth assignment under this subdivision attacks the testimony of one of the
deputies because the latter admitted that his memory had been refreshed during a recess. If the
weight of his testimony was diminished by the circumstance, this was a matter for the jury to
consider.
9. The fifth assignment under this subdivision complains that the admission of certain
testimony in rebuttal was improper. This testimony went to the condition of the beef and was
proper rebuttal of the testimony given by Mrs. Kiser that the cow was puffed up and smelled
pretty bad.
10, 11. Under the sixth assignment under this subdivision error is assigned for the
admission of photographs of the culvert and of the highway near Gabbs. The photographs
were properly identified and the foundation fully laid. The only further objection made was
that they were not proper rebuttal. The defendants had testified at length in describing the
same premises depicted in the photographs and the objection was properly overruled.
12. Subdivision B of point III complains that the court improperly limited the doctrine of
res gestae in rejecting certain evidence offered by the defendants. They say: Defendants
Kiser testified that they went to Gabbs, that Murray returned to the animal with them, and
that knives were obtained.
and that knives were obtained. They were not, however allowed to explain these actions
because of the illusive doctrine of res gestae formulated by the court. They say further that
they were denied the right to show intent. We are not referred to any part of the record in
which such offer of proof was made nor have we found any. We may note however that over
the objections of the State that intention must be gleaned from a person's actions, the
defendants were permitted to testify that they had no intention of depriving the owner of the
cow or of stealing her.
Appellants refer to State v. Hall, 54 Nev. 213, 13 P.2d 624, in which this court refused to
limit the doctrine of res gestae to matters precisely concurrent in point of the time involved in
the homicide there considered. It sustained the lower court in admitting evidence of a beating
administered by the appellant immediately after the shooting, despite the fact that this also
tended to show him guilty of another and distinct offense. The case furnishes no support of
the appellants' point. A reading of the entire record indicates no violation of the rule
expounded in the Hall case.
Appellants' Point No. IV embraces their exceptions to instructions given by the court.
Instruction No. 2 is first attacked. It is in the following words:
The law of the State of Nevada contains the following provision:
Every person who shall feloniously steal, take and carry * * * away any horse, mare,
gelding, colt, cow, bull, steer, calf * * * or any one or more head of cattle * * * not his own
property but belonging to some other person * * * with intent thereby to steal the same, * * *
not his own, whether branded, marked or not * * * shall be deemed guilty of grand larceny.
13, 14. Section 10325, N.C.L., from which the foregoing instruction was taken, is quoted
in full earlier in this opinion. Appellants do not question the well-recognized rule that, where
not prohibited by statute, the court may in its discretion, in instructing the jury, quote only
such parts of a statute as are relevant and applicable to the case.
quote only such parts of a statute as are relevant and applicable to the case. Appellants
complain however that the instruction is an absolute misstatement of the law and a
prejudicial misstatement because of the reference to branding. Much testimony was
addressed to the question of brands and earmarks. Under the unquestioned law that a person
feloniously stealing a cow belonging to some one else is guilty of larceny, there was no
misstatement of law by adding the instruction that such was the case whether the cow was
branded or not. If it were true, as contended by appellants, that the court garbled the statute,
picking out a word, phrase or sentence here and there, regardless of the general tenor and
scope of the statute, we should be prone to agree that appellants have just cause to complain.
We do not however find such to be the case.
15-17. Instruction No. 3 quoted to the jury that part of the amended information charging
the defendants with feloniously stealing, taking and carrying away one long yearling heifer
cow, etc., but omitting that part of the information charging and that said defendants did
wilfully and unlawfully kill the same animal running at large, etc. Appellants contend that in
such instruction the court garbled not only the tenor of the law but also garbled the
information in order to sustain a conviction. We have seen that under the statute the
felonious killing of a cow running at large on the range is a felony and that the felonious
taking and stealing of a cow, regardless of any killing, is likewise a felony. It is obvious that
the combination of the killing and taking is not necessary to constitute the crime. In State v.
Jones, 7 Nev. 408, in which the indictment did not contain all of the allegations that would
have made it conform precisely to the statute, this court held that, as the indictment contained
all the essential facts constituting the larcenyfacts which show that the taking was without
authority of law, and was unlawful, it was sufficient. Likewise in State v. Phipps, 52 Nev.
115, 282 P. 1024, 1026, where only part of a statute was included in the court's charge to
the jury, this court upheld the same as being "substantially in the language of the statute"
defining the offense.
included in the court's charge to the jury, this court upheld the same as being substantially in
the language of the statute defining the offense. The Phipps case and many others are cited
in 23 C.J.S., Criminal Law, sec. 1194, p. 743, in support of the general rule that it is not
necessary to give the exact language of the statute if the language used defines the crime and
embodies all the elements thereof. Such we find to be the case here, and appellants have
referred us to no authority suggesting the contrary. The particular objection coincides with
appellants' point No. II to the effect that the amended information as drawn required proof by
the State that the defendants killed the cow as well as carried her away, and that the court was
guilty of prejudicial error in regarding the allegation as to the killing as surplusage. This
appears to be the main point raised by appellants, and they cite in support thereof: State v.
Cushing, 61 Nev. 132, 120 P.2d 208; State v. Massie, 72 W.Va. 444, 78 S.E. 382, 47 L.R.A.,
N.S., 679; State v. Leonard, 171 Mo. 622, 71 S.W. 1017, 94 Am.St. 798; and Littell v. State,
135 Ind. 577, 33 N.E. 417. We find nothing in the Cushing case to sustain this contention. In
the Massie case it was properly held that the court could not regard as surplusage a part of the
indictment which negatived the offense of [72 W.Va. 444, 78 S.E. 383] obstructing a public
road by allegation of facts showing that it was a private road. So also in the Leonard case the
additional matter in the indictment, if true, negatived the allegation of the commission of the
offense. The Littell case quotes with approval Bishop on Criminal Procedure to the effect that
surplusage in an indictment cannot be rejected if it shows no offense was committed, or that
otherwise the prosecution is not maintainable, [133 Ind. 577, 33 N.E. 420] and distinguished
a number of cases in which allegations were properly treated as surplusage. Here the
allegation of the killing of the cow in no way negatived the crime of carrying it away. The
treatment by the court of the allegation of the killing, as surplusage, left enough to constitute
a valid charge of the offense.
constitute a valid charge of the offense. The court instructed the jury that the defendants were
charged with the felonious stealing of the cow and this was the crime of which they were
found guilty.
18. Instruction No. 4 is as follows:
If you find from the evidence, beyond a reasonable doubt that on or about the 30th day of
October, 1947, in Mineral County, State of Nevada, the defendants, or either of them, did
feloniously steal, take and carry away one long yearling heifer cow, not the property of
themselves or either of them but belonging to some other person, with intent thereby to
appropriate the same to their own use and deprive the owner thereof, then you should find the
defendants, or either of them, as the proofs may show, guilty.
If the elements of the crime are not shown beyond a reasonable doubt, your verdict
should be, not guilty.
Feloniously,' means, done with a mind bent on doing that which is wrong, or with a
guilty mind.
Appellants' only objection to this instruction is that the sentence If the elements of the
crime are not shown beyond a reasonable doubt, your verdict should be, not guilty, is an
invitation to the jury to make a finding of guilty. We cannot see that such is the case, nor
does it appear that this particular sentence could have been prejudicial to the defendants. The
instruction is also claimed to be erroneous in eliminating the element of the killing of the
cow, a matter that we have heretofore disposed of.
19. The court's instruction No. 5 definitely instructed the jury that it was unnecessary for
the State to prove that any of the defendants killed the cow, but that the killing of said heifer
cow, if you find beyond a reasonable doubt that it was killed, by the defendants or either of
them, may be considered by you as a circumstance in connection with all of the evidence in
the case. Defendants complain that after days of testimony about bullets, slugs, powder
burns, and other evidence which could do nothing but inflame the passions and prejudices of
a jury," it developed for the first time in the denial of defendants' motion to dismiss that
proof of the killing was unnecessary, that such part of the information was surplusage
and that the killing could be considered as a circumstance in connection with the charge
of taking and carrying away.
a jury, it developed for the first time in the denial of defendants' motion to dismiss that proof
of the killing was unnecessary, that such part of the information was surplusage and that the
killing could be considered as a circumstance in connection with the charge of taking and
carrying away. We are referred to no authorities in support of this contention, and must
conclude that none such can be found.
20. Instruction No. 7 was given as follows:
The jury are instructed that when a man's conduct may be consistently, and as reasonably
from the evidence, referred to two motives, one criminal and the other innocent, it is your
duty to presume that such conduct is actuated by the innocent motive and not the criminal.
This presumption of innocence may be overcome by proof beyond a reasonable doubt.
The inclusion of the last sentence is assigned as error. Appellants assert that this serves
only to cloud an otherwise clear and clean-cut instruction. The sentence itself is not claimed
to be a misstatement of law, and it is clearly a correct statement of law. It was properly given.
It is definitely approved in 53 Am.Jur., 527, Trial, sec. 686. See also Agnew v. United States,
165 U.S. 36, 17 S.Ct. 235, 41 L.Ed. 624.
21. The court gave instruction No. 8 as follows:
The Laws of Nevada contain the following provision:
All persons concerned in the commission of a felony, whether they directly commit the
act constituting the offense, or aid and abet in its commission, though not present, shall
hereafter be prosecuted, tried and punished as principals.
Appellants claim that this was particularly prejudicial to defendant Murray and say: After
a reading of this instruction the jury could have no recourse but to find the defendant Murray
guilty, which it did. It is claimed also that the instruction is only partly in the wording of the
statute, sec. 10869, N.C.L. The portions of the statute not included in the instruction negative
any distinction between an accessory before the fact and a principal, and eliminate the
necessity of any other allegation against an accessory than are required against his
principal.
tinction between an accessory before the fact and a principal, and eliminate the necessity of
any other allegation against an accessory than are required against his principal. The inclusion
of the entire section in the instruction would have been more damaging to appellant Murray
than the part given, and he is in no position to complain.
22. Appellants also assign instruction No. 9 as error. It was given in the following words:
In every crime or public offense, there must exist a union or joint operation of act and
intention, or criminal negligence.
Intention is manifested by the circumstances connected with the perpetration of the
offense, and the sound mind and discretion of the person accused.
The intent with which an accused person appropriates money or property to his own use
is a question of fact to be determined by the Jury from the evidence in the particular case.
It is contended that such general instruction on intent was prejudicial in view of the
specific intent required by the statute as quoted in instructions 2 and 4 above discussed. We
find no error in the instruction. The use of the words or criminal negligence is likewise
subject to attack, but we find nothing prejudicial in the use of these words.
23. Appellants assign as error the giving of instruction 10, which defines the two
recognized classes of evidence, namely, the direct or positive testimony of an eye witness and
circumstantial evidence. Appellants do not claim that the instruction as given is not good law,
but that it indirectly calls the attention of the jury to the killing of the cow. This we have
treated elsewhere in our holding that the court was justified in its instruction that evidence of
the killing could be considered as a circumstance in connection with the other elements of
proof.
24. Under point V appellants assign error in the court's refusal to give certain requested
instructions.
court's refusal to give certain requested instructions. Requested instruction No. 2 covered the
necessity of proving intent but was covered by another instruction.
Requested instruction No. 3 was to the effect that none of the defendants could be found
guilty unless it was proved beyond a reasonable doubt that they killed the cow, besides taking
and carrying her away. As noted, such is the appellants' principal point in this appeal, raised
on the motion to dismiss, the motion for new trial, the request for instructions and elsewhere
throughout the trial and in the presentation of the appeal to this court. We hold adversely to
this contention.
Appellants complain of the court's refusal to give their requested instruction No. 25. This
is identical with the given instruction No. 7 heretofore discussed, except that it does not
contain the sentence This presumption of innocence may be overcome by proof beyond a
reasonable doubt. As we have approved instruction No. 7 as given, no further discussion is
necessary.
Appellants complain of the refusal to give their requested instruction No. 26. It covered
the question of intent and would simply have been a matter of repetition. State v. Willberg, 45
Nev. 183, 200 P. 475. Appellants refer us to State v. Ward, 19 Nev. 297, 10 P. 133, but we
find nothing in that case to support this assignment of error.
Appellants assign as error the court's refusal to give their proposed instruction No. 27
explaining the duty of the jury with reference to rejected evidence, etc., and its province of
weighing the evidence admitted, etc. The only statement in support of the assignment of error
is that an identical instruction was given in a federal case in this district. It is however
substantially the same as instruction 11 given by the court.
Appellants' requested instruction No. 28 was: The court instructs the jury that a
reasonable doubt may be created by the failure on the part of the state to prove an essential
item of its crime. In instruction 12 the court instructed the jury among other things: The
burden rests upon the prosecution to establish every element of the crime with which the
defendant is charged, and every element of the crime must be established beyond a
reasonable doubt."
burden rests upon the prosecution to establish every element of the crime with which the
defendant is charged, and every element of the crime must be established beyond a reasonable
doubt.
Defendants' requested instructions Nos. 29 and 30, which the court refused, would again
have made it necessary for the state to prove that the defendants had killed the cow before a
verdict of guilty could be reached. We have heretofore disposed of this phase of the case.
25. Point VI. Appellants assign error in the court's denial of defendants' motion to strike
the testimony of Deputy Sheriff Vidovich with reference to his picking up a single live shell
near the cow between three and four o'clock in the morning under a bush, with the aid of a
flashlight, and to strike the admission of the shell in evidence. It was urged that when the
witness picked up the shell he thereby destroyed possible latent finger prints thereon. The
record does not indicate that this piece of evidence was intentionally tampered with and the
fact that it was thus picked up did not render it inadmissible.
26. Error is likewise assigned, because the court denied defendants' motion to strike the
testimony of the witness Fontaine who examined the carcass of the cow when it was brought
in to be placed in cold storage. He was asked if he believed the animal was slaughtered.
Having been qualified by the State to express his opinion, he said that the carcass looked to
him as if it had been slaughtered. Appellants claim that this was not proper rebuttal, but it is
clearly rebuttal of the testimony of the defendants to the fact that the animal was on the verge
of putrefaction when they found it. Fontaine's testimony indicated that it was a freshly killed
animal that had at least been bled and dressed.
27, 28. Under point VII it is said by defendants' counsel that when the jury returned the
verdict of guilty it was stated by the foreman that the jury recommended leniency or
extreme leniency for the defendant Murray. The record discloses no recommendation of
leniency.
leniency. Counsel concede this to be so, but assert that the transcript is woefully inadequate
and that even though it was returned by appellants to the reporter in July, 1948, for correction
and the corrected transcript was not returned by the reporter until December, 1948, it still
contained many omissions and inaccuracies, among them being the omission of the
recommendation for leniency. The condition of the record is the subject of much discussion
in the briefs, and the State, while expressing the desire to adhere to the theory that all cases be
heard on their merits, State ex rel. Dept. of Highways v. Pinson, 65 Nev. 510, 199 P.2d 631,
66 Nev. 13, 201 P.2d 1080, assert that the record was neither filed nor served within required
periods of time so as to give this court jurisdiction of the appeal. As we have concluded that
the judgment must be affirmed, we have not found it necessary to consider at length the
respective contentions with reference to the preparation, service and filing of the record. It
very patently leaves much to be desired. Counsel for the State do not deny that after the
verdict was returned the foreman announced the jury's recommendation for leniency for
Murray, but do deny any recommendation of extreme leniency. But even if the
recommendation of leniency appeared in the record, it would not serve appellant Murray. In
Kramer v. State, 60 Nev. 262, 108 P.2d 304, appellant urged that when the verdict
recommending leniency was returned, it was the trial court's duty to ascertain what was meant
and intended, but this court, citing State v. Stewart, 9 Nev. 120, held that the recommendation
of leniency constituted no part of the verdict. This, in our opinion, is a complete answer to
appellants' contention that the trial court in the instant case should have caused the jury to
reconsider its verdict. Nor can we agree with appellants, assertion that the leniency
recommendation negatives the finding of the jury that Murray was guilty beyond a
reasonable doubt.
Assignment of error No. VIII refers to the court's denial of the motion for a new trial.
Under this assignment no grounds are urged that have not been heretofore discussed.
ment no grounds are urged that have not been heretofore discussed.
29-31. After all briefs of the parties had been filed, appellants filed a Petition to have
court consider and decide constitutionality of Section 10989, N.C.L.1929; also to correct
error prejudicial to defendants' constitutional rights during progress of trial, with brief in
support thereof. Respondent served and filed a notice of motion to strike the petition. Upon
the submission of the case on the merits of the appeal, the petition and motion were also
ordered submitted. The petition had to do with the jury's viewing of the Ford coupe and the
cow's carcass in the courtyard of the courthouse. The motion to strike is denied. The petition
is also denied. Section 10989, N.C.L., is the section authorizing the court in a proper case to
order a view by the jury of the place in which the offense is charged to have been
committed, or in which any other material fact occurred. Neither the section nor its
constitutionality or applicability is in any way involved in the case. No view in the sense of
the statute was had. The carcass of the cow and the Ford coupe were both marked as exhibits
for identification, and later offered and admitted in evidence. Too bulky to be brought into the
courtroom, they were left in the courthouse yard in the custody of the sheriff, and there
viewed by the jury. They constituted important evidence in the case and were constantly
referred to by witnesses both for the State and for the defendants through hundreds of pages
of the testimony. A statutory view is not taking evidence but is merely to enable the jury
more satisfactorily to weigh the evidence given in court. State v. Hartley, 22 Nev. 343, 40 P.
372, 28 L.R.A. 33; State v. Merritt, 66 Nev. 380, 212 P.2d 706. The view of the cow's carcass
was at the special request of the defendants, whose request that it be skinned out was also
complied with. On one day of the trial the carcass was brought into the courtyard, and the
wheels ordered replaced on the Ford coupe, at defendants' request. The only objection made
to the admission of either of these items in evidence was that the proper foundation had
not been laid.
only objection made to the admission of either of these items in evidence was that the proper
foundation had not been laid. The foundation was more than ample and the objection was
properly overruled. The petition presents for our consideration nothing outside of the
limitations of appellants' assignments of error, prejudicial to their rights, duly brought to the
attention of the trial court, as disclosed by the record on appeal. State v. McNeil, 53 Nev. 428,
4 P.2d 889; State v. Lewis, 59 Nev. 262, 91 P.2d 820; State v. Merritt, 66 Nev. 380, 212 P.2d
706. The authorities submitted by appellants in support of their petition are not in point. The
present case is clearly distinguishable from State v. Merritt, 66 Nev. 380, 212 P.2d 706, both
as to the point of law involved and as to the facts. Here there was no question as to the Kisers'
ownership of the coupe or the fact that the beef was in possession of all the defendants. In the
Merritt case evidence was unlawfully taken out of court without the presence of the
defendant, under the claimed sanction of sec. 10989, N.C.L., as part of the proof that the
defendant had unlawfully altered the brand on the animal.
We have carefully examined the entire record and all of the points raised by appellants, but
we find no prejudicial error and are satisfied that there was ample evidence to sustain the
jury's verdict. The judgment and the order denying new trial are hereby affirmed.
April 12, 1950. 216 P.2d 606.
1. Criminal Law.
Recommendation of leniency constituted no part of verdict, and incorrect statement by
supreme court in original opinion that record did not disclose a recommendation of
leniency was not ground for disturbing judgment of affirmance.
Rehearing denied.
Carville and Carville, of Reno, for Appellants.
Annand and Robert L. McDonald, Deputy Attorneys General, Leonard Blaisdell, District
Attorney of Mineral County, and Wm. M. Kearney, of Reno, for Respondent.
OPINION
Per Curiam:
Defendant Murray alone has petitioned for a rehearing. In the original opinion we
incorrectly stated that the record did not disclose a recommendation of leniency for Murray.
The record does show that the foreman of the jury indicated that the jury did recommend
leniency for Murray. Our original opinion later, however, did state that the recommendation
of leniency constituted no part of the verdict. State v. Stewart, 9 Nev. 120. With the above
correction, the motion for rehearing is denied.
____________
67 Nev. 158, 158 (1950) Close v. Redelius
HAZEL CLOSE Appellant, v. R. REDELIUS,
Respondent.
No. 3587
March 6, 1950. 215 P.2d 659.
Action by R. Redelius against Hazel Close for commission on sale of real estate. From a
judgment of the Second Judicial District Court, Washoe County, William McKnight, Judge,
department No. 1, in favor of plaintiff, the defendant appealed. The Supreme Court, Horsey,
C. J., held that evidence sustained determination that defendant after listing the property for
sale at a price which would net defendant $20,000, refused to sell at a price of $21,200 and
that, defendant having still later sold the property to the same buyer for $20,000 was liable
upon quantum meruit for commission.
Order denying motion for new trial, and judgment affirmed.
Appellate court could not weigh conflicting evidence as to right of broker to commission.
2. Brokers.
In action by broker for commission on sale of real estate which was listed to net owner $20,000, evidence
sustained determination that owner had prevented sale at $21,200 and was sufficient to sustain recovery of
commission in amount of $1,200.
3. Brokers.
Where property was listed with broker to sell at a price which would net owner $20,000, and thereafter
owner refused to sell at $21,200 but still later completed a sale to the same buyer at $20,000, broker was
entitled to recover commission upon quantum meruit.
Bert M. Goldwater and David Goldwater, Reno, for Appellant.
Kendrick Johnson, Reno, for Respondent.
OPINION
The appeal in the instant case is from the judgment rendered and entered on the 16th day
of May, 1949, in department No.
department No. 1 of the Second judicial district court of the State of Nevada, in and for the
county of Washoe, by the Honorable William McKnight, district judge, and from the district
court's order denying defendant's motion for a new trial.
In connection with our study of the record in the instant case, we have carefully read and
considered, among other things, the opinion and decision of the court below, and have been
much impressed by the statement of facts, comments and conclusions included therein, and
can do no better than quote in detail therefrom, as follows:
Opinion and Decision
Plaintiff brought an action to recover the sum of $1,200.00, alleged to be due for his
services as a licensed real estate agent in procuring a purchaser for property of defendant,
known as the Paradise Beauty Salon, in Reno, Nevada. From a judgment against defendant as
prayed, defendant has moved for a new trial, has filed objections to the findings of fact and
conclusions of law submitted by plaintiff, and has proposed other findings of fact and
conclusions of law.
The different phases of the matter have been argued so seriously by defendant's counsel
that a complete statement of the facts is deemed necessary.
On June 24, 1947, defendant orally listed the Paradise Beauty Shop, in Reno, Nevada,
with the plaintiff, a licensed real estate broker, through plaintiff's agent, Sally Clark, also a
licensed real estate broker, exclusively, without limit as to time, for sale, to net defendant
$20,000.00. Defendant stated to Sally Clark; Sally, I have spent $11,000.00 remodeling this
place and putting in new equipment, and I have to have for my share, $20,000.00,' whereupon
Sally Clark replied: Well, all right, Hazel, of course, we have to add our fee to that, which is
ten percent on all business deals, and ten percent of $20,000.00 is $2,000.00 making it
$22,000.00.' Terms were not discussed, other than defendant first stated that she would like
cash, and I might come down a little on that price, but I have to get awful close to
$20,000.00.' In response to the question, 'What is the lowest amount down,' propounded
to defendant by Sally Clark, defendant replied: 'The least I will take down will be
$5,000.00, I will take a piece of income property or a house because I could rent it, Sally.'
Defendant then stated that she was paying $250.00 on a note for $5,000.00, and that the
purchaser would have to make those payments.
on that price, but I have to get awful close to $20,000.00.' In response to the question, What
is the lowest amount down,' propounded to defendant by Sally Clark, defendant replied: The
least I will take down will be $5,000.00, I will take a piece of income property or a house
because I could rent it, Sally.' Defendant then stated that she was paying $250.00 on a note for
$5,000.00, and that the purchaser would have to make those payments. An inventory of the
place was then made by defendant and Sally Clark, so that plaintiff would have a record.
(Plaintiff's Exhibit D.) Thereupon the property was listed in plaintiff's record book, as an
exclusive listing, for sale for $22,000.00.
Plaintiff thereafter advertised the property for sale in the Reno papers for a period of
about six weeks. Mrs. Carma D. Wygant, of Winnemucca, Nevada, read the advertisement,
and, after first telephoning for information regarding the beauty shop and being informed by
Sally Clark that the information could not be given on the telephone because it was an
exclusive,' called at plaintiff's office on August 13, 1947. Mrs. Wygant was then shown the
property by Sally Clark, and was quoted the price of $22,000.00. Mrs. Wygant wanted to pay
less, offering to pay $20,000.00, and they compromised on a price of $21,200.00, whereupon
Mrs. Wygant issued a check for $200.00, payable to plaintiff, subject to her husband's
approval of the property.
On August 17, 1947, Mrs. Wygant and her husband called at plaintiff's office, and were
shown the property by Sally Clark, after which Mr. Wygant gave Sally Clark a check, payable
to plaintiff, for the sum of $4,800.00, and he and his wife signed a paper agreeing to purchase
the property for $21,200.00, and in which they agreed to pay defendant the sum of
$20,000.00, payable as follows: the sum of $5,000.00 in cash, they to assume and pay the
$5,000.00 obligation against the property, and to pay the sum of $10,000.00 at the rate of
$150.00, or more, a month, with interest at the rate of 6 per cent per annum. (Plaintiff's
Exhibit A.)
This offer could not be shown to defendant immediately, because she was then very ill in
the hospital and could not see anyone. However, a few days after the offer, Sally Clark left
the agreement with defendant's sister to show to defendant.
Mr. and Mrs. Wygant directed the bank to stop payment on the check for $4,800.00, until
they got the inventory on it,' whereupon the bank attached a paper to the check reading:
Payment Refused until deal goes through.'
On August 29, 1947, plaintiff telephoned to Mrs. Wygant, at Winnemucca, Nevada,
about stopping payment on the check for $4,800.00, and Mrs. Wygant stated: Because Mrs.
Hazel Close had not signed her acceptance of $21,200.00, the offer, she had been advised to
stop the transaction, and regardless of that, * * * you continue on that, we want the place; * *
* to keep in contact with Mrs. Close and see if they could not get it.'
Defendant returned to her home from the hospital about August 31, 1947. A few days
thereafter the signed agreement was shown to defendant at her home by Sally Clark who then
said to defendant: Hazel, you no doubt, have seen the agreement,' whereupon defendant
replied: Yes, I have seen it. I have not made up my mind yet about it.' Sally Clark then said:
Of course, you have read the agreement,' and defendant said: Yes.' Defendant said she
would think it over and let Sally Clark know. Sally Clark then said: We have to do
something about this, one way or the other and we have waited quite a while for your answer
and these people are anxious for your answer.'
The plaintiff then called upon defendant at her home, and had a conversation with her
with reference to the matter, and defendant said: Yes, I am well informed. I have been
informed by my sister.' Defendant said she was not sure; that things had changed since I have
been in the hospital and my sister advises me against it, and I would prefer you people try to
sell the Marinello Beauty School.' "Plaintiff never told Mrs.
Plaintiff never told Mrs. Wygant that the deal was off, but she and her husband just
figured we could not get it; * * * that plaintiff could not produce it for us.'
On Sunday, the day of the Water Follies,' (which in fact was September 7, 1947) Mr. and
Mrs. Wygant came to Reno from Winnemucca, to see the Water Follies.' As they were then
very anxious to buy this place for $21,000.00,' they called upon defendant at her home. They
wanted to meet Mrs. Close and talk about the Paradise Salon.' They then told the defendant
that if she ever wanted to sell, to let us know.' The defendant said the beauty salon was not
for sale at present and she would let us know if the doctor said she would not be able to
handle it.' They did not discuss the terms of the sale with defendant, but defendant
mentioned, if she decided to sell, could we get cash for that, and we told her we could. We
have property here and we could have borrowed the balance. * * * We just figured it was
$21,200.00 we would have to give.' Mr. and Mrs. Wygant did not have $21,200.00 ready at
any time in cash, but they could always have gotten it; they could have borrowed it from the
bank.'
On September 8, 1947, Attorney George Lohse, representing Mr. and Mrs. Wygant
phoned to plaintiff and wanted to know why the deal had not been closed, and, finally, he
suggested that plaintiff had better send the $200.00 back to Mrs. Wygant. Plaintiff thereupon
drew his check for $200.00, and handed it to Attorney Lohse's Secretary. (Plaintiff's Exhibit
B.)
About October 1, 1947, defendant and Herbert P. Graffam, a real estate salesman
employed by plaintiff, discussed the fact that the Wygants were still very much interested in
the purchase of the Paradise Beauty Salon, and defendant at that time told said salesman that
if the deal was consummated that she would put it through plaintiff's office.
Defendant did not, however, thereafter even attempt to put the deal through plaintiff's
office. Instead, defendant's sister telephoned to the Wygants, in Winnemucca, on or about
October 2, 1947, and told them that defendant 'wanted to sell the place.' On the following
Sunday, about October 5, 1947, Mr. and Mrs.
on or about October 2, 1947, and told them that defendant wanted to sell the place.' On the
following Sunday, about October 5, 1947, Mr. and Mrs. Wygant came to Reno, and called
upon defendant at her home to see about the purchase. They did not make an offer to
defendant. Defendant said what she wanted, she wanted $20,000.00.'
Defendant also said, I would have to have $8,000.00 immediately and $1,000.00 in sixty
days, and I would have to have $250.00 per month thereafter.'
On October 10, 1947, an agreement was drawn by attorney J.T. Rutherford at the request
of defendant, covering the sale of said property from defendant to Mr. and Mrs. Wygant, for
the sum of $20,000.00, payable $8,000.00 down, $1,000.00 within sixty days and $11,000.00
in monthly installments of $250.00 a month, or more, with interest at the rate of six per cent
per annum on the monthly balance remaining unpaid, said monthly installments of $250.00 to
include both principal and interest, and which agreement also provided that:
It is further agreed by and between the Seller and the Buyers that the said Buyers will
pay any and all commissions of real estate agents or others, which may be now due or which
may hereafter become due incidental or relative to the consummation of the sale and/or
purchase of said Paradise Beauty Salon.' (Defendant's Exhibit 1).
Defendant submitted this agreement to Mrs. Wygant, who handed it to Attorney W. M.
Kearney for examination. After more discussion between defendant and the Wygants,
Attorney Kearney drew an agreement, which provided that the Wygants purchase the Paradise
Beauty Shop from the defendant for the sum of $20,000.00, payable as follows: the sum of
$8,000.00 in cash, the sum of $1,000.00 in sixty days, Arlington and Urban lots of the agreed
value of $7,500.00, and the balance of $3,500.00 at the rate of $250.00 per month. Nothing
about any real estate commission was mentioned in this agreement.
Prior to the closing of this deal, plaintiff learned that defendant was dealing direct with
the Wygants for the sale of the Paradise Beauty Salon.
sale of the Paradise Beauty Salon. He thereupon asked defendant to come to his office, and
upon learning the terms of the contemplated sale, advised defendant not to make it, and
informed her that if she went ahead with the deal that she would have to pay his office the
commission of $1,200.00. The defendant then attempted to have the purchasers pay the
commission, but they absolutely refused to do so. She then attempted to have them pay
one-half of the commission, but they likewise refused. Defendant then closed the deal,
knowing that plaintiff would insist upon the payment of $1,200.00, and knowing that the
purchasers would pay no part of it; and she stated to Mr. Kearney, the attorney for the
purchasers, that she would take care of the real estate fee if it ever came up;' and she
admitted to others her obligation to pay to plaintiff the commission of $1,200.00.
The above facts are, in my opinion, clearly established by the evidence, although they are,
in some respects, contrary to the testimony of defendant and her witnesses. Where in conflict
with the above facts, the testimony of defendant and her witnesses cannot be, and is not,
accepted as true.
Counsel for defendant have filed a brief, in which they state:
* * * the plaintiff promised and agreed to accept as payment for his services any sum
over and above $20,000.00 cash for the sale of the Paradise Beauty Salon. It was understood
and agreed by plaintiff and defendant that $20,000.00 cash was to be paid net to the defendant
and defendant agreed that plaintiff might retain any sums over and above that amount. The
contract was a special contract with a condition that defendant should receive $20,000.00 net
cash and there were no promises on the part of defendant to pay a commission nor was there
any general brokerage listing of the premises.'
It is true that defendant listed the property with plaintiff for sale, to net defendant
$20,000.00, but it is not true that this sum was to be paid in cash. At the time of said listing,
defendant stated: The least I will take down will be $5,000.00, I will take a piece of
income property or a house because I could rent it, Sally.' Defendant also then stated that
she was paying $250.00 a month on a note for $5,000.00, and that the purchaser would
have to make those payments.
take down will be $5,000.00, I will take a piece of income property or a house because I
could rent it, Sally.' Defendant also then stated that she was paying $250.00 a month on a note
for $5,000.00, and that the purchaser would have to make those payments. Nothing was said
regarding the terms of payment for the remaining $10,000.00.
If the offer made by the Wygants, through plaintiff, to which defendant made no
objection, but simply stated, in effect, that she did not then desire to sell, did not comply
literally with the price and terms stated by defendant, it certainly was in substantial
compliance therewith.
Where a purchaser is produced by the broker in substantial compliance with the terms of
the agreement, and the owner makes no objection to the terms of the offer of purchase or the
details of performance, but simply declares that he does not now desire to and will not sell his
land, he is estopped, after suit is brought upon the agreement, to shift his position and defend
upon objections to details that the broker might have supplied or corrected if they had been
mentioned by the owner when the offer of purchase was made. Braniff v. Baier, 101 Kan.
117, 165 P. 816, L.R.A. 1917E, 1036, 1939; 12 C.J.S., Brokers, 95, page 224, note 49; see,
also: Moss v. Warns, 245 Wis. 587, 15 N.W. 2d 786, 787 [156 A.L.R. 598]; Sherwood v.
Rosenstein, 179 Minn. 42, 228 N.W. 339.
But, if it can be assumed that the plaintiff cannot recover until he shows that he found a
buyer who was ready, willing and able to purchase the property for a sum in cash, sufficient
in amount to net the defendant $20,000.00 and enable plaintiff to receive as his compensation
all in excess of that sum, then it is clearly established by the testimony of Mrs. Wygant that
plaintiff is entitled to judgment in the sum of $1,200.00.
Mrs. Wygant testified, in effect, that she and her husband did not have the sum of
$21,200.00 in cash at any time, but that they could always have borrowed it from the bank;
that they informed defendant, in response to her inquiry, that they could pay cash for the
property; and they 'just figured it was $21,200.00 we would have to give.'
her inquiry, that they could pay cash for the property; and they just figured it was $21,200.00
we would have to give.'
The purchaser must be able to buy; and the word able means financially able. This
does not mean, however that such purchaser must have all the money in his immediate
possession or to his credit at a bank, but only that he must be able to command the necessary
funds to close the deal within the time required.' Laack v. Dimmick, 95 Cal.App. 456, 273 P.
50, 55; Hersh v. Garau, 218 Cal. 460, 23 P.2d 1022, 1025; Philbrick v. Chase, 95 N.H. 82, 58
A.2d 317, 3 A. L. R.2d 526, 530; C. O. Frick Co. v. Baetzel, 71 Ohio App. 301, 47 N.E. 2d
1019, 1021. See, also: Hays v. Goodman-Leonard Realty Co., 146 Miss. 766, 111 So. 869,
870; McCabe v. Jones, 141 Wis. 540, 124 N.W. [486] 487.
In support of his contention that the evidence does not warrant a judgment in favor of
plaintiff, counsel for defendant insists, in effect, that where a broker's contract of employment
provides for a net price to the owner, the broker to receive as his compensation the sum in
excess of such net price which is paid, an actual sale for an amount exceeding the net price
must be made before the broker is entitled to any compensation.
It is wholly unnecessary to now review the cases cited by defendant's counsel, because
not a single one of them holds that the broker is not entitled to compensation when, as in this
case, the sale for an amount in excess of the agreed net prices was prevented by the fault of
the owner. If, in fact, such a sale was so prevented, the broker is clearly entitled to
compensation. Ramezzano v. Avansino, 44 Nev. 72, 81, 189 P. 681; Murphy v. W. & W.
Live Stock Co., 26 Wyo. 455, 187 P. 187, 189 P. 857, 860; Burdett v. Parish, 185 Mo.App.
605, 172 S.W. 620, 623; Weiss v. Northern Dredge & Dock Co., 155 Md. 351, 142 A. 253,
257; 9 C.J., Brokers, pages 587-589, sec. 85, note 10; 12 C.J.S., Brokers, pages 180-182,
83, note 2; Note 43 A.L.R. 1111; 128 A.L.R. 432; 8 Am.Jur., Brokers, sec. 141.
In Burdett v. Parish, supra, the court in speaking of contracts which provided that the
agent's compensation shall consist of the sum at which the agent may sell the property in
excess of a net price to the principal, said [185 Mo.App. 605, 172 S.W. 623]:
But in none of the reported cases is the right of the principal to sell at the fixed price to a
buyer introduced by the agent recognized as unqualified. The principal must act in good faith
toward his agent, and is not allowed, while the agent's authority stands unrevoked, and he is
laboring in good faith to make a sale at a price that will give him a commission, to
fraudulently or improperly interfere with the agent by selling to the buyer produced by the
agent at the fixed net price. * * * Such employment necessarily implies that the principal will
give the agent a fair chance to earn a commission, and will not interfere until he has had a
reasonable opportunity to sell at a profit to himself and has failed. Where the principal
ignores such right of the agent and, rushing in, sells to a buyer produced by the agent at the
fixed net price, or for less, he is in no position to urge that the agent failed to produce a
customer ready, able, and willing to buy at a greater price, and therefore is not entitled to a
commission, since that would allow him to take advantage of his own wrongful invasion of
the agent's contractual rights. In such a case the principal would be liable to the agent on the
theory that his own unwarranted interference prevented the agent from earning a reasonable
commission.'
This case is removed from the general rule invoked by counsel for defendant, by the acts
of the defendant in preventing plaintiff from selling the property to the purchasers for the sum
of $21,200.00, and in selling the property to the persons procured by plaintiff for the sum of
$20,000.00 when those persons were ready, able and willing to pay the sum of $21,200.00.
The sum of $1,200.00 being slightly more than one-half of the charge usually made by a
broker for selling business property from which the owner receives the sum of $20,000.00, is
certainly a reasonable sum to be paid plaintiff for the services rendered by him, said
services being reasonably worth that sum.
sum of $20,000.00, is certainly a reasonable sum to be paid plaintiff for the services rendered
by him, said services being reasonably worth that sum.
Counsel has cited some cases from other jurisdictions in support of his contention that
Where a contract is expressed and special, there can be no quantum meruit recovery.' It is not
necessary to discuss those authorities, because they are opposed to the contrary and more
equitable rule' which prevails in Nevada. Burgess v. Helm, 24 Nev., 242, 249, 51 P. 1025;
Oliver v. Little 31 Nev. 476, 479, 103 P. 240; Warren v. Glasgow & Western Exploration
Co., 40 Nev. 103, 108, 160 P. 793, 794; Maitia v. Allied Land & Live Stock Co., 49 Nev.
451, 465, 248 P. 893, 897; Paterson v. Condos, 55 Nev. 134, 142, 28 P.2d 499, 500; Berrum
v. Georgetta, 60 Nev. 1, 5, 93 P.2d 525, 526, 98 P.2d 479.
Therefore, defendant's motion for a new trial should be, and the same hereby is, denied.
Defendant's objection to the Cost Bill is sustained as to the amount of Sheriff's fee for
serving summons in Humboldt County, upon the ground that it is not a proper charge. Her
objection to the item of $12.00, paid to the secretary of the attorney for defendant for copy of
deposition of plaintiff taken by defendant, is not sustained, because that is clearly a proper
charge.
Defendant's objections to the findings of fact and conclusions of law submitted by
plaintiff are overruled, and defendant's proposed findings of fact and conclusions of law are
denied and refused.
Dated May 16, 1949.
Wm. McKnight
District Judge.
1, 2. Referring to the evidence, it is not our province in the appellate court to weigh the
evidence, but on the contrary, to determine whether or not in the instant case, in which there
is conflict, there is substantial evidence to establish the essential facts. This we have done in
the instant case, and have found from the evidence that same is clearly sufficient to justify
the findings and conclusions of the court below.
that same is clearly sufficient to justify the findings and conclusions of the court below.
Counsel for the appellant (defendant) has stressed the difference between an ordinary
brokerage listing agreement and a special agreement in the nature of a unilateral contract,
whereby, as to the latter, the defendant promised and agreed to deliver certain property, the
beauty parlor known as Paradise, 225 West 1st Street, Reno, Nevada, to a purchaser,
providing she received $20,000 cash net to herself. In connection therewith, in the Opening
Brief of Defendant and Appellant, it is asserted, on page 11, as follows: It would be well to
determine the nature of the agreement between the plaintiff and the defendant before
proceeding further. This is not a case of a general brokerage listing contract whereby there is
a promise on the part of an owner to pay a commission to a broker for obtaining a purchaser
who is ready, willing and able to purchase the owner's property. This is a special agreement
between plaintiff and defendant in the nature of a unilateral contract whereby defendant
promised and agreed to deliver her property to a purchaser providing she received $20,000.00
cash net to herself. Her only promise and agreement was that the plaintiff might retain any
excess over her net price as his own. It was, therefore, a special agreement entirely dependent
upon plaintiff's performance to furnish a customer so that defendant could net $20,000.00 in
cash. The compensation of plaintiff in this case was clearly fixed by the contract between the
parties. Such contracts whereby the broker receives the excess over the price named are
common * * *.
The language employed above would operate to disregard entirely any right or obligation
on the part of the broker resulting from his having been the procuring cause of a sale as
between the owner and the purchaser, even though the owner and the purchaser proceeded to
carry out such transaction without affording the broker any fair opportunity to earn his
commission. This is not the law, at least it is not in accordance with such cases as Burdett
v. Parish, supra, and which has been quoted from at length by Judge McKnight, nor is it
the law as found by our own Nevada cases, particularly Ramezzano v.
not the law, at least it is not in accordance with such cases as Burdett v. Parish, supra, and
which has been quoted from at length by Judge McKnight, nor is it the law as found by our
own Nevada cases, particularly Ramezzano v. Avansino, supra.
In connection therewith, respondent's attorney, Kendrick Johnson, Esq., in the Answering
Brief of Plaintiff and Respondent, has stated:
The Nevada case of Ramezzano v. Avansino, 44 Nev. 72, is not in point for the appellant,
for the court states on page 84, paragraphs 7 and 8 [189 P. 681]:
It is well settled that if property is placed in the hands of a broker for sale at a certain
price and a sale is brought about through the broker as a procuring cause, he is entitled to his
commission on the sale, even though the negotiations are conducted through the owner, who,
in order to make a sale accepts a price less than that stipulated to the broker.'
In the present opinion, it is our view, in comparing the attitude of the respective parties,
that, from a moral standpoint alone, Mrs. Wygant was seriously in fault. It is true that she had
demanded that the $200 deposit theretofore delivered by her to Mr. Redelius be returned, and,
technically, at least, and perhaps legally, she was free to disregard completely the transaction
she and her husband had entered into with Mr. Redelius. But morally, even equitably, Mr.
Redelius had served as a broker in bringing the parties together, and had treated her with
proper and due courtesy and consideration, and her acts and conduct in relation to the
transaction in question, together with that of Mrs. Close, as owner, had the effect of
preventing Mr. Redelius from being accorded any reasonable opportunity to earn his
commission. Indeed, Mrs Wygant's persistent action in repeatedly refusing to pay the
commission, or even one half thereof, necessarily caused Mrs. Close to be compelled either to
refuse to make the deal, or to pay the commission, or in the alternative to leave the matter in
default, insofar as the right of Mr. Redelius was concerned.
In the circumstances, while we have indicated that Mrs. Wygant's action was not
commendable, being highly unethical and unfair, it was Mrs. Close who, in a legal sense,
owed the duty properly to compensate Mr. Redelius for his services as a broker, by paying
him his commission, provided Mrs. Wygant refused to pay same, and Mrs. Close,
nevertheless, carried through the transaction. Mr. Redelius, by virtue of the listing agreement,
was entitled to a commission, which was only six percent, instead of the usual ten percent,
and the relationship between Mrs. Close and Mr. Redelius not having been terminated. Mrs.
Close could not legally, or equitably, rid herself of such obligation, and her only proper
course would have been to state, unequivocally, to Mrs. Wygant that she, Mrs. Wygant, must
either agree to pay the commission, or at least to pay one half thereof in accordance with Mrs.
Close's offer to her, or else that she, Mrs. Close, would decline to enter into the contract. This
she failed to do.
Mrs. Wygant testified that, in connection with closing the transaction, Mrs. Close stated to
Mr. Kearney, the attorney for the purchasers, that she would take care of the real estate fee if
it ever came up.
Mrs. Close, in her testimony on cross-examination, stated, in answer to a question
propounded by Mr. Johnson, plaintiff's attorney:
Q. (Mr. Johnson) You did affirmatively state that you would pay it? A. No, I did not say I
would pay it. I said, with my bad luck I would probably have to pay it. (Italics mine.)
In view of the fact that Mrs. Close was willing to pay one half of the commission, at one
point in the negotiations, and at another time, just when the deal was being closed, in Mr.
Kearney's office, stated she would probably have to pay it, it appears that what she said was
at least tantamount to stating that she realized her obligation to pay the commission, but that
she had not affirmatively so stated.
The attorneys for the appellant have contended that "where a contract is expressed and
special, there can be no quantum meruit recovery," and cited authorities from other
jurisdictions in support of that contention.
where a contract is expressed and special, there can be no quantum meruit recovery, and
cited authorities from other jurisdictions in support of that contention. And Judge McKnight,
in his able opinion, on page 12, hereinbefore quoted, has stated: It is not necessary to discuss
those authorities, because they are opposed to the contrary and more equitable rule' which
prevails in Nevada, and, in that connection, has enumerated and cited the six Nevada cases
hereinbefore set forth, on page 12 of his said opinion, and it is unnecessary to repeat them.
3. We feel that these authorities, heretofore decided by this court and listed in Judge
McKnight's opinion, above quoted, have represented, from time to time, the views of a
considerable number of the justices of this court, and that they constitute ample authority to
justify respondent's recovery upon quantum meruit.
This court is of the opinion that the lower court's findings, conclusions and judgment in
the matter of costs are correct and without error.
It is, therefore, hereby ordered that the final judgment rendered, entered and filed in the
lower court May 16, 1949, and that court's order denying defendant's motion for a new trial,
be, and the same hereby are affirmed.
Badt, J., and Eather, J., concur.
____________
67 Nev. 173, 173 (1950) Dunn v. Tax Commission
JAMES ALBERT DUNN, Doing Business Under the Fictitious Name of NEVADA
PUBLISHING COMPANY, Appellant, v. NEVADA TAX COMMISSION, Respondent.
No. 3591
March 15, 1950. 216 P.2d 985.
Action by James Albert Dunn, doing business under the fictitious name of Nevada
Publishing Company, against the Nevada Tax Commission, for declaratory judgment as to
validity of St.1949, c. 152, which provided for licensing the business of supplying horse
racing information received from sources outside the state. From a judgment of the First
Judicial District Court, Ormsby County, Clark J. Guild, Judge, in favor of defendant, the
plaintiff appealed. The Supreme Court, Badt, J., held that the statute did not deny due process
or restrain liberty of the press, or operate in a nonuniform manner, or unlawfully regulate
interstate commerce.
Judgment affirmed.
1. Statutes.
Where statute purports to be an exercise of the police power, recital in statute that it is for the public
interest is persuasive only, and not controlling.
2. Gaming.
Statute which provided for licensing the business of supplying horse racing information was not subject
to attack on the ground that it was an improper exercise of police power in that purpose of the statute was
to benefit race track books and was not for protection of the public or in the public interest. St.1949. c.
152; U.S.C.A.Const.Amend. 14. sec. 1.
3. Gaming.
The statute which provides for licensing the business of supplying horse racing information is a proper
and reasonable exercise of the police power. St.1949, c. 152.
4. Constitutional LawGaming.
The statute making it unlawful for any person, firm, corporation, or association to supply or disseminate
by any means information received from any source outside of the state concerning horse racing when such
information is to be used for purpose of maintaining and operating any gambling game, without first having
obtained a license, was sufficiently explicit in describing the persons subject to its provisions
as not to violate due process.
in describing the persons subject to its provisions as not to violate due process. St.1949, c. 152;
U.S.C.A.Const. Amend. 14, sec. 1.
Requirement in statute which provides for provides for licensing the business of supplying horse racing
information that any licensed disseminator furnish such information to any licensed race horse book or
sports pool operator applying therefor is not so indefinite, uncertain, or discriminatory as to violate due
process. St.1949, c. 152, sec. 4; U.S.C.A.Const. Amend. 14 sec. 1.
Statute providing for licensing the business of supplying horse racing information and authorizing state
tax commission to fix rates to be charged did not restrain liberty of the press in violation of state
Constitution. St.1949, c. 152; Const. art. 1, sec. 9.
7. Statutes.
The statute providing for licensing the business of supplying horse racing information is of general
uniform operation, and is not a law of special operation in violation of the Constitution because its
application depends on receipt of information from outside the state, and upon exclusion of public utilities
from its operation. St.1949, c. 152; Const. art. 4, sec. 21.
8. Commerce.
State statutes enacted under police power to protect public health, morals, safety and welfare, and which
affect interstate commerce only incidentally, do not violate the commerce clause. U.S.C.A.Const. art. 1,
sec. 8.
9. Commerce.
Statute which provides for licensing the business of supplying horse racing information received from
sources outside the state does not regulate interstate commerce in violation of commerce clause. St.1949, c.
152; U.S.C.A.Const. art. 1, sec. 8.
Statute which provides for licensing the business of supplying horse racing information received from
sources outside the state does not discriminate in favor of local race horse gambling, in view of other
statutes enacted by same session of legislature regulating races within the state. St.1949, cc. 152, 195, 231;
U.S.C.A.Const. art. 1, sec. 8.
Statute providing for licensing the business of supplying horse racing information received from source
outside the state and authorizing state tax commission to fix rates to be charged was not unreasonable,
arbitrary, capricious or discriminatory, or so devoid of a real and substantial relation to the regulation
attempted as to be invalid. St.1949, c. 152; Const.Nev. art. 1, sec. 9; art. 4, sec. 21; U.S.C.A.Const.
art. 1, sec. 8; Amend. 14, sec. 1.
12. Gaming.
Revenue provisions of statute providing for licensing the business of supplying horse racing information
received from sources outside the state and authorizing state tax commission to fix rates to be charged were
not unrelated to exercise of the police power nor did they defeat such exercise. St.1949, c. 152.
13. Constitutional Law.
If methods used for taxation and regulation do not exceed constitutional limitations, and if regulations
appear reasonably intended to achieve results sought, court may not substitute its judgment for that of
legislature, no matter how drastic the regulations appear to be.
Where license fees were impounded pending disposition of case in which validity of licensing statute was
challenged, the supreme court upon upholding validity of the statute would direct district court to make
necessary orders so that impounded funds might be paid forthwith to proper officials for deposit in general
fund of the state, in accordance with provisions of the licensing statute. St.1949, c. 152.
Louis V. Skinner, of Reno, for Appellant.
Annand and Robert L. McDonald, Deputy Attorneys General for Respondent.
OPINION
This case and No. 3592 (Cohen v. Nevada Tax Comm., 67 Nev. 199, 216 P.2d 998), in
which Frank Cohen doing business under the fictitious name of Oner Publishing Company
appeals from an adverse judgment in favor of the same respondent, are in all respects
identical with reference to the points of law raised. Accordingly the opinion and order in this
case likewise dispose of the appeal in No. 3592.
The sole issue determined by the district court and the sole issue presented in this appeal is
that of the constitutionality of chapter 152 of the Nevada Statutes of 1949, page 326,
entitled: "An Act regulating and providing for the licensing of the supplying and
dissemination of horse racing information; defining the powers and duties of the Nevada
tax commission with reference thereto; authorizing and empowering the Nevada tax
commission to fix the rates charged for the dissemination of such information; providing
penalties for violation thereof; and other matters properly relating thereto.
of 1949, page 326, entitled: An Act regulating and providing for the licensing of the
supplying and dissemination of horse racing information; defining the powers and duties of
the Nevada tax commission with reference thereto; authorizing and empowering the Nevada
tax commission to fix the rates charged for the dissemination of such information; providing
penalties for violation thereof; and other matters properly relating thereto.
1
This act was
approved March 26, 1949. Chapter 93 added to the gambling games licensed by the gambling
act of 1931. (Faro, monte, roulette, keno, fan-tan, twenty-one, black jack, seven-and-a-half,
big injun, klondyke, craps, etc.) the operation of any race horse book or sports pool; or * * *
any information service the primary purpose of which is to aid the placing or making of
wagers on events of any kind."
____________________

1
Section 1. It shall be unlawful for any person, firm, corporation, or association in this state to supply or
disseminate in this state by any means information received from any source outside of this state concerning
horse racing when such information is to be used by the user for the purpose of maintaining and operating any
gambling game and particularly any horse race book, without first having obtained a license so to do as in this
act provided. The provisions of this section shall not be construed to include in its operation any public utility
operating in the State of Nevada.
Sec. 2. The Nevada tax commission shall have the power and jurisdiction to regulate and control the
business of supplying and disseminating information by such means concerning horse racing, and to issue
licenses to such disseminators, and to suspend or revoke such licenses, in accordance with reasonable rules and
regulation to be made and promulgated by the tax commission, and the Nevada tax commission hereby is
empowered to make such rules and regulations, as may be necessary for the orderly administration of this act and
for the protection of the public and in the public interest.
Sec. 3. Any disseminator of such information obtaining a license under this act shall pay to the Nevada tax
commission the sum of ten dollars ($10) per day for each and every day for each and every horse race book to
which such supplier or disseminator shall furnish such information in this state. The Nevada tax commission
shall cause all moneys so paid to it to be deposited in the general fund of the state.
Sec. 4. Any disseminator of such information obtaining a license under this act hereby is required to furnish
such information to any licensed race horse book or sports pool operator applying to such disseminator therefor,
and the same shall be furnished by such disseminator as adequately and efficiently as the same is furnished to
any and all other users of such information furnished by such disseminator.
Sec. 5. The Nevada tax commission shall have the power and
book or sports pool; or * * * any information service the primary purpose of which is to aid
the placing or making of wagers on events of any kind.
Prior to this the legislature in 1945, Stats. 1945, chap. 248, p. 492, had amended the
gambling act of 1931 to require a state gambling license in addition to the former county
gambling license, and also added to the fixed fee for each particular type of game a license
fee amounting to 1 percent of all the gross revenue of such applicant exceeding three
thousand dollars ($3,000) quarterly. In 1947, Stats. 1947, chap. 223, p. 734, further
amendments were made including an increase in the license fee from 1 percent to 2 percent of
the gross revenue.
2
We should mention at this time, although further discussion is
reserved to a later part of this opinion, that the legislature of 1949 also passed an act to
regulate horse racing in Nevada, establishing a racing commission, etc., and repealing the
prior act of 1915, covering this subject matter.

____________________
jurisdiction to fix, regulate and control the rates to be charged by any disseminator of such information;
provided, however, that such rates shall be just and reasonable. It shall be unlawful for any disseminator of such
information to increase directly or indirectly the rate charged by such disseminator to any user of such
information in excess of the rate charged by it to such users as of March, 1 1948, without first applying to the
Nevada tax commission for permission to increase such rate. In no event shall the Nevada tax commission allow
any rate increase for the purpose of including in such rate charged to the user of such information the license fee
herein required to be paid by such disseminator. In the event of any such application to increase the rate to be
charged the Nevada tax commission shall give notice thereof to the user or users of such information concerned
and to all persons interested and shall consider the application at a public hearing. If the rate or rates charged by
the disseminator are found by the Nevada tax commission to be unjust or unreasonable the Nevada tax
commission hereby is empowered to reduce the same to a reasonable and just rate. Any user of such information
may apply to the Nevada tax commission for a reduction in the rate charged to such user and the Nevada tax
commission likewise may consider such application at a public hearing after notice thereof to the disseminator
and to all persons interested.
Sec. 6. If any provision of this act or the application thereof to any person or circumstance shall be held
invalid. such invalidity shall not affect the provisions or application of this act which can be given effect without
the invalid provision or application, and to this end the provisions of this act are declared to be severable.
Sec. 7. Any person or firm, association or corporation, or any of their officers or agents, violating any of the
provisions of this act shall be guilty of a felony, and upon conviction thereof shall be punished by a fine of
$5,000 and/or imprisonment in the state penitentiary for a term not to exceed five years.

2
The act of 1945, creating a license tax of 1 percent of the gross
We should mention at this time, although further discussion is reserved to a later part of
this opinion, that the legislature of 1949 also passed an act to regulate horse racing in Nevada,
establishing a racing commission, etc., and repealing the prior act of 1915, covering this
subject matter. Stats. 1949, chap. 195, p. 416. The same legislature passed an act regulating
pari-mutual betting and prohibiting certain other forms of betting and repealing former acts in
conflict. Stats. 1949, chap. 231, p. 507. This parade of gambling legislation and additional
gambling acts hereinafter referred to is necessary in order to understand and to dispose of the
present attack on chapter 152 of the 1949 session quoted in full in the margin.
Appellant, following a preliminary discussion of chapter 152 as a penal statute subject to
strict construction and a discussion of the nature of appellant's business as a disseminator in
this state of horse racing information received from a source outside of this state to users in
this state, including horse racing books, and as such coming clearly within the purview of the
act, attacks the latter on the following grounds:
(1) That it is arbitrary, oppressive and capricious, beyond the power of the legislature to
impose, and denies due process in violation of section 1 of the fourteenth amendment to the
Constitution of the United States.
(2) That it is a restraint of liberty of the press in violation of article 1 of section 9 of the
state constitution.
____________________
revenue, became a law March 28, 1945, without the governor's signature. Governor Carville's letter returning
this act to the legislature, thus permitting it to become a law without his signature by reason of lapse of time,
explained that this type of taxation was a departure from the fixed past policy of the state even though the tax
was supported by the argument that the gambling business is in an entirely different category from what we
may, for the mere sake of differentiation, term legitimate business. Letter printed in Stats.1945, p. 495.
Fourteen years before that in State ex rel. Grimes v. Board of Commissioners, 53 Nev. 364, 1 P.2d 570, this
court had fixed the category of the gambling business, not for the mere sake of {3) That it is differentiation
from legitimate business, as definitely having deleterious tendencies.
(3) That it is a law of special and nonuniform operation in violation of section 21 of article
IV of the state constitution.
(4) That it is a regulation of interstate commerce in violation of section 8 of article I of the
federal Constitution.
Before discussing these four grounds of attack the nature of the business regulated must be
understood. Respondent's brief contains an outline of furnishing wire service. Appellant
does not appear to question the accuracy of this outline, but recites the legislative history of
chapter 152 from its first introduction on March 14, 1949 to its approval by the governor
March 26, 1949 as disclosed by the legislative journals, and insists that the record is thus
devoid of any evidence, in the form of investigation, committee hearings, committee reports
or otherwise that material such as that presented in respondent's brief was presented to or
considered by the legislature in enacting the legislation. It would however be folly for this
court to plead judicial ignorance of the situation. We might go further and even recognize the
nomenclature used in the business. Thus we have the run-down or work sheet, the
scratch sheet, the call, the bookies, the morning line, hang on, lay-off,
off-time, post-time, service spot, drops, etc. If these expressions seem strange
3
outside of a state that permits all types of gambling, including the placing of bets through the
horse race books on race meets in all the big tracks of the country, they are perhaps no more
strange than terms used by the psychiatrists in insanity-defense murder cases that come before
us for review, nor than the nomenclature used by those circles who are reframing for the
nation the purposes and methods of public school education. Yet what person of general
knowledge and reading may plead ignorance of the latter?
____________________

3
For recognition of the meaning of these terms recourse must be had to the esoteric knowledge of the
breeders, owners and interested followers of the Sport of Kings' rather than to the lexicographers. Schmuck, J.,
in Armstrong Racing Publications v. Moss, 181 Misc. 966, 43 N.Y.S.2d 171, 173.
what person of general knowledge and reading may plead ignorance of the latter? And so we
feel entirely justified in accepting respondent's outline of the industry which this legislation
seeks to regulate and control. It is as follows:
For a number of years certain firms and associations have engaged in a business within
the State of Nevada known as furnishing wire service' to those engaged in horse race
book-making in gambling establishments. The method of carrying on such business is
substantially as follows:
One large association or corporation is the source of all racing news furnished to
gambling establishments within the United States. This organization maintains at all the
principal tracks of the country, representatives who gather the necessary news regarding the
races. The representative, prior to the race, secures such information as the names of the
horses entered, their jockeys, owners, trainers, weights carried, and any horses that have been
scratched' or withdrawn from the race. This information is then sent over a teletype service
of the Western Union to franchise holders at various points throughout the United States. In
Las Vegas and in Reno, certain parties hold franchises, which confer upon such parties the
right to receive such news. This teletype news is received by each of the persons or
associations holding a franchise in a central news dispensing room. At this central point is
maintained a receiving teletype machine and a microphone connected with wires to all
gambling establishments within the particular city receiving the so-called wire service. The
information received by teletype is by the franchise holder then broadcast over the wires to
the various gambling halls receiving such service. The information broadcast through the
microphone can be supplied to all the gambling establishments in a particular city at one time
or one or more can be cut off from the source of news by the man operating the microphone
at any particular time. A gambling establishment desiring to receive the service applies to
the person holding the franchise within the city and this person or association either
grants or refuses such services.
service applies to the person holding the franchise within the city and this person or
association either grants or refuses such services. If he agrees to furnish the services, he enters
into an agreement by which the franchise holder will receive a flat weekly sum as rental or in
some instances, a percentage of the gross or net returns from the horse racing book of the
particular gambling establishment. The franchise holder in some gambling establishments
operates the book itself. If service is granted to a particular establishment there is installed
either by or at the direction of the franchise holder a wire to the particular gambling house
and a loud speaker therein. This wire is in turn hooked in with the central news distribution
room of the franchise holder and to the microphone that has been heretofore mentioned. The
representative of the news gatherer at the track, in addition to transmitting the information
heretofore mentioned, gives almost instantaneous news of the race itself and the events
leading up to and following it, which are of interest to bettors. Just prior to the race he gives
the estimated odds as shown at the track, the condition of the track, etc. At the beginning of
the race he transmits a description of the race as the horses reach the post, their progress
during the race, the final winners and the odds payable on the pari-mutuel machines at the
track on the particular winner or winners. All this information is sent out in a series of
teletype messages. It is received in the central rooms of the various franchise holders as
mentioned above. A man is there maintained who speaks into the microphone and relays the
same information received over the teletype to the various gambling establishments, who
have contracted for the service. The gambling establishments maintain boards in their
gambling rooms, which show the races being held at the various tracks throughout the United
States and part of the information received over the microphone. The patrons of the gambling
house bet on particular horses the same as they would at the tracks and ordinarily receive the
tracks' odds if they win. The news that comes into the gambling establishment from over
the microphone gives the patrons of the gambling house, almost instantly, information of
the beginning of the race, the progress thereof, the winners and the odds payable.
news that comes into the gambling establishment from over the microphone gives the patrons
of the gambling house, almost instantly, information of the beginning of the race, the progress
thereof, the winners and the odds payable. The service has become an integral part of horse
race wagering in gambling establishments throughout the country.
This general situation, or at least a substantial part of it, is not a complete stranger to the
law reports. See Pennsylvania Publications, Inc. v. Pennsylvania Public Utility Commission,
349 Pa. 184, 36 A.2d 777, 153 A.L.R. 457, and annotation Background of Wire Service
Problem, 153 A.L.R. 463; also People v. Brophy, 49 Cal.App.2d 15, 120 P.2d 946, and
Albright v. Muncrief, 206 Ark. 319, 176 S.W.2d 426. And to it we may add the undisputed
fact that the furnishing of the wire information to the local books is essential to their
maintaining of the gambling game of race horse books.
(1) In his contention that the act is arbitrary, oppressive and capricious and beyond the
power of the legislature to impose and that it denies due process in violation of section 1 of
the fourteenth amendment to the federal Constitution, appellant properly characterizes the
legislation as an exercise of the police power and that as such it must be reasonably exercised
for the public welfare and that the measures provided for accomplishing the objective must
have a relation to the purpose sought to be accomplished. Reliance is then placed on Parkes v.
Bartlett, 236 Mich. 460, 210 N.W. 492, 494, 47 A.L.R. 1128, 1129, involving the validity of
a statute prohibiting publications concerning, among other things, bets and wagers on races.
Appellant quotes from this case as follows:
The police power of the state extends only to such measures as are reasonable, and the
general rule is that all police regulations must be reasonable under all circumstances.' * * *
By the term reasonable is not meant expedient, nor that the conditions must be such as
the court would impose if it were called on to prescribe what would be the conditions.
impose if it were called on to prescribe what would be the conditions. They are to be deemed
reasonable where, although perhaps not the wisest and best that might be adopted, they are fit
and appropriate to the end in view, to wit, the protection of the public, and are manifestly
adopted in good faith for that purpose. If the condition should be clearly arbitrary and
capricious; if no reason with reference to the end in view could be assigned for it; and
especially if it appeared that if must have been adopted for some other purpose, such for
instance, as to favor or benefit some person or class of persons, it certainly would not be
reasonable, and would be beyond the power of the Legislature to impose.'
State v. Vandersluis, 42 Minn. 129, 43 N.W. 789, 6 L.R.A. 119, cited in 7 Words and
Phrases, First Series, page 5953.
Appellant calls attention to the fact that the court held the statute was a reasonable restraint
under the police power insofar as it affected the publication of information in regard to future
gambling events and invalid insofar as it affected the publication of information concerning
past events, and particularly to that part of the above excerpt to the effect that if the
legislation appeared to have been adopted for the purpose of favoring or benefiting some
persons or class of persons it would be beyond the power of the legislature to impose. All of
this is good law, subject to the observation that it cannot be said that any part of the race
horse wire service here under contemplation can be considered so innocuous that the
legislature must perforce remove it from the operation of the regulatory and licensing
provisions. In this regard it should be noted that the plaintiff in order to bring himself within
the provisions of the act, thus establishing himself as a person with such interest as to
question its validity, alleged that under the fictitious name of Nevada Publishing Company he
was engaged in conducting a large, extensive and profitable business consisting of the
supplying and dissemination within the State of Nevada, for use in the maintenance and
operation of gambling games, sports pools and horse race books, and for other purposes,
of horse racing information received from sources outside said state; and that in the
course of said business he services "board rooms" maintained by the larger gambling
houses, "commission bettors" who operate on a limited scale for their own account and
the account of others, newspapers of general circulation and radio stations.
maintenance and operation of gambling games, sports pools and horse race books, and for
other purposes, of horse racing information received from sources outside said state; and that
in the course of said business he services board rooms maintained by the larger gambling
houses, commission bettors who operate on a limited scale for their own account and the
account of others, newspapers of general circulation and radio stations. And in his briefs,
expressing full agreement that he is subject to the provisions of chapter 93 containing the
amendments to the gambling act of 1931, he further concedes the fact of his operation of his
information service, the primary purpose of which is aid the placing or making of wagers on
events of any kind.
1, 2. The contention that the purpose of the act is to favor or benefit the race track books
and not for the protection of the public and in the public interest as recited in section 2 of
the act is not tenable. We concede that the recital in the act itself that it is for the public
interest is persuasive only, and not controlling, State v. Harris, 216 N.C. 746, 6 S.E.2d 854,
128 A.L.R. 658, but the public protection and interest are manifest. Neither the purpose of the
information as recited in the act, nor the measurement of the license fee of $10 per day per
book served (without including other users of the service), nor the mandatory nature of the
requirement to furnish the service on equal terms to all licensed race horse books or sports
pool operators, nor the regulation of the rates to be charged to the users of the service as
defined in section 1, nor the prohibition against passing the tax on to the books, nor the
combination of these circumstances, support appellant's contention that the purpose of the act
is to benefit the race track books and is not for the protection of the public or in the public
interest. Measuring sticks or criteria for the regulation of ordinary businesses and professions
can simply not be applied to the race horse book situation. The adjuncts, the ramifications,
the influences, the results, the burdens cast on the taxing and law enforcement agencies
are so wide and of such impact on the society and economic life of the state as to suggest
the necessity of drastic means of regulation and control.
the burdens cast on the taxing and law enforcement agencies are so wide and of such impact
on the society and economic life of the state as to suggest the necessity of drastic means of
regulation and control. We are unimpressed with the argument that the regulation or the
prohibition against passing on to the books the tax against the dissemination of race track
news does not inure to the benefit of the public; that the public bears no part of the cost of the
service; that the betting is strictly a matter between the public and the bookmaker
independently of the information service; that the bookmaker may subscribe to the service or
not as he sees fit, etc. Without the information service the race horse books could not operate;
without the fees paid by the race horse books the information service could not operate;
without the combined operation this kind of race horse betting would be reduced to a
minimum. The question of the continuance or the cutting off of the legislative sanction of this
as well as other type of gambling has its impact on virtually every citizen and every sojourner
within the state.
3. From the foregoing it is apparent that appellant can draw no support from the contention
that he is not engaged in the gambling business and therefore not within the rule of State ex
rel. Grimes v. Board of Commissioners, 53 Nev. 364, 1 P.2d 570, or that due process has
been violated by the act or the police power unreasonably applied. Norman v. City of Las
Vegas, 64 Nev. 38, 177 P.2d 442.
It is not difficult to understand why no authorities directly in point have been presented.
Statutes prohibiting the dissemination of race track news to facilitate betting are discussed
elsewhere. In Nevada alone, where professional gambling is licensed, do we find a statute
regulating this business or profession. Appellant suggests however that cases dealing with
newspapers as public utilities are helpful. These cases are apparently cited in support of the
contention that rates may be regulated by the state only in the case of public utilities.
In this regard appellant quotes as follows the annotation from Shuck v. Carroll Daily Herald,
215 Iowa 1276, 247 N.W. 813, 87 A.L.R. 975, appearing at page 979 of the A.L.R. citation:
With the exception of one case, * * * it has been uniformly held in the few cases which have
considered the question that the business of publishing a newspaper is a strictly private
enterprise, as distinguished from a business affected with public interest, and that its
publisher is under no legal obligation to sell advertising to all who may apply for it.
Thus in Chronicle & Gazette Pub. Co. v. Attorney General, 94 N.H. 148, 48 A.2d 478, 168
A.L.R. 879, a statute prohibiting a newspaper or radio station from charging higher rates for
political advertising than for commercial advertising was sustained against the attack that it
abridged the freedom of the press. Grosjean v. American Press Co., 297 U.S. 233, 56 S.Ct.
444, 80 L.Ed. 660, was distinguished as treating a license tax imposed by statute on
newspapers. Near v. State of Minnesota, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, was
distinguished as involving an attempt to suppress or censor newspapers. The New Hampshire
statute was held not to exercise any previous restraint on publication of news. Conceding that
the newspaper was not a public utility generally subject to regulation of its rates or compelled
to accept political advertising, the court then said: But it does not follow that because
newspapers are not public utilities that they are immune from regulation. Newspapers, like
other businesses, are subject to the police power. [94 N.H. 148, 48 A.2d 482.] The court
then called attention to Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505,
78 L.Ed. 940, 89 A.L.R. 1469, as considerably impairing the old doctrine (Ribnik v. McBride,
277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913, 56 A.L.R. 1327) that a business was not subject to
regulation unless affected with a public interest, and also to Olsen v. State of Nebraska, 313
U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305, 133 A.L.R. 1500, as discarding such theory, to the
final conclusion that the regulation of newspapers is as broad as that over other private
business.
theory, to the final conclusion that the regulation of newspapers is as broad as that over other
private business. The conclusion reached by appellant from analogy of the newspaper cases is
that appellant, not being a public utility, is not subject to general regulation of his rates and
cannot be compelled to furnish service to all licensed applicants. This again runs afoul of
State ex rel. Grimes v. Board of Com'rs., 53 Nev. 364, 1 P.2d 570, which, as we have seen,
distinguishes gambling from useful trades, occupations and business and makes it subject to a
proper exercise of the police power and subject to regulation or suppressionthis by reason
of its deleterious tendency.
Nor is appellant helped in this regard by his citation of Michigan Public Utilities
Commission v. Duke, 226 U.S. 570, 45 S.Ct. 191, 69 L.Ed. 445, 36 A.L.R. 1105, to the
purport that the legislature may not by its own fiat make a particular business a public utility,
which in fact it is not, consistently with the due process clause of the federal Constitution.
This we concede, particularly with reference to the facts of that case in which the state sought
to impose the duties of a common carrier upon one engaged in transporting merchandise for a
single manufacturer from his plant to a destination in another state, thus preventing him from
using his equipment exclusively to perform his contracts. The court also held that the statute
violated other constitutional limitations. In short the newspaper cases afford scant assistance.
4, 5. It is also contended that due process is violated because the act is not sufficiently
explicit and therefore faulty under our holding in Ex parte Smith, 33 Nev. 466, 111 P. 930. In
our opinion the act is sufficiently explicit in describing the persons subject to its provisions in
providing what may and what may not be done under its provisions, and the penalties for
violation. Nor is the requirement for adequate and efficient service to all race track book
operators applying for same in like manner as furnished to other users irrespective of the
geographical scope involved in the service so indefinite, uncertain or discriminatory as to
violate due process.
like manner as furnished to other users irrespective of the geographical scope involved in the
service so indefinite, uncertain or discriminatory as to violate due process. The state tax
commission, under its power to make rules and regulations, may well fill in the gaps. 16
C.J.S., Constitutional Law, sec. 138, cases cited in note 17 from virtually every state in the
Union. Appellant relies on Champlin Refining Co. v. Corporation Commission, 286 U.S.
210, 52 S.Ct. 559, 568, 76 L.Ed. 1062, 86 A.L.R. 403, as holding, as indeed it did, that
general provisions making unlawful a waste of petroleum pumped from wells were too
indefinite to support provisions for a penalty for their violation. They were said by the court
to be no more definite than would be a mere command that wells shall not be operated in
any way that is detrimental to the public interest in respect of the production of crude oil.
We find no such situation here. On the other hand the opinion, written by Mr. Justice Butler
for a unanimous court, upholds in all other respects the Oklahoma statute prohibiting the
production of petroleum in such manner as to constitute waste, etc., as against the attack that
it was repugnant to the due process and equal protection clauses of the fourteenth
amendment. It held also that the commerce clause was not violated by the statute even though
the petroleum affected was intended to be and was in fact immediately shipped in interstate
commerce. The act was likewise held not to be unreasonable or arbitrary nor was the
vagueness of the penal provisions permitted to taint the constitutionality of the rest of the act.
The Oklahoma act and Mr. Justice Butler's opinion and the applicability thereof to the present
case are of such extent as to preclude detailed discussion here. Suffice it to say that the
principles enunciated are in no degree in conflict with our own views as here enunciated.
In Lincoln Federal Labor Union No. 19129, A. F. of L., v. Northwestern I. & M. Co., 335
U.S. 525, 69 S.Ct. 251, 257, 6 A.L.R. 2d 473, the supreme court of the United States,
referring to its rejection in Nebbia v. People of State of New York, supra, of the old doctrine
theretofore held, distinguishing between businesses according to whether they were or
were not "clothed with a public interest," emphasized the fact that that court had
"consciously returned closer and closer to the earlier constitutional principle that states
have power to legislate against what are found to be injurious practices in their internal
commercial and business affairs, so long as their laws do not run afoul of some specific
federal constitutional prohibition {and that) the due process clause is no longer to be so
broadly construed that the Congress and state legislatures are put in a strait jacket when
they attempt to suppress business and industrial conditions which they regard as
offensive to the public welfare."
State of New York, supra, of the old doctrine theretofore held, distinguishing between
businesses according to whether they were or were not clothed with a public interest,
emphasized the fact that that court had consciously returned closer and closer to the earlier
constitutional principle that states have power to legislate against what are found to be
injurious practices in their internal commercial and business affairs, so long as their laws do
not run afoul of some specific federal constitutional prohibition (and that) the due process
clause is no longer to be so broadly construed that the Congress and state legislatures are put
in a strait jacket when they attempt to suppress business and industrial conditions which they
regard as offensive to the public welfare. See also Commonwealth v. Zasloff, 338 Pa. 457,
13 A.2d 67, 128 L.R.A. 1120.
6. (2) It is next contended that the act is a restraint of liberty of the press in violation of
article I, section 9 of the constitution of Nevada. In support of this contention reliance is first
placed upon City of Reno v. Second Judicial District Court, 59 Nev. 416, 95 P.2d 994, 125
A.L.R. 948, which properly declared that freedom of the press may not be suppressed under
the guise of regulation and is not subject to the exercise of arbitrary power. In that case this
court struck down an ordinance of the city of Reno which did not pretend to regulate but
absolutely prohibited all picketing, whether peaceful or otherwise. After referring to sundry
cases holding the dissemination of information by peaceful picketing to be analogous to the
use of the press, etc., this court held that it could not be subject to such arbitrary prohibition.
That case does not in any way shed any light on the present problem. But appellant relies
more strongly on Parkes v. Bartlett, 236 Mich. 460, 210 N.W. 492, 494, 47 A.L.R. 1128, in
which the supreme court of the state of Michigan sustained that part of the statute which
related to publication of race news before the racing event, but held the statute invalid insofar
as it related to publications after the event. The statute made it unlawful for any person to
publish information concerning the making of bets or the selling of pools or evidences of
betting odds on any race, etc., "when committed after any * * * race * * * as well as
when committed before any such * * * race."
it unlawful for any person to publish information concerning the making of bets or the selling
of pools or evidences of betting odds on any race, etc., when committed after any * * * race
* * * as well as when committed before any such * * * race. Pub. Acts 1925, No. 176, sec. 4.
It is interesting to note however that the court said: It is apparent that every publication
before the event would naturally have a tendency to encourage gambling. It is made of a
particular pending event at which there would be an opportunity to gamble. This is not true of
every publication after the event. Some undoubtedly would have a harmful tendency; some
would not. Everyone can conceive of many publications after the event that could have no
possible tendency to induce gambling. (Italics supplied.) We think the matter well put by the
Michigan court. But when fitted to the pattern of appellant's business as outlined in this
opinion, it affords complete justification for the act here attacked. Appellant also cites
Armstrong Racing Publication v. Moss, 181 Misc. 966, 43 N.Y.S.2d 171, 173. This case is
very much in the same category as Parkes v. Bartlett, for here the supreme court, of New
York County (it does not appear that the case was ever considered by either the appellate
division or the court of appeals), held that the commissioner of licenses was well within his
powers in forbidding the sale of tipster sheets' by the licensees of public newsstands, but
rejected his order forbidding sale of other publications of racing news which were in all
respects comparable to the sports pages found in the regular daily newspapers. No more are
we persuaded by Commonwealth v. Certain Gaming Implements, 317 Mass. 160, 57 N.E.2d
542. We have no difficulty in finding that the legislature without any unconstitutional
restraint of the liberty of the press, had full power not only to regulate but to ban the operation
of appellant's business. Howard Sports Daily v. Weller, 179 Md. 355, 18 A.2d 210, and cases
therein cited.
7. (3)Appellant contends that the act is a law of special and nonuniform operation in
violation of section 21 of article IV of the Nevada constitution.4 In support of this
contention appellant relies on State v. California Mining Co.,
special and nonuniform operation in violation of section 21 of article IV of the Nevada
constitution.
4
In support of this contention appellant relies on State v. California Mining Co.,
15 Nev. 234. This court there said: * * * it has always been agreed that a law which applies
only to an individual or to a number of individuals selected out of the class to which they
belong, is a special and not a general law, and further accepted the definition of a special law
as one which affects only individuals and not a classone which imposes special burdens,
or confers peculiar privileges upon one or more persons in no wise distinguished from others
of the same category. Support is also sought from Washoe County Water Conservation
District v. Beemer, 56 Nev. 104, 45 P.2d 779, which recognizes the same principle. In
seeking to bring chapter 152 within these definitions of a special law, counsel asserts (1) that
its application depends on the geographical source of the information (from outside the state
as heretofore discussed); and (2) that it depends upon the exclusion of public utilities from its
operation. The first of these grounds is later disposed of in our rejection of the contention that
the act discriminates against foreign commerce and places a burden on interstate commerce.
The second ground is likewise disposed of by our justification of drastic regulation of
appellant's occupation and by our distinguishing of appellant's business from that of the press
in general. It may be noted that the contention is supported by nothing more than appellant's
simple assertions. In our opinion the statute is of general and uniform operation. Obviously it
does not operate upon every person in the state, but it does operate upon every person brought
within the relation and circumstances therein described. Young v. Hall, 9 Nev. 212.
8, 9. (4)Appellant contends that the act is a regulation of interstate commerce in violation of
section 8 of article I of the Constitution of the United States, vesting in congress the
power to regulate commerce among the several states.
____________________

4
In all cases enumerated in the preceding section, and in all other cases where a general law can be made
applicable, all laws shall be general and of uniform operation throughout the state. The cases enumerated in
the preceding section have no application.
article I of the Constitution of the United States, vesting in congress the power to regulate
commerce among the several states. This contention is made chiefly upon the ground that the
act is directed exclusively to the licensing, regulating and taxing of the dissemination of
information received from a source outside of this state, and therefore discriminates against
services by reason of their out of state origin. In support of this contention reliance is placed
upon the so-called liquor cases.
5
These cases held generally that the particular statute
attacked created a burden on interstate commerce or discriminated by imposing upon property
imported from another state a greater burden of taxation than levied upon domestic property
of like nature. It was thought that legislation of this nature could result in levying a tax on a
foreign article so high as to exclude its introduction and prevent its competition with the
home product, or would discriminate in favor of products (wines and spirits) made from
grapes or fruits grown in the state and against the same products made from grapes or fruits
grown elsewhere, etc.
As to the contention that the act places a burden on interstate commerce, the rule has long
been recognized that statutes enacted under the police power to protect the public health,
morals, safety and welfare, and which affect interstate commerce incidentally only, are not
invalidated by such incidental result. In further enunciation of this rule statutes prohibiting the
furnishing of telephone or telegraph services facilitating betting on horse races have, in well
reasoned opinions, been held not to violate section 8 of article I of the federal Constitution.
State v. Harbourne, 70 Conn. 484, 40 A. 179, 40 A.L.R. 607, 66 Am.St.Rep. 126; City of
Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876, 79 S.W. 201; Logan & Bryan v. Postal
Telegraph and Cable Co., C.C., 157 F.
____________________

5
State v. Parker Distilling Co., 236 Mo. 219, 139 S.W. 453, and cases therein summarized; Darnell & Son
Co. v. City of Memphis, 208 U.S. 113, 115, 28 S.Ct. 247, 52 L.Ed. 413; Welton v. State of Missouri, 91 U.S.
275, 23 L.Ed. 347; Scott v. Donald, 165 U.S. 58, 17 S.Ct. 265, 41 L.Ed. 632; Guy v. Baltimore, 100 U.S. 434,
25 L.Ed. 743; Minneapolis Brewing Co. v. McGillivray, C.C., 104 F. 258.
C.C., 157 F. 570; 24 Am.Jur. 400, Gaming and Prize Contests, sec. 5; 11 Am.Jur. 85,
Commerce, sec. 94.
In State v. Harbourne, supra, the Connecticut statute prohibited the keeping of any place in
which was permitted or conducted the business of transmitting money to any race track or
other place to be bet on any horse within or without the state, and was attacked as an
interference with interstate commerce. The court said that the statute [70 Conn. 484, 40 A.
181] does not attempt to, and does not in fact, exercise any exclusive power vested in
congress over interstate commerce. It simply prohibits in this state the business of aiding
crime; and, if such commerce is thereby affected at all, it is the incidental effect of depriving
those here engaged in telegraphing of the profits they might make through the business of
promoting gambling in this state.
In City of Louisville v. Wehmhoff, supra, there was involved an ordinance of the city of
Louisville making it unlawful for any telephone or telegraph company to furnish to any
poolroom operated in the city any information to be used by such poolroom to promote
betting on horse races in or out of the city. The ordinance was approved in vigorous language.
In Parkes v. Bartlett, 236 Mich. 460, 210 N.W. 492, 495, 47 A.L.R. 1128, involving an
act, Pub. Acts 1925, No. 176, to suppress gambling and to prohibit the publication and
furnishing of information concerning gaming, section 4 of which made it unlawful to
publish any information concerning the making of bets, the court said: The statute does not
authorize interference with goods which are the subject of interstate commerce. It aims only
at the distribution of prohibited publications to the public within this state; and the complaint
against the Union News Company does not charge anything beyond that. The objection that
the statute is an unlawful interference with interstate commerce is without merit.
10. But it is further contended that the taxing and licensing provisions of chapter 152,
attaching, as they do, to the dissemination in this state of information received "from any
source outside of this state," and not attaching to the dissemination of information from
sources inside the state, discriminate in favor of local race horse gambling and against
interstate race horse gambling.
do, to the dissemination in this state of information received from any source outside of this
state, and not attaching to the dissemination of information from sources inside the state,
discriminate in favor of local race horse gambling and against interstate race horse gambling.
It is contended that, admitting the right of the state under its police powers to tax all race
horse gambling through the dissemination of information to the bookmakers despite any
incidental burden on interstate commerce, such burden becomes unconstitutional by reason of
the discrimination. Many authorities are cited to support this view. Nor should we be
disposed to treat the contention lightly if it found support under the facts and under the laws
of this state. Horse racing in this state is confined to a few minor race meets a year, conducted
almost entirely in connection with county or state fairs. The results of such races are of little
or no importance to the race track world. However, be this as it may, and assuming the
holding of race meets within this state in whose favor chapter 152 is said to discriminate, we
cannot find that such discrimination is effected. All betting, through any bookmakers
operating by means of dissemination of information concerning such races in the state, is
unlawful. This is so by reason of chapter 231 of the Statutes of 1949, page 507, being An
Act to license and regulate the operation of pari-mutuel betting * * * in certain enclosures
only, in Nevada; * * *, section 5 of which reads as follows: All other forms of wagering or
betting on the results of any of the races or events licensed hereunder outside the enclosure
where such races or events are licensed by the board are illegal. This act subjects pari-mutuel
betting on Nevada race events to strict license and regulation by the Nevada tax commission,
including the fingerprinting of the applicant, examination as to his antecedents, habits and
character, the charging of license fees, the requirement that all pari-mutuel wagering be
within the grounds, the outlawing of betting on the results in any other manner, the
limitation of the commission that may be deducted, the payment of a percentage thereof
to the state, the strict inspection by the commission of the applicant's books, and
provisions for suspension or revocation of the license for violation of the statute or any
rule or regulation of the commission, in addition to punishment by fine or imprisonment
for any violation.
results in any other manner, the limitation of the commission that may be deducted, the
payment of a percentage thereof to the state, the strict inspection by the commission of the
applicant's books, and provisions for suspension or revocation of the license for violation of
the statute or any rule or regulation of the commission, in addition to punishment by fine or
imprisonment for any violation. So, while the dissemination of out of state information to be
used by local race horse books is subject to the provisions of chapter 152, such means of
betting on races held within the state is made unlawful by chapter 231. The legislature was
under no compulsion to cover every subdivision of the field in a single enactment. American
Federation of Labor v. American Sash & Door Co., 335 U.S. 538, 69 S.Ct. 258, 6 A.L.R.2d
481.
The same session of the legislature enacted chapter 195 of the Statutes of 1949, page 416,
being an act to regulate the racing of horses in the State of Nevada, etc., under the terms of
which horse racing may be conducted by obtaining a permit from the state racing commission
created by the act. Strict provisions are contained for the revocation and suspension of
permits. The act does not apply to state or county fairs or to certain veterans' organizations,
subject, however, to strict limitations. All other race meets are made unlawful and subject to a
fine of not less than $500 nor more than $1,000 for each day thereof. Under the act
pari-mutuel betting is permitted through application to the Nevada Tax Commission in
conformity with the gambling laws of this state and the rules and regulations of the Nevada
tax commission. Accordingly race meets held in the state, under chapter 195, would be
subject to the restrictions of chapter 231 outlawing all betting except at the pari-mutuel
booths within the enclosure. Such chapter 195 repealed the old race track act of 1915, which
had been amended several times prior to 1949.
Nevada's general gambling law of 1931, thereafter amended a number of times, was
again amended in 1947 to increase the license fee from 1 percent to 2 percent of the
gross revenue.
amended a number of times, was again amended in 1947 to increase the license fee from 1
percent to 2 percent of the gross revenue. Statutes 1947, chap. 223, p. 734. Section 10ee was
added generally increasing the license fees, in addition to the increased percentage fee above
mentioned. Establishments operating three games paid an annual fee of $750; for four or five
games $1,750; for six to 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; for twenty-one or more
$30,000. This is followed by the provision: In computing the number of games operated or
to be operated by an applicant hereunder, a license authorizing the receiving of bets or wagers
on horse races held without the State of Nevada, as authorized and provided for under chapter
57, 1941 Statutes, page 64, shall be construed as and deemed a game within the meaning of
this section.
The 1941 statute, above referred to, which was an act mending the general act concerning
crimes and punishments and making it unlawful to conduct sundry games without a license
contains the provision: The receiving of bets or wagers on horse races held without the State
of Nevada shall be deemed to be a gambling game within the meaning of this section * * * .
It also made it unlawful to disseminate such news beyond the limits of the state.
The 1915 act regulating horse racing in the State of Nevada was amended in 1943, Statutes
1943, chap. 80, p. 105, which, among other things, raised the pari-mutuel commission from
10 percent to 12 percent, which fees were required to go into the highway fund instead, of the
general fund as theretofore. Pari-mutuel betting was still confined to persons licensed
pursuant to statute.
While we have endeavored to limit to the bare essentials our review of some of our
gambling statutes down to the present time, it is evident from those referred to that race horse
betting on races held within the state has been strictly limited to betting in the pari-mutuels
within the enclosures where the races were held. Outside books on such local betting have
been and still are unlawful, but, as we have seen, the handling of bets on races held
outside the state has simply been licensed and taxed in like manner as the conducting of a
gambling game.
unlawful, but, as we have seen, the handling of bets on races held outside the state has simply
been licensed and taxed in like manner as the conducting of a gambling game. The act of
1949 here under attack as discriminatory against dissemination of interstate racing news
simply placed this activity under the control of the state tax commission, assessed a tax of
$10 per day per horse race book to which the disseminator furnished service, required the
disseminator to furnish service to all books applying for same, made the disseminator's rates
subject to approval by the commission, and prevented the disseminator from passing his tax
on to the books, etc. It left in effect against the gambling operators fees running, as we have
seen, as high as about $1,500 per game per year, as well as the fee of 2 percent of gross
revenue.
11-13. In the plan thus developed by the legislature we find nothing so unreasonable,
arbitrary, capricious or discriminatory or so devoid of a real and substantial relation to the
regulation sought to be accomplished as to invalidate the legislation on any of the grounds
asserted. Nebbia v. People of State of New York, 291 U.S. 502, 54 S.Ct. 505, 78 L.Ed. 940,
89 A.L.R. 1469. That the legislation was in the proper exercise of the police power we have
no doubt. Nor are the revenue sections unrelated to such exercise of the police power, nor do
they defeat such exercise. Great Atlantic & Pacific Tea Co. v. Grosjean, 301 U.S. 412, 57
S.Ct. 772, 81 L.Ed. 1193, 112 A.L.R. 293. All the ingenuity of the lawmakers was required in
order to license, regulate and tax an industry of deleterious tendency, which apparently had
theretofore escaped such taxation and regulation. The legislature apparently thought it best to
insure that the disseminators of out of state race news should pay the tax of $10 per day per
book served, out of their own revenues from such service and without passing it on to the
horse race books. So long as the methods used for taxation and regulation do not exceed any
constitutional limitations, it is not our province to try to discover whether or not some better
method might have been devised.
been devised. No matter how drastic the regulations appear to be, this would not authorize us
to substitute our own judgment for that of the legislature if such regulations appear
reasonably intended to achieve the results sought. Premier-Pabst Sales Co. v. State Board of
Equalization, D.C., 13 F.Supp. 90, 96.
We have carefully considered all of the authorities submitted by appellant, some of which
we have not found it necessary to discuss. We have likewise given due consideration to all
points raised in appellant's briefs, but do not find further discussion necessary. It is our
opinion that no limitations imposed by either the federal or state Constitution are violated by
any of the provisions of the act attacked in these proceedings.
The case was presented to the district court on a complaint seeking to enjoin the
enforcement of the regulations and to obtain a declaratory judgment as to the validity of the
act. No question is raised as to the sufficiency of the complaint to entitle the plaintiff to seek
relief under the declaratory judgment act.
The judgment is hereby affirmed with costs.
14. The record indicates that during the course of the proceedings in the district court,
orders were made permitting the impounding in that court of the accruing license fees
required by the act and that such orders were continued in effect pending this appeal. The
district court is directed to make all necessary and proper orders in the premises so that the
impounded funds may be paid forthwith to the proper officials for deposit in the general fund
of the state in accordance with the provisions of chapter 152 of the Statutes of 1949, page
326, and to vacate any subsisting orders purporting otherwise to permit the further
impounding of such fees.
____________
67 Nev. 199, 199 (1950) Cohen v. Tax Commission
FRANK COHEN, Doing Business Under the Fictitious Name of ONER PUBLISHING
COMPANY, Appellant, v. NEVADA TAX COMMISSION, Respondent.
No. 3592
March 15, 1950. 216 P.2d 998.
Action by Frank Cohen, doing business under the fictitious name of Oner Publishing
Company, against the Nevada Tax Commission, for declaratory judgment as to validity of
St.1949, c. 152, which provided for licensing the business of supplying horse racing
information received from sources outside the State. From a judgment of the First Judicial
District Court, Ormsby County, Clark J. Guild, Judge, in favor of defendant, the plaintiff
appealed. The Supreme Court, Badt, J., held that the statute did not deny due process or
restrain liberty of the press or operate in a nonuniform manner, or unlawfully regulate
interstate commerce.
Judgment affirmed.
Appeal and Error.
Where license fees were impounded pending disposition of case in which validity of licensing statute was
challenged, the supreme court, upon upholding validity of the statute, would direct district court to make
necessary orders so that impounded funds might be paid forthwith to proper officials for deposit in general
fund of the state, in accordance with provisions of the licensing statute. St.1949, c. 152.
Louis V. Skinner, of Reno, for Appellant.
Annand and Robert L. McDonald, Deputy Attorneys General, for Respondent.
OPINION
This appeal is in all respects identical with the appeal in case No. 3591, except as to the
amount of fees payable under the provisions of chapter 152, Stats. of 1949, p.
67 Nev. 199, 200 (1950) Cohen v. Tax Commission
under the provisions of chapter 152, Stats. of 1949, p. 326.
For the reasons stated in the opinion in Dunn v. Nevada Tax Commission, 67 Nev. 173,
216 P.2d 985, No. 3591, the judgment is hereby affirmed with costs.
The record indicates that during the course of the proceedings in the district court, orders
were made permitting the impounding in that court of the accruing license fees required by
the act and that such orders were continued in effect pending this appeal. The district court is
directed to make all necessary and proper orders in the premises so that the impounded funds
may be paid forthwith to the proper officials for deposit in the general fund of the state in
accordance with the provisions of chapter 152 of the Statutes of 1949, page 326, and to vacate
any subsisting orders purporting otherwise to permit the further impounding of such fees.
____________
67 Nev. 200, 200 (1950) Ruppert v. Edwards
A. R. RUPPERT, N. L. RUPPERT, and JOSEPH HOFFMAN, Doing Business as the A. R.
RUPPERT PLUMBING AND HEATING COMPANY, and A. R. RUPPERT, N. L.
RUPPERT, and JOSEPH HOFFMAN, doing Business as the A. R. RUPPERT PLUMBING
AND HEATING COMPANY, a Co-Partnership and A. R. RUPPERT PLUMBING and
HEATING COMPANY, a Nevada Corporation, Appellants v. EDGAR EDWARDS,
Respondent.
No. 3597
March 29, 1950. 216 P.d 616.
Action by Edgar Edwards against A. R. Ruppert and others to recover penalties for
defendants' alleged failure to record an acknowledgment of satisfaction of a debt and to
release a mechanic's lien. The Eighth Judicial District Court for Clark County, A. S.
Henderson, Judge, Department No.
Judge, Department No. 2, rendered a judgment for the plaintiff and made an order denying a
motion for new trial, and the defendants appealed. The Supreme Court, Horsey, C. J., held
that plaintiff was entitled to recover penalties.
1. Payment.
The presumption that a check or draft given in payment was intended merely as a conditional payment is
not destroyed by crediting the check to the debtor's account or by the act of the bank upon which check or
draft was drawn in charging it to the drawer's account or stamping it as paid if it is not in fact paid.
2. Mechanics' Liens.
Where owner of building issued checks in settlement of plumbing bill after plumbers had filed a
mechanic's lien and received a receipt stating that as soon as check had cleared lienors would execute an
appropriate release, owner was not required personally or by his attorneys to make a further demand after
checks had cleared for entry of acknowledgment of satisfaction to justify imposition of a penalty against
lienors for failure to record acknowledgment timely under the Mechanics' Lien Law. N.C.L.1929, sec.
3750.
3. Equity.
In a court of equity, an act is deemed done which ought to have been done.
4. Payment.
Where building owner tendered two checks in full accord and satisfaction of plumbing bill to attorney of
plumbers who had filed a mechanic's lien, and receipt was given reciting that lienors would execute
appropriate release as soon as checks had cleared, and checks were presented and cleared, giving of checks
was to be regarded as conditional payment which became absolute after clearance as of date of delivery to
lienors. N.C.L.1929, sec. 3750.
5. ForfeituresPenalties.
Ordinarily, forfeitures and penalties are not favored.
The statute providing that one claiming a mechanic's lien shall on payment of amount and
acknowledgment of satisfaction, at request of any person interested in property charged therewith enter
acknowledgment of record within ten days from request and be liable to penalty on failure so to do, is
mandatory. N.C.L.1929, sec. 3750.
Where mechanic's lien was filed against property for owner's failure to pay plumbing bill, and owner
tendered checks in full accord and satisfaction and received receipt stating that
acknowledgment would be filed when checks had cleared, and one check cleared on
date of issuance and the other three days later, and lienors failed to file release as
agreed, statutory penalty accrued ten days after date checks where tendered, and ran
until date on which lien automatically expired by limitations.
accord and satisfaction and received receipt stating that acknowledgment would be filed when checks had
cleared, and one check cleared on date of issuance and the other three days later, and lienors failed to file
release as agreed, statutory penalty accrued ten days after date checks where tendered, and ran until date on
which lien automatically expired by limitations. N.C.L.1929, sec. 3750.
In action by owner of property to recover penalties for alleged failure of lienors to file acknowledgment
of satisfaction of mechanic's lien, a receipt signed by lienors by their agent which recited that as soon as
checks tendered in full accord and satisfaction of the debt had cleared lienors would execute appropriate
release discharging the lien against described property of plaintiff was sufficient to establish fact of the lien
and ownership of the property. N.C.L.1929, sec. 3750.
9. Estoppel.
Where claimants of mechanic's lien gave property owner a receipt which recited that as soon as checks
tendered in full accord and satisfaction of debt had cleared, lienors would execute an appropriate release
discharging lien filed against described property of the owner, lienors were estopped thereafter from
claiming that owner did not own the property described and that there was no evidence that the lien was
filed upon that property. N.C.L.1929, sec. 3750.
Taylor & Gubler, of Las Vegas, for Appellants.
George E. Franklin, Jr., of Las Vegas, for Respondent.
OPINION
In the instant case the defendants and appellants have appealed from the judgment and
from the district court's order denying their motion for a new trial.
It appears advisable, in order clearly to present the factual situation and the questions of
law involved, that we embody herein, first, the opinion of the court below, which is as
follows:
The complaint in this action, after reciting the residence of the plaintiff and defendants,
sets out that on or about the 10th day of July, 1947, the said defendants caused to be filed in
the Office of the County Recorder of Clark County, Nevada, a notice of lien against certain
real property of the plaintiff described in the complaint.
caused to be filed in the Office of the County Recorder of Clark County, Nevada, a notice of
lien against certain real property of the plaintiff described in the complaint. It appears that the
lien arose out of the alleged failure of the plaintiff to pay the defendant for certain labor and
material incurred in the installation of certain plumbing work in and about the premises of the
plaintiff, that said work was done pursuant to a contract entered into by and between the
plaintiff and defendant, that the lien purported that there was a balance due of $2382.81, that
the sum of money remained unpaid and due the defendants from the plaintiff. Thereafter
negotiations were entered into by and between attorneys of the plaintiff and defendant,
George E. Franklin, Jr., Esquire, appearing as attorney for the plaintiff, and Taylor and
Gubler, Esquires, attorneys for the defendant. It appears that on or about the 24th day of
October, 1947, the plaintiff tendered to the said firm of attorneys, Taylor and Gubler, as the
agent of the defendants, the sum of $1900 in full satisfaction and accord of all claims of
whatever kind and nature which existed by and between said defendant and said plaintiff by
reason of said work and material furnished and in satisfaction of said lien recorded in the
Office of the County Recorder of Clark County, Nevada. It appears that at that time, to-wit,
on the 24th day of October, 1947, it was agreed that the defendants would execute appropriate
release discharging mechanic's lien heretofore filed by said company against the property of
the plaintiff, that no release was filed and as a result this action was brought in accordance
with Section 3750, Volume 2, Nevada Compiled Laws 1929, said section reading as follows:
Satisfaction And Discharge Of Lien. The claimant of any such lien filed as aforesaid, on
the payment of the amount thereof, together with the costs incurred and the acknowledgment
of satisfaction, shall, at the request of any person interested in the property charged therewith,
enter or caused to be entered an acknowledgment of satisfaction of the same {of) record
within ten days from the request, and for failure of the claimant to enter satisfaction
within the time, shall forfeit and pay to the person making the request the sum of twenty
dollars per day until the same shall be entered, to be recovered in the same manner as
other debts.'
satisfaction of the same (of) record within ten days from the request, and for failure of the
claimant to enter satisfaction within the time, shall forfeit and pay to the person making the
request the sum of twenty dollars per day until the same shall be entered, to be recovered in
the same manner as other debts.'
Under said section the plaintiff claims that 518 days had elapsed since the said
defendants, in response to the request of the said plaintiff, promised to enter acknowledgment
of satisfaction, and that the said defendants had, during the said 518 days period, failed and
refused, and continued to fail and refuse, to cause such acknowledgment of satisfaction to be
entered in the manner prescribed by law. The complaint therefore prayed damages for each of
said 518 days at the rate of $20 per day, in accordance with the statute, or a total of $10,360
in costs.
To this complaint the defendant filed answer admitting the allegations of paragraphs 1, 2
and 3 of the complaint, and they set up as a defense denying paragraphs 5, 6, 7, 8, 9 and 10 of
the complaint, denying in their answer that the instrument that was filed purported to be a
lien, was not, in fact, a notice of lien at all.
From the evidence it appears that a contract was entered into by and between the parties,
plaintiff and defendants, for the performance of certain labor and the furnishing of certain
material in the installation of certain plumbing in the premises belonging to the plaintiff, that
the plumbing to be done in accordance with the contract was completed, in accordance with
the testimony of the defendants, and thereafter the lien was filed in the office of the County
Recorder of Clark County, Nevada, on the 10th day of July, 1947.
On the 23rd day of August, 1947, a letter was written to the plaintiff by Mr. V. Gray
Gubler, of the firm of Taylor and Gubler, in which he called to the attention of the plaintiff
the fact that there was a balance due his client, the defendant, in the sum of $2382.81 plus
interest and attorneys fees, as provided in the contract with instructions that they would
file suit unless satisfactory arrangements for settlement could be worked out and in said
letter it is stated "otherwise it will be necessary for us at the earliest possible time
thereafter to file suit for foreclosure of mechanic's lien on your motel property.' It will be
seen by this that notwithstanding their answer denying that the instrument was a lien,
the firm did recognize it as a lien on the 23rd day of August, 1947, as set out in said letter.
interest and attorneys fees, as provided in the contract with instructions that they would file
suit unless satisfactory arrangements for settlement could be worked out and in said letter it is
stated otherwise it will be necessary for us at the earliest possible time thereafter to file suit
for foreclosure of mechanic's lien on your motel property.' It will be seen by this that
notwithstanding their answer denying that the instrument was a lien, the firm did recognize it
as a lien on the 23rd day of August, 1947, as set out in said letter.
The Court is of the opinion that the instrument filed was a lien, and now so holds. Again,
in a letter from the A. R. Ruppert Plumbing Company, by Thomas J. Palmer, the following
language is used Also, we will instigate foreclosure proceedings on the mechanic's lien now
recorded against the property.' Thus it will be seen that the company itself deemed that the
instrument filed was a lien.
Pursuant to the said lien, and pursuant to the letter of Taylor and Gubler to the plaintiff,
through his attorney, George E. Franklin, Jr., with Taylor and Gubler, by and through V. Gray
Gubler, attorney for the defendants, and the plaintiff paid to the said V. Gray Gubler by and
through his attorney, George E. Franklin, Jr., the sum of $1900 and received from said V.
Gray Gubler, as agent for the said defendant, a receipt acknowledging receipt of two checks,
aggregating $1900, and agreeing that as soon as said checks, and each of them, had cleared,
the said defendant company would execute appropriate release discharging mechanic's lien
filed by said company against the property of the said plaintiff.
Again it will be seen that the attorneys representing the defendant recognized the
instrument so filed as a lien.
The defendants raised the question that the agreement was as soon as the said checks, and
each of them, had cleared, the company would execute appropriate release discharging
mechanic's lien heretofore filed by said company against the property of the plaintiff. This
receipt was dated October 24, 1947, and the question now before the Court is whether or
not the two checks constitute payment.
receipt was dated October 24, 1947, and the question now before the Court is whether or not
the two checks constitute payment.
In the opinion of the Court the two checks would constitute payment and settlement in
full of said claim, and thereafter within ten days, as set out in the statute, the defendant itself,
or through its attorneys, should have entered satisfaction and discharged said lien.
Then again let us presume that the words of the letter or receipt are to be strictly
construed, that is, the checks and each of them should clear before the obligation of
discharging the mechanic's lien would attach to the defendant. One check for $300 was drawn
on the First National Bank of Nevada and was dated the 23rd day of October, 1947, and
shows it was paid on the 24th day of October, 1947. The other check for $1600 was dated the
23rd day of October, 1947, and cleared through the National Bank of Nevada on October 27,
1947. Thus it will be seen that the amounts were paid within ten days after they were tendered
as payment of the claim.
The Court is of the opinion that within ten days after the 24th day of October, 1947, the
defendant having during that time been paid in full of all demands, should have entered an
acknowledgment of satisfaction of the lien of record, said request having been made so to do
by the plaintiff and an agreement having been made by the defendant so to do on the 24th day
of October, 1947.
From the evidence it appears that the lien was filed July 10, 1947, that the lien was
satisfied on October 24, 1947. Suit could have been brought on or before six months after
July 10, 1947, or on or before January 10, 1948, and if suit had not been brought on or before
said date, then the lien would have been of no value. In accordance with the statute the lien
should have been discharged ten days after October 24th, or November 3, 1947, and
inasmuch as the lien itself would have expired on January 10, 1948, two months and seven
days, or 67 days, elapsed after the defendant was requested by plaintiff to release said lien,
therefore the Court is of the opinion that there is due the plaintiff for the failure of the
defendant to enter an acknowledgment of satisfaction of said lien in the sum of $1340.
opinion that there is due the plaintiff for the failure of the defendant to enter an
acknowledgment of satisfaction of said lien in the sum of $1340.
Judgment will be entered in favor of the plaintiff and against the defendant for the sum of
$1340, together with costs and interest from this date until paid.
Dated this 28th day of September, 1949.
A. S. Henderson
District Judge.
It is apparent that there is little, if any, serious controversy or contention relative to the
essential facts. The entire controversy revolves around the proper interpretation and
construction of certain principles of law which are applicable to the factual situation involved
in the instant case. Thus, it is believed that the following will serve to bring out clearly the
legal situation with which the court is confronted herein. We will, therefore, copy, in part,
alleged error No. 1, the principal of the appellants' alleged six assignments of error. Such
alleged error No. 1 is captioned, The Evidence Is Insufficient to Support the Judgment, and,
commencing on page 2, in line 22, and continuing to page 6, line 12, of appellants' opening
brief, same is, in part, as follows:
The Complaint (Paragraphs VII and VIII) alleges that on the 24th day of October, 1947,
the respondent tendered to the agent of the appellant, A. R. Ruppert Plumbing and Heating
Company, a Co-Partnership, and that the Co-Partnership accepted in full satisfaction of all
claims on account of the said lien the sum of One Thousand Nine Hundred ($1,900.00)
Dollars; that then and there respondent requested of the appellant and the appellant agreed to
and promised to record an acknowledgment and satisfaction of the said lien.
The evidence shows (Record, Page 24) that an accord was reached by the terms of which
the respondent would pay to the appellants the sum of One Thousand Nine Hundred
($1,900.00) Dollars in full settlement of appellants' claim; that thereupon respondent gave to
his attorney, for delivery to attorneys for appellants, two {2) checks dated October 23, 1947,
one {plaintiff's exhibit 6, record, page 33) in the sum of Three Hundred {$300.00) Dollars
drawn upon the First National Bank of Nevada, Las Vegas Branch, and one in the sum of
One Thousand and Six Hundred {$1,600.00) Dollars {plaintiff's exhibit 5, record, page 33)
drawn upon the Compton National Bank at Compton, California; that thereupon and on
the 24th day of October, 1947, these two {2) checks were delivered by the attorney for
the respondent to the attorneys for the appellants, for which a Receipt was given
{plaintiff's exhibit 7, record, page 3S), which was in words and figures as follows:
(2) checks dated October 23, 1947, one (plaintiff's exhibit 6, record, page 33) in the sum of
Three Hundred ($300.00) Dollars drawn upon the First National Bank of Nevada, Las Vegas
Branch, and one in the sum of One Thousand and Six Hundred ($1,600.00) Dollars
(plaintiff's exhibit 5, record, page 33) drawn upon the Compton National Bank at Compton,
California; that thereupon and on the 24th day of October, 1947, these two (2) checks were
delivered by the attorney for the respondent to the attorneys for the appellants, for which a
Receipt was given (plaintiff's exhibit 7, record, page 38), which was in words and figures as
follows:
Receipt
received from George E. Franklin, Jr., attorney for Mr. Edgar Edwards, General
Delivery, Las Vegas, Nevada, check in the sum of Three Hundred ($300.00) Dollars, dated
October 23, 1947, drawn on First National Bank of Nevada, Las Vegas Branch, Las Vegas,
Nevada, and check in the sum of One Thousand Six Hundred ($1600.00) Dollars, dated
October 23, 1947, drawn on Compton National Bank, Compton, California, as conditional
payment in full of all claims of A. R. Ruppert Plumbing & Heating Company against said
Edgar Edwards.
It is hereby agreed that as soon as said checks and each of them have cleared, A. R.
Ruppert Plumbing & Heating Company will execute appropriate release discharging
mechanic's lien heretofore filed by said company against the property of Mr. Edgar Edwards
described as Lots One (1), Two (2), Three (3) and Four (4), Arrowhead Addition to the City
of North Las Vegas, Clark County, Nevada.
Dated this 24th day of October, 1947.
A. R. Ruppert Plumbing & Heating Company
By V. Gray Gubler
of Taylor & Gubler, Attorneys for said A. R. Ruppert Plumbing and Heating
Company' "It is obvious from such receipt given by Taylor & Gubler that it was
conditioned upon the checks clearing {said receipt being plaintiff's exhibit 7,
record, page 3S), and it was agreed in the said receipt that upon the checks
clearing, the appellants would execute an appropriate release discharging the
mechanic's lien theretofore filed.
It is obvious from such receipt given by Taylor & Gubler that it was conditioned upon the
checks clearing (said receipt being plaintiff's exhibit 7, record, page 38), and it was agreed in
the said receipt that upon the checks clearing, the appellants would execute an appropriate
release discharging the mechanic's lien theretofore filed. Thus it will be seen by the express
terms of the receipt, the delivery of the checks did not constitute payment, unless and until the
checks cleared. It appears that the check in the sum of Three Hundred ($300.00) Dollars
drawn on the First National Bank of Nevada, Las Vegas Branch, by its endorsement thereon
(plaintiff's exhibit 6, record, page 33) cleared on October 24, 1947, but the check in the sum
of One Thousand Six Hundred ($1,600.00) Dollars drawn on the Compton National Bank,
Compton, California (plaintiff's exhibit 5, record, page 33) cleared the Compton Bank three
(3) days later or October 27, 1947, and the record does not reveal when the credit became
final at the First National Bank of Nevada, Las Vegas Branch, but was essentially on a date
later than October 27, 1947. Let us give the respondent the benefit of the assumption that the
One Thousand Six Hundred ($1,600.00) Dollar check cleared on the 27th for the purposes
intended by the receipt. This was three (3) days after the delivery of the checks to counsel for
appellants, at which time the check cleared, and payment was actually made under the terms
of the receipt.
Section 3750, N.C.L.1929 provides as follows:
The claimant of any such lien filed as aforesaid, on the payment of the amount thereof,
together with the costs incurred and the acknowledgment of satisfaction, shall, at the request
of any person interested in the property charged therewith, enter or cause to be entered an
acknowledgment of satisfaction of the same (of) record within ten days from the request, and
for failure of the claimant to enter satisfaction within the time, shall forfeit and pay to the
person making the request the sum of twenty dollars per day until the same shall be
entered, to be recovered in the same manner as other debts.'
sum of twenty dollars per day until the same shall be entered, to be recovered in the same
manner as other debts.'
Thus it is seen that, before a penalty may be imposed under the provisions of this statute,
there are three (3) conditions precedent:
1. The payment in satisfaction of the lien, together with costs incurred;
2. The acknowledgment by the claimant of satisfaction; and
3. The request of the person interested that the acknowledgment of satisfaction of record
be made after payment of the debt.
Paragraph VII of the Complaint alleges that payment was made on the 24th day of
October, 1947, which is untrue according to record. Paragraph VIII of the Complaint alleges
that thereupon (that is, October 24th):
and the said agent of the said defendant in writing agreed to and promised the said
plaintiff to cause to be recorded in the form and manner provided for in Section 3750, N.C.L.,
1929, an acknowledgment and satisfaction of the lien recorded as aforesaid and the
satisfaction of the claim of the said defendants against the said plaintiff as aforesaid.'
(Note that it does not allege that a demand was made of the appellants, but alleges the
appellants' promise.)
The testimony upon the question of demand appears at record, page 27, as follows:
By Mr. Franklin: Q. Upon the paymenttender of checks to Attorney Franklin did you,
on or about the 24th day, or on the 24th day of October, 1947, have occasion to have a
conversation with one Jack Swan?
By Mr. Edwards: A. I did.
Q. How was thatin what manner was that conversation effected? A. I called him up
and told him I had paid that lien off.
Q. Called him on the phone? A. Called him on the phone and told him I paid that lien
off, remove the lien, I don't like the lien on my property.
Q. What date was that? A. He says all right. That was the next day, I believe, after I paid
it.
Q. That would be the 24th day of October? A. Then I asked him if he would send
somebody out there to see what is the matter with the plumbing and he said he would.'
Thus it shows conclusively that respondent gave his checks to his attorney on the 23rd
day of October, on the 24th they were delivered to attorneys for appellants, and a receipt
therefor given, but it does not appear anywhere in the record that any demand was made for
the removal of the lien after the 24th of October, at least two (2) days prior to the payment
and satisfaction of the debt. Thus it is seen that two conditions precedent required by Section
3750, N.C.L. are wanting, to wit:
1. The acknowledgment of satisfaction (the receipt of the 24th of October was a
conditional satisfaction and not absolute), and
2. The demand after payment and satisfaction that the acknowledgment of satisfaction be
entered of record.
Further, on page 6 of appellants' opening brief, the appellants have urged their contention
that: By the great weight of authority it is held that a draft or bank check in the absence of an
express or implied agreement to that effect, is not a discharge of the debt, the presumption
being that the draft or check is accepted on the condition that it shall be paid.
And at that point, on said pages 6 and 7 of the said opening brief, appellants have quoted
from the text of 40 Am.Jur., on page 763, as follows: Debtor's Draft or Check as
PaymentGenerallyWith the exception of a few jurisdictions, the authorities are
unanimous in supporting the rule that the giving of a draft or bank check by a debtor for the
amount of his indebtedness to the payee is not, in the absence of an express or implied
agreement to that effect, a payment or discharge of the debt, the presumption being that the
draft or check is accepted on condition that it shall be paid. On the same principle, a check is
not a good legal tender as against an objection duly made, whether the check is certified or
not, subject, however, to the exception that a tender of a check on a deposit with the
creditor, payable upon the debtor's order, is not open to objection.
against an objection duly made, whether the check is certified or not, subject, however, to the
exception that a tender of a check on a deposit with the creditor, payable upon the debtor's
order, is not open to objection. The buyer of goods at the time and place of payment should
be prepared to pay in lawful money, and has no right to require the buyer to accept a check.
The debt is not discharged until the check is paid, or the check is accepted at the bank at
which it is made payable. This is true even where the person entitled to receive the money
expresses a preference for its payment by check, but does not agree to assume the risk of its
being honored. And it is held that the rule applies to obligations arising out of immediate
transactions as well as to the payment of antecedent debts. In case the check is not honored on
presentation, the original indebtedness for which it was given is not discharged, and the
creditor may recover on such indebtedness, without relying on the liability on the check.
Appellants proceed, in said opening brief, page 7, as follows:
The text cites authorities from thirty-six (36) jurisdictions, including Nevada, Jensen v.
Wilslef, 36 Nev. 37, 132, P. 16, Ann.Cas.1914D, 1220.
What the author terms the minority view is expressed as follows:
Minority View. In some jurisdictions, the giving and receiving of a check, draft, bill, or
order is prima facie payment of a pre-existing debt. But the presumption that a check is given
and received in payment of a debt is not conclusive, and may be wholly overcome by other
evidence, and the intention of the parties, when expressly declared, or when shown by
collateral facts and circumstances, will be allowed to prevail.' 40 Am.Jur. 766.
This appears to us as a situation wherein the appellants have indicated as being impliedly
imputed to respondent a contention suggesting such minority view above mentioned. There is
no such factual situation presented, based upon facts in the evidence, as to justify such
contention, on the part of the appellants, that such minority view should be imputed to
respondent.
presented, based upon facts in the evidence, as to justify such contention, on the part of the
appellants, that such minority view should be imputed to respondent.
The Receipt furnished by the firm of Taylor & Gubler, as agent for the appellants, and
handed to George E. Franklin, Jr., attorney for the respondent, Edgar Edwards, was expressly
stated therein to have been conditional, and not absolute. Appellants, in such Receipt, have
correctly stated, the presumption being that the draft or check is accepted on the condition
that it shall be paid (italics ours), and such conditional acceptance by the appellants, as
shown by the language of the said Receipt, was not objected to, but at least, was impliedly
acceded to and acquiesced in by the respondent.
In appellants' reply brief, on pages 1 and 2 thereof, they have continued to contend, in
relation to Hooker v. Burr, 137 Cal. 663, 70 P. 778, 99 Am.St.Rep. 17, that: The Hooker of
California case cited and quoted by counsel presents a factual situation as far distant from the
instant case as the poles. In the Hooker case, the party making a payment called the sheriff
and told him he had Ten Thousand Five Hundred ($10,500.00) Dollars in gold with which to
pay him. The sheriff responded that he would rather have a certified check. Thereupon, the
gold was deposited in the bank by the payer, for which he received a certified check, and took
it to the sheriff, by whom the check was accepted. This transaction is quite different from that
in the Ruppert-Edwards case where the checks were accepted upon the condition that they be
paid.
It is true that in the Hooker case, in view of the facts therein existent, the court considered,
under the circumstances of that case to the effect that gold coin had been offered to the sheriff
and upon his request and for his convenience a certified check was substituted, that, therefore,
the minority rule, rather than the majority rule, was applicable, in the opinion by Henshaw, J.,
and concurred in by the other justices of the supreme court of California.
California. The appellants in the instant case have said that: This transaction is quite
different from that in the Ruppert-Edwards case where the checks were accepted upon the
condition that they be paid. The appellants have thus indicated, as we view it, a great ado
about nothing, for the reason that it is conceded by all parties in the instant case that the
transaction to the effect that the checks involved were paid conditionally and not absolutely
was in accordance with the majority rule.
With reference to the opinion in the Hooker case, while, under the particular facts involved
there, it followed the so-called minority rule, the opinion fully recognized the majority rule,
and made apt quotations from it.
In insisting upon such contention of a difference between the Hooker case and the instant
case, appellants, on said page 2 of their reply brief, have proceeded, clearly, to state as
follows: In addition to the foregoing authority, respondent quotes 40 Am.Jur. 775, and
contends that that is the rule applicable in this case, and in support of the text, under Notes 19
and 20, there are cases cited from Minnesota, Mississippi, California, New Mexico, New
York and Texas, the California case being Hooker v. Burr above criticized, yet counsel terms
this the overwhelming weight of authority. We cannot agree with counsel that the cited
authorities overwhelmingly outweigh those of thirty-eight (38) jurisdictions, including
Nevada, subscribing to the doctrine that the giving of a draft or bank check by a debtor for the
amount of his indebtedness is not, in the absence of an agreement, express or implied to that
effect, a payment or discharge of the debt. The language of the author in the text heretofore
cited in the Appellants' Opening Brief is with the exception of a few jurisdictions, the
authorities are unanimous in supporting the rule that the giving of a draft or bank check by a
debtor for the amount of his indebtedness to the payee is not, in the absence of an expressed
or implied agreement to that effect, a payment or discharge of the debt.' 40 Am.Jur. 763.
Thus, to say the least, it appears that the appellants' contention, above mentioned, as to any
such difference between the Hooker case and the Ruppert-Edwards case seems to emanate
from confusion of the doctrine or rule which is clearly set forth in 40 Am.Jur. 775, with that
in the same volume on page 763. The former of said rules, namely, that on page 775, relates
to the payment of checks conditioned to be paid upon presentation and not absolutely, and the
latter rule relates to the unconditional and absolute receipt and delivery of checks as
constituting payment.
The only distinction we have discerned in such a respect as appellants have stressed is a
conception more fanciful than real, namely, that somehow, a check being, as in the instant
case, conditional, same is, in legal contemplation, deemed to be payment by the payer, not as
of the date when same was delivered to the payee (by what has been called relation back),
but, instead, that, to become actually effectual, the check would be deemed cleared upon the
date of such actual payment and discharge, without regard to such principle of relation
back. So, in their persistency in adhering to such general rule set forth in 40 Am.Jur. 763,
appellants, apparently, have completely disregarded the principle or doctrine of relation
back, as set forth in 40 Am.Jur. 775, and, in effect, hark back to the general principle or
doctrine set forth on page 763, Am.Jur. They have served thus to contend that the authorities
contained in notes 19 and 20 cited to said page 775 merely relate to the minority rule; but the
fact is that said cases cited in such notes 19 and 20 do truly represent the overwhelming
weight of authority when they are coupled with the many other authorities contained in 48
C.J., pages 618-619, cited to the text, and annotated in notes 26 and 27, all of which relate to
the principle of relation back.
It will be clearly apparent that the appellants, by disregarding the proper doctrine, or, at
least by their failure to recognize and give regard to same, have indicated support of the
contention that, even though the check of $1,600 was cleared upon receiving same back from
the Compton bank on October 27, 1947, the payment of the check did not operate
retroactively to the date October 24, 1947, upon which the check was delivered, but only
upon the later date upon which same was actually cleared.
the Compton bank on October 27, 1947, the payment of the check did not operate
retroactively to the date October 24, 1947, upon which the check was delivered, but only
upon the later date upon which same was actually cleared. This is not the law. As a general
proposition, the majority view is that, in the event payment is conditional, the discharge is not
actually to become effectual until the check is paid. It is equally true that upon such condition
being fulfilled, by the check having been paid upon presentation, such payment, theretofore
conditional, becomes absolute. In section 86, page 775, 40 Am.Jur., above repeatedly referred
to, the language of a very important statement of the text is: On such payment of the check,
the debt is deemed to have been discharged from the time the check was given. (Italics ours.)
We shall now state and quote said section 86, page 775 (40 Am.Jur.), as follows: When
Payment by Check is Deemed to Have Been Made.Payment by bill or check becomes
absolute payment of the debt when the check is paid on presentation. On such payment of the
check, the debt is deemed to have been discharged from the time the check was given. Thus it
has been held that a contract which is invalid because made on Sunday is not relieved of its
invalidity by reason of the fact that a check given on that day was paid on a secular day. And
if under the circumstances of a particular case it is necessary to make a payment at a
particular time, as for example to satisfy the part payment provision of the statute of frauds, a
check given and received at that time but not cashed until after the specified time, will
operate as a payment as of the date when given.
As the first sentence of the said last mentioned paragraph is significant, we feel
constrained to repeat it, as follows: Payment by bill or check becomes absolute payment of
the debt when the check is paid on presentation. (Italics ours.) In other words, the proper
conception of the meaning of the sentence apparently is: payment, from the instant of
completed delivery of the bill or check constitutes payment, but according to the weight of
authority, unless some further agreement or act sufficiently proving actual and immediate
intent to discharge the debt is shown, such payment, although same is payment, is
conditional merely, and becomes complete or absolute payment when the bill or check is
presented and paid.
weight of authority, unless some further agreement or act sufficiently proving actual and
immediate intent to discharge the debt is shown, such payment, although same is payment, is
conditional merely, and becomes complete or absolute payment when the bill or check is
presented and paid.
So, in such a transaction as that involved in the instant case, payment is payment when
completed delivery is had, and to that extent is evidence of the existing obligation, but it is
conditional merely, according to the great weight of authority, and continues such until the
check is paid on presentation; thereupon, the condition having been satisfied by the check
having been paid, the same becomes absolute. The payment conditionally contemplated is not
what is construed properly as a condition precedent, but rather a condition subsequent. The
condition having been subsequently satisfied by the check having been paid, the debt is
deemed to have been discharged from the time the check was given. (Italics ours.)
The cases to which we have referred, cited in notes 19 and 20 to the said text in 40
Am.Jur., sec. 86, page 775, are: McFadden v. Follrath, 114 Minn. 85, 130 N.W. 542, 37
L.R.A.,N.S., 201; Tonnar v. Wade, 153 Miss. 722, 121 So. 156, citing R.C.L.; Hooker v.
Burr, 137 Cal. 663, 70 P.778, 99 Am.St.Rep. 17, affirmed in 194 U.S. 415, 24 S.Ct. 706, 48
L.Ed. 1046; Franciscan Hotel Co. v. Albuquerque Hotel Co., 37 N.M. 456, 24 P.2d 718,
citing R.C.L.; Hunter v. Wetsell, 84 N.Y. 549, 38 Am.Rep. 544; Texas Mut. L. Ins. Ass'n. v.
Tolbert, 134 Tex. 419, 136 S.W.2d 584, citing R.C.L.
1. In commercial transaction, particularly, the principle reflects the intention that sound
public policy is better served by facilitating, reasonably, and also with practical efficiency and
dispatch, the advancement of such transactions, to the end that the public economy and the
benefits to flow from advantageous commercial arrangements be encouraged, and such
business transactions, generally, enhanced and made more prosperous. So, there is very good
reason why, in many of the decisions or opinions of our courts, it has been found that in
the many instances in which checks are forwarded from a person or a banking institution
to another person or a bank in order that collection of such check be accomplished, the
very generally accepted custom is that in such transactions, as in instances in which bills
or checks are employed, the presumption, prima facie, is that the drawer of such bill or
check is trustworthy and to be considered honest and reliable, at least until the contrary
reasonably appears.
is very good reason why, in many of the decisions or opinions of our courts, it has been found
that in the many instances in which checks are forwarded from a person or a banking
institution to another person or a bank in order that collection of such check be accomplished,
the very generally accepted custom is that in such transactions, as in instances in which bills
or checks are employed, the presumption, prima facie, is that the drawer of such bill or check
is trustworthy and to be considered honest and reliable, at least until the contrary reasonably
appears. Such presumption is, of course, a rebuttable presumption, but, very generally, has the
favor of the courts, subject, of course, to certain exceptions, which it is not necessary to
mention here. In connection with such a presumption, it seems appropriate to quote the
language in the last sentence of section 85, page 774, of 40 Am.Jur., which is the section just
preceding section 86, supra, which we have quoted in full and to which we have repeatedly
referred and considered. Such last sentence of section 85 is on pages 774 and 775, and is as
follows: The presumption that a check or draft given in payment was intended merely as a
conditional payment is not destroyed by crediting it to the debtor's account, or by the act of
the bank upon which the check or draft was drawn in charging it to the drawer's account or
stamping it as paid, if it is not in fact paid. (Italics ours.)
The above statement of the text of American Jurisprudence illustrates the feasibility of
facilitating such transactions. If there should occur a violation or breach of the condition, such
payment being intended merely as conditional, such crediting of the account is withdrawn and
the stamping as paid is cancelled, leaving the obligation or debt in full force and effect. If,
however, the condition has been satisfied by payment, the debt is deemed to have been
discharged or extinguished as from the time the check was originally given.
We have no doubt that the appropriate sections and pages above specified, unequivocally
and without any substantial conflict, clearly record the precise question just above stated,
and the great weight of authority supporting the text, and the cited cases.
substantial conflict, clearly record the precise question just above stated, and the great weight
of authority supporting the text, and the cited cases. Both the appellants and the respondent
have, insofar as the authorities and the text disclose, confined themselves to the text and the
authorities presented and dealt with in the above-stated sections and pages of 40 American
Jurisprudence.
In addition to those, we have considered the text and the cases cited which appear in 48
Corpus Juris. In particular, we shall first deal with the following section:
[Sec. 50] 3. Checksa. In General. The delivery to, or acceptance by, the creditor of his
debtor's check, although for convenience often treated as the passage of money, is not
payment, even though the check is certified before delivery, in the absence of any agreement
or consent to receive it as payment, or any laches or want of diligence on the part of the
creditor, or the negotiation of the check by him.
Effect of Payment by Drawee. Where a check delivered to a creditor, although without
any agreement or consent on his part to receive it as absolute payment, is in fact paid in due
course, the debt is discharged pro tanto, as of the time at which the check was received; but a
payment other than in due course does not extinguish the debt. A check is accordingly often
referred to as conditional payment, the condition being its collectability from the bank upon
which it is drawn; but it is not such a conditional payment as to release security. (Italics
ours.) 48 C.J., pages 617-619, appended to which a great number of cases are cited, and
annotated, in the notes 19 to 31, inclusive.
We now refer, particularly, to said notes 26 and 27, on said pages 618 and 619, and in
which cases to which reference is made include federal and English cases and those from
about twenty states in the United States of America. In the annotation in note 27, on page
619, among many other cases, are: Eng.Hadley v. Hadley (1898) 2 Ch. 680; Elwell v.
Jackson, Cab. & E. 362; compare Peck v. Parsons-Haddock Co., Ltd. (B.C.) 7 West Wkly.
West Wkly. 669 (holding that payment by check dates from the delivery of the check if it is
duly honored, but if it is dishonored upon presentment and later paid by the drawee upon a
subsequent presentment, the payment does not relate back but takes effect only from the date
upon which it is actually made).
We have considered and read from a considerable number of both those cases cited in 40
American Jurisprudence and in 48 Corpus Juris, above mentioned, and we do not deem it
advisable, in view of the unanimity of the authorities as to the precise question involved, to
extend this opinion unduly, and will content ourselves with the detailed references to the
above-mentioned texts, and to the many decided cases annotated and cited therein.
It appears proper to discuss, further, briefly, a portion of the matters hereinabove quoted
from pages 4 and 5, and from page 6, of appellants' opening brief, and which matters are
included in assignment of error No. 1, same on said pages 4 and 5 being repeated, in order to
direct attention to the following statements of appellants, in their opening brief, viz.:
Thus it would seem that, before a penalty may be imposed under the provisions of this
statute, there are three (3) conditions precedent; (Italics ours.)
1. The payment in satisfaction of the lien, together with costs incurred;
2. The acknowledgment by the claimant of satisfaction; and
3. The request of the person interested that the acknowledgment of satisfaction of record
be made after payment of the debt. (Pages 4 and 5, above mentioned.)
And on said page 6 is the following:
Thus it shows conclusively that respondent gave his checks to his attorney on the 23rd
day of October, on the 24th they were delivered to attorneys for appellants, and a receipt
therefor given, but it does not appear anywhere in the record that any demand was made for
the removal of the lien after the 24th of October, at least two (2) days prior to the payment
and satisfaction of the debt.
the debt. Thus it is seen that two conditions precedent required by Section 3750, N.C.L. are
wanting, to wit:
1. The acknowledgment of satisfaction (the receipt of the 24th of October was a
conditional satisfaction and not absolute), and
2. The demand after payment and satisfaction that the acknowledgment of satisfaction be
entered of record.
The above-mentioned two last conditions precedent, so-called (numbered 1 and 2), are
intended, particularly as to the acknowledgment of satisfaction, to bring out, as we
conceive it, the contention on the part of appellants that, because the requirements of Section
3750, N.C.L. should be strictly construed, same should be deemed to mean:
2. That the checks, although paid by the Compton bank and forwarded to the Las Vegas
bank and there cleared October 27, 1947, and not having been thus cleared until October 27,
1947, and until then being conditional, and not absolute, the promise or agreement contained
in the Receipt set forth on page 3 of appellants' opening brief, and hereinbefore copied in
this opinion, * * * that as soon as * * * checks and each of them have cleared, * * *
appellants would execute appropriate release discharging the mechanic's lien heretofore filed
by said company against the property of the respondent (italics ours), must be disregarded and
rendered abortive and of no effect; that the proper conception is, apparently, that, due to the
fact that a penalty is involved in the instant case, it makes no difference that, upon receiving
the checks, appellants, by their agents and attorneys, Messrs. Taylor & Gubler, represented or
promised that the acknowledgment of satisfaction, impliedly, at least, would be complied
with, because the checks had then been paid, but that, on the contrary, it may be deemed that
such acknowledgment of satisfaction may be required only after actual payment and
clearance, by reason of the language of section 3750, to wit, on the payment of the amount
thereof, together with the costs incurred and the acknowledgment of satisfaction, shall * * *"
{italics ours), and that same certainly does not mean before but only after such payment,
pursuant to the strict letter of the language of said section 3750.
* * * (italics ours), and that same certainly does not mean before but only after such
payment, pursuant to the strict letter of the language of said section 3750. And it is, in effect,
contended by appellants that, therefore, the respondent not having personally or by his
attorneys after such payment ever or at all made such demand for such acknowledgment of
satisfaction, no basis justifying appellants' failure to carry out the promise or agreement could
properly sustain a cause of action against appellants, nor justify a penalty such as has been
imposed by the findings and judgment of the district court. The answer to that contention is
twofold:
1.The terms of the Receipt expressly constituted the promise or agreement to the
effect that as soon as said checks and each of them have cleared, A. R. Ruppert Plumbing &
Heating Company will execute appropriate release discharging mechanic's lien heretofore
filed * * *. (Italics ours.) The provisions of section 3750 would not justify such an
ultratechnical construction as to disregard the promise or agreement and to confine it so
strictly to the language of section 3750 as to require formally or expressly a request for the
acknowledgment of satisfaction, irrespective of the agreement and regardless of the fact that
respondent relied upon it. Such a formal renewal of the request for the acknowledgment of
satisfaction would have been but an idle ceremony.
3. 2.The express promise or agreement in the Receipt that the A. R. Ruppert Plumbing
& Heating Company would execute appropriate release discharging mechanic's lien * * *
upon the checks having been paid, clearly implied that such appropriate action, including
acknowledgment of satisfaction, preliminary to the execution of such release and discharge,
would be had, in accordance with the well settled equitable axiom that an act shall be
deemed done which ought to be done.
3.Furthermore, appellants themselves have said (on page 6, lines 9 and 10 of their
opening brief), the receipt of the 24th of October was a conditional satisfaction and not
absolute."
of the 24th of October was a conditional satisfaction and not absolute. It follows, therefore,
that such acknowledgment of satisfaction, being admitted, but being only conditional and not
absolute, no further action on the part of the respondent as to such acknowledgment was
required, for the reason that it is clear that by proper analogy and bearing in mind the great
weight of authority as to a check tendered conditionally, having thereafter been fully paid and
clearance had, and the check of $1,600 paid on October 27, 1947, the implied
acknowledgment of satisfaction, theretofore conditional, should have thereupon,
simultaneously, been deemed satisfied, and acknowledgment of satisfaction immediately
considered to be fully effective, as of the date, October 24, 1947.
The second of the propositions with which we are confronted is the contention, above
stated, by appellants, and, we think, more accurately phrased and designated by them, is the
statement numbered 3, on page 5 of their opening brief, rather than that numbered 2, on
page 6 thereof, the former of which is repeated as follows: 3. The request of the person
interested that the acknowledgment of satisfaction of record be made after payment of the
debt. Why, necessarily, after payment? There is nothing which indicates to us that because
of the fact that respondent having, on or about October 24, 1947, requested to one Jack Swan,
an agent and employee of appellants, that the lien be removed, and to which said agent, Swan,
had agreed, and to which, on the 24th day of October, 1947, appellants by their agents and
attorneys had agreed, upon condition that the checks be paid, the checks having cleared,
particularly the $1,600 check on the 27th day of October, 1947, that such request was
ineffectual and should have been disregarded. Bearing in mind fully section 3750, it was, in
our opinion, entirely unnecessary and not required that, on the precise day, namely, October
27, 1947, there should have been a renewal, by respondent, of such request which had been
made on or about said October 24. The matter of such request by respondent should have
been by appellants deemed impliedly conditional, and, in effect, was merely tentative and
to be considered held in abeyance until the $1,600 check had been paid.
deemed impliedly conditional, and, in effect, was merely tentative and to be considered held
in abeyance until the $1,600 check had been paid. Upon such conditional payment of the
check having been satisfied, on October 27, 1947, the request made and accepted two or three
days before, and which should have been deemed impliedly conditional, as aforesaid,
likewise should have been deemed thereby satisfied, simultaneously, and should have been
deemed to have become fully effective and absolute, as of the date when the check was
presented and paid. The time of such request, on or about October 24, 1947, was doubtless
the same day as that of the conditional payment to the bank of the $1,600 check. The check
had been delivered by Mr. Edwards to Mr. Franklin, his attorney, on the 23d day of October,
1947, and the request was made by the respondent, Mr. Edwards, to Mr. Swan, agent for the
appellants, on or about October 24, 1947, which, as Mr. Edwards stated, was, as he believed
from the evidence the next day after October 23, 1947, upon which date the check was
delivered by him to Mr. Franklin, and the delivery being the same date, October 24, 1947,
upon which the checks were received by Mr. Gubler, of the firm of Taylor & Gubler, and
thereupon deposited.
4. By reason of the principles which we have heretofore fully considered and treated in this
opinion, and which are to the effect that the conditional payment of a check, forwarded in due
course and actually paid, has thereupon become absolute, and that, therefore, such check is, in
legal effect, deemed to have been given as of the date of its delivery, should be applied
equally, it is believed, to such request as respondent made in the instant case. This is true not
only by reason of the fact that the appellants' agent, Mr. Swan, promised or agreed to same,
but also because such a condition, similar to that involved in the dependent principal
transaction in the instant case, as to the two checks delivered conditionally but promptly paid
and cleared, render it highly advisable, as we have shown before, that such commercial
transactions be diligently facilitated, and that such a request accords to such reasoning.
as we have shown before, that such commercial transactions be diligently facilitated, and that
such a request accords to such reasoning. Such diligence, promptness and efficiency should
not be retarded, but rather sanctioned and encouraged. Judge Henderson's clear and forthright
opinion, above mentioned, was right and commendable.
The principal assignment of error, No. 1, has been fully considered, and we have found
same without merit.
The other assignments of error, Nos. 2, 3, 4, 5 and 6, being dependent upon the principles
which we have fully treated and determined in discussing assignment of error No. 1, we find,
likewise, to be without merit.
5, 6. We have not found it necessary to discuss in detail the question of forfeiture, or the
penalty imposed resulting from the appellants' complete failure to release and discharge the
mechanic's lien heretofore filed by A. R. Ruppert Plumbing & Heating Company against the
property of Edgar Edwards, described as Lots One (1), Two (2), Three (3) and Four (4),
Arrowhead Addition to the City of Las Vegas, Clark County, Nevada. Ordinarily, forfeitures
and penalties are not favored. Notwithstanding that fact, the law, in section 3750, has made
very clear the necessity, which is reasonable and beneficial, that such a lien be released and
discharged within the time fixed by the statute. And in the event that, as in the instant case,
the appellants, or claimants of such lien, filed as aforesaid, and the facts having been found to
exist indicating the lien should be released or discharged, have failed within ten days from
such request to enter, or cause to be entered, of record a due acknowledgment of satisfaction
of the lien, reasonable penalties are provided by the statute. It is the law, by virtue of the
mandatory provisions of the statute, that the prescribed penalty, thus imposed, be upheld.
7. In view of the evidence, the period of ten days, which commenced October 24, 1947,
expired November 3, 1947. The penalty, therefore, for such failure, accrued on said
November 3, 1947, and continued, by the limitation of the statute, until January 10, 194S,
two months and seven days, or 67 days, at $20 per day, after appellants were requested
by the respondent to release said lien, and which, upon clearance of the $1,600 check, on
October 27, 1947, and which related back to said October 24, 1947, they failed to do.
on said November 3, 1947, and continued, by the limitation of the statute, until January 10,
1948, two months and seven days, or 67 days, at $20 per day, after appellants were requested
by the respondent to release said lien, and which, upon clearance of the $1,600 check, on
October 27, 1947, and which related back to said October 24, 1947, they failed to do. This
was correctly stated by Judge Henderson in his opinion. There became due, therefore, upon
the basis of such penalty against appellants and in favor of respondent the sum of $1,340.
In the last paragraph of appellants' reply brief, on page 3 thereof, appellants have asserted
that there is no evidence, first, that the respondent owned the property so described, and
secondly, there is no evidence that the lien was filed upon the described property.
Regardless of other evidence, the evidence disclosed by the provisions or terms of the
Receipt, plaintiff's exhibit 7, contained the following:
It is hereby agreed that as soon as said checks and each of them have cleared, A. R.
Ruppert Plumbing & Heating Company will execute appropriate release discharging
mechanic's lien heretofore filed by said company against the property of Mr. Edgar Edwards
described as Lots One (1), Two (2), Three (3) and Four (4), Arrowhead Addition to the City
of North Las Vegas, Clark County, Nevada. (Italics ours.)
Dated this 24th day of October, 1947.
A. R. Ruppert Plumbing & Heating Company
By V. Gray Gubler of Taylor & Gubler, Attorneys for said A. R. Ruppert Plumbing
and Heating Company.
8, 9. The question of title was only incidentally, if at all, involved, and the above-recited
facts in the second paragraph of the said Receipt, regardless of the mere denial of the
answer, were sufficient evidence to establish the fact of both the lien and the ownership of the
property. In view of the evidence, the appellants are clearly estopped to claim otherwise. It
would have been entirely wrong to have sanctioned litigating the property of respondent
in order to determine a matter of title, and thereby question whether or not the lien
should have been released and discharged under the existing facts and circumstances.
entirely wrong to have sanctioned litigating the property of respondent in order to determine a
matter of title, and thereby question whether or not the lien should have been released and
discharged under the existing facts and circumstances. The appellants, who received payment
as agreed, could not be allowed or permitted still to contend that they were not required to
have released and discharged the lien, upon the record, by the proper entry of satisfaction.
One cannot have his cake and eat it too.
It is our belief that we have sufficiently studied and considered each and all of the
controversial questions involved. We commend, and in all respects fully approve, the opinion
of the Honorable A. S. Henderson, district judge, hereinabove copied verbatim and set forth
in the instant case. It is ordered, therefore, that the judgment appealed from and the order
denying appellants' motion for a new trial be, and hereby are, affirmed.
Badt and Eather, JJ., concur.
____________
67 Nev. 227, 227 (1950) State Farm Mut. Auto. Insurance Co. v. Cassinelli
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation,
Appellant, v. PETE CASSINELLI, Jr., Respondent.
No. 3579
April 3, 1950. 216 P.2d 606.
Action on automobile policy insuring against public liability and property damage by Pete
Cassinelli, Jr., against the State Farm Mutual Automobile Insurance Company, a corporation.
The Second Judicial District Court, Washoe County, A. J. Maestretti, Judge, department No.
2, entered a judgment for the plaintiff and an order denying a new trial and the defendant
appealed. The Supreme Court, Badt, J., held that the plaintiff was precluded from recovery by
reason of his failure to give certain notices required by the policy.
Judgment reversed and cause remanded with direction to enter judgment for the
defendant.
1. Insurance.
An automobile policy insuring against bodily injury liability and property damage liability with respect to
presence of insured in any other private passenger automobile covered insured's liability arising out of
collision involving son's automobile which insured and son were using on a business mission and which
son was driving.
2. Insurance.
The word immediately in automobile public liability and property damage indemnity policy requiring
insured to immediately forward to insurer summons and other process received by insured does not mean
without lapse of any time but within reasonable time under circumstances.
3. Evidence.
It is a well-known fact that the great increase in automobile accidents has led to material increases in
premium rates for indemnity insurance.
4. Insurance.
Insured's four-months' delay in notifying insurer of suit against insured and in sending insurer copies of
summons and complaint was not within reasonable time and was not excused by insured's belief that
automobile public liability and property damage indemnity policy had lapsed and that insured was insured
in another company, and insured, without regard to whether insurer was prejudiced by such delay, could
not maintain action against insurer due to failure to perform the condition precedent, stipulated in policy as
such, of giving notice of suit and forwarding summons and complaint to insurer within reasonable time.
James W. Johnson, Jr., of Fallon, Griswold & Vargas, of Reno, and Russell A. Harris, of
Sacramento, California, for Appellant.
Lloyd v. Smith, of Reno for Respondent.
OPINION
State Farm Mutual Automobile Insurance Company has appealed from a judgment in favor
of Pete Cassinelli, Jr., its insured, under an insurance policy indemnifying him against public
liability and property damage. It has also appealed from the order denying a new trial. The
appeal raises two questions, both of which were decided adversely to appellant by the trial
court.
decided adversely to appellant by the trial court. The first is that the nature of the loss
involved was not covered by the terms of the policy. The second is that the respondent is
precluded from recovery by reason of his failure to give certain notices required by the policy.
(1) By the terms of the policy the company agreed, in consideration of the payment of the
premiums, and subject to the * * * conditions and other terms of the policy:
Coverage ABodily Injury Liability. To pay on behalf of the insured all sums which the
insured shall become obligated to pay by reason of the liability imposed upon him by law for
damages, including damages for care and loss of services, because of bodily injury, including
death at any time resulting therefrom sustained by any person or persons, caused by accident
and arising out of the ownership, maintenance or use of the automobile.
Coverage BProperty Damage Liability. To pay on behalf of the insured all sums which
the insured shall become obligated to pay by reason of the liability imposed upon him by law
for damages because of injury to or destruction of property, including the loss of use thereof,
caused by accident and arising out of the ownership, maintenance or use of the automobile.
Also:
It is further agreed that as respects insurance afforded by this policy under coverages A
and B the company shall:
(a) Defend in his name and behalf any suit against the insured alleging such injury or
destruction and seeking damages on account thereof, even if such suit is groundless, false or
fraudulent; but the company shall have the right to make such investigation, negotiation and
settlement of any claim or suit as may be deemed expedient by the company.
Further:
Such insurance as is afforded by the policy in Coverages A and B also applies: * * *
(2) To the named insured, * * * with respect to the operation of any other private
passenger automobile by any such insured, or by a private chauffeur or domestic servant in
the employ of any such insured, and with respect to the presence of any such insured in any
other private passenger automobile, * * *.
The automobile described in the policy is a 1937 LaSalle sedan owned by the insured.
The first controversy arises out of the meaning of the insurance afforded by the policy in
coverages A and B * * * to the insured * * * with respect to the presence of any such insured
in and other private passenger automobile. * * *.
The insured was riding, not in the insured's LaSalle sedan, but in a Buick car owned by
and being driven by his adult son Raymond Cassinelli, when such Buick became involved in
a collision with another car, and as a result whereof persons riding in such other automobile
were injured. Although a further recital of the facts will be required later, it will suffice at this
time to say that a judgment was thereafter obtained against respondent by one of such injured
third persons, and two other actions commenced against him were compromised and settled.
Appellant contends that these items were not covered by its policy. Neither party has
submitted to this court, nor has the court found in its own investigation, any decision
purporting to interpret or construe a similarly worded coverage.
Appellant's brief, further condensing the wording of the policy to determine its present
application, thus recites its terms: To pay on behalf of the insured all sums which the insured
shall become obligated to pay by reason of the liability imposed upon him by law for
damages caused by accident, and with respect to the presence of any such insured in any other
private passenger automobile.
In order that we may correctly and fairly state appellant's contention that the instant
liability was not covered by the policy, we quote from its brief: "If we are to accept the
trial court's decision, the logical conclusion which we must reach is that the respondent
must contend that the appellant herein agreed by this policy of insurance to insure him
against liability as the result of the negligence of any person with whom he might have
any contact, regardless of the fact that neither the automobile which is insured nor the
respondent has any direct connection either legally or logically with the proximate cause
of the accident * * * and unless this respondent was held liable simply because he was
present in that car, then even under the strained interpretation of the trial court there
would be no coverage."
covered by the policy, we quote from its brief: If we are to accept the trial court's decision,
the logical conclusion which we must reach is that the respondent must contend that the
appellant herein agreed by this policy of insurance to insure him against liability as the result
of the negligence of any person with whom he might have any contact, regardless of the fact
that neither the automobile which is insured nor the respondent has any direct connection
either legally or logically with the proximate cause of the accident * * * and unless this
respondent was held liable simply because he was present in that car, then even under the
strained interpretation of the trial court there would be no coverage.
In the course of the oral argument counsel for appellant was requested by the court to
explain further his theory of the meaning of the clause insuring respondent against liability
with respect to the presence of any such insured in any other private passenger automobile,
and replied that such clause applies only in those cases wherein the state may impose a
liability by law for damages predicated upon the fact, and the fact alone, that the named
insured in the policy could be held liable simply because he was present in that car. Counsel
explained at some length the history of legislation in various states and the growing trend to
fix liability for all accidents, and in which the indemnity companies sought to keep pace with
provisions for a complete coverage, and fix their rates accordingly. Counsel stated further: It
is not beyond the realm of conception at all that one state, and possibly many states may have
laws imposing a liability upon all persons riding in an automobile, in the event that
automobile becomes involved in an accident. * * * We contend that this provision was put
into this policy because it was not only an effort to comply with, but to anticipate, the
requirements of the various state laws. Some states may enact a law making each person
riding in an automobile on its highways responsible for the conduct of the driver of that
automobile * * * and if anything happens he is liable for damages because of his presence
in that automobile."
that automobile * * * and if anything happens he is liable for damages because of his
presence in that automobile. In other words appellant insists that the coverage does not apply
in a case where liability results because, for example, the insured was directing the operation
of the car in which he was riding as a passenger or because at the time he was engaged in
some joint venture with the driverassuming a proper case for liability under such
circumstances.
1. We are unable to accede to this view. It appears that in the action of Mabel A. Miller
against respondent and others the court found that respondent Pete Cassinelli, Jr., and his son
Raymond Cassinelli had been on a business mission to Yerington, Nevada; that on their
return therefrom, and at the intersection of Mill Street and Kietzke Lane in Reno, Washoe
County, Nevada, Raymond Cassinelli drove through a stop sign and into Mrs. Miller's car,
damaging the same and breaking her leg, and that, at the time, Raymond was driving north on
Kietzke Lane at a rate of speed of forty-five miles an hour and that Mrs. Miller was driving
east on Mill Street at twelve miles an hour. We agree with the trial court that it was precisely
this kind of liability against which respondent was insured by the clause in question.
(2) The second point involves the question of whether the insured was precluded from
recovery by reason of his failure to give the notices required by the policy.
The clauses relied upon by appellant are as follows:
4. Notice of Accident-Claim or Suit-Coverages A and B. Upon the occurrence of an
accident written notice shall be given by or on behalf of the insured to the company or any of
its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to
identify the insured and also reasonably obtainable information respecting the time, place and
circumstances of the accident, the names and addresses of the injured and of available
witnesses. If claim is made or suit is brought against the insured, the insured shall
immediately forward to the company every demand, notice, summons or other process
received by him or his representative.
summons or other process received by him or his representative.
7. Action against Company-Coverages A and B. No action shall lie against the company
unless, as a condition precedent thereto, the insured shall have fully complied with all the
terms of this policy. * * *
The dates and circumstances involved are as follows: The accident above referred to
occurred November 23, 1945. Mabel A. Miller, one of the injured persons, filed her
complaint against Raymond Cassinelli, and thereafter amended the same to include Pete
Cassinelli, Jr., respondent herein, as a party defendant. Such amended complaint was served
on Pete Cassinelli, Jr., September 19, 1946. He had in the meantime no knowledge that
liability on his part was claimed by Mrs. Miller. On January 16, 1947, a little less than four
months after he had been served with such amended complaint, Pete Cassinelli, Jr., the
respondent herein, notified the appellant insurance company of such service and forwarded
copies of the summons and amended complaint. At the time of such notice Mrs. Miller's
action against him had been set for trial for February 20, 1947, a period of thirty-five days
after the notice. It appeared however that a continuance, if requested, would have been
granted, presumably for such period as to give a reasonable opportunity for preparation or
further preparation for defense. The only explanation for the four months delay in forwarding
the suit papers and giving notice of the action was that the insured thought that his policy had
lapsed and that he was insured in another company. His policies were at all times in his
possession in a file in his home.
It becomes evident from a reading of the authorities that the effect of the failure to give
notice and forward suit papers depends upon the wording of the policy. The law is thus
summarized in 29 Am.Jur. 828, Insurance, sec. 1105, under the title, Necessity of
Compliance with Requirement:
Provisions making the furnishing of proofs of loss within a stipulated time a condition
precedent to liability on the part of the insurer, or providing for forfeiture for failure to file
within that time, will ordinarily be given effect, provided a satisfactory excuse for the
noncompliance or the delay in compliance is not given.
within a stipulated time a condition precedent to liability on the part of the insurer, or
providing for forfeiture for failure to file within that time, will ordinarily be given effect,
provided a satisfactory excuse for the noncompliance or the delay in compliance is not given.
There is, however, a conflict of opinion on the question whether the provision in the usual
form of policy, that notice and proofs of loss must be made within a certain time, is a
condition precedent so far as giving notice or furnishing proofs of loss in the prescribed time
is concerned. Some courts hold that the failure to comply with the policy within the period
specified defeats a recovery on the policy. The more generally accepted rule, however, is that
the requirements of an insurance policy that the insured shall give notice and furnish proofs
of loss within a certain time are conditions precedent to the right to sue, but failure to comply
with such requirements within the time stipulated does not avoid the policy or work a
forfeiture in the absence of a stipulation in the policy to that effect. Such failure merely
postpones the day of payment, provided notice is given and proofs of loss are furnished
within such time as will enable the insured to bring his suit within the time limited by the
policy.
It is generally held that a provision in a liability policy for immediate,' prompt,' etc.,
notice is of the essence of the contract and that a failure to comply with such provision will
defeat recovery upon the policy, at least where the provision is preceded by words expressly
declaring the insurance subject to the following conditions,' among which is listed the
provision in question. It has been held that this rule is applicable although the insurer does not
show injury or prejudice resulting from the failure to give the notice as required. Some
policies expressly provide that a literal and strict compliance with the requirements of a
condition as to notice of accident, etc., is of the essence of the contract and a condition
precedent to recovery under the policy. Certainly, a failure to give the immediate' notice of
accident required by the clause will prevent a recovery where the policy expressly states
that 'this insurance is subject to the following conditions, which are to be construed as
conditions precedent of this contract,' the clause in question being among those referred
to.
the policy expressly states that this insurance is subject to the following conditions, which
are to be construed as conditions precedent of this contract,' the clause in question being
among those referred to. On the other hand, it has been held by some courts that a failure to
comply with the clause requiring immediate' written notice of accident does not bar a
recovery upon the policy where it appears neither that the policy expressly provides that a
breach of the clause shall work a forfeiture nor that the breach caused any injury or prejudice
to the insurer.
While at first blush the foregoing statement may seem confusing and self-contradictory, it
is not so when we confine our attention to the cases involving policies that definitely provide
that the requirements for notice are conditions precedent, and that no action shall lie against
the company without compliance. Such selection eliminates the mass of conflicting cases
which require a construction as to whether (1) the requirement for notice is simply a
condition subsequent which will not defeat recovery in the absence of prejudice,
1
or (2) such
requirement is of the essence of the contract, constitutes a condition precedent, and
noncompliance without waiver or excuse will defeat a recovery. Considering then only the
cases involving policies which declare that compliance with notice requirements is a
condition precedent to recovery, we are unable to agree with respondent's contention that the
cases denying recovery in event of an unexcused and unwaived breach are confined to the
older cases upholding what is characterized as a harsh and inequitable rule and that the later
cases apply the more just and reasonable rule that recovery will not be denied in the absence
of prejudice.
In Houran v. Preferred Acc. Ins. Co. of New York, 109 Vt. 258, 195 A. 253, 259, the court
said: The rule established by the weight of authority is that where, by the terms of the
insurance contract, a specified notice of accident, given by or on behalf of the insured to the
insurer, is made a condition precedent to liability on the part of the latter, the failure to do
so will release the insurer from the obligations imposed by the contract, although no
prejudice may have resulted.
____________________

1
This automatically eliminates a further mass of conflicting cases involving presumptions and burden of
proof as to prejudice resulting from failure to comply with the notice requirements.
of accident, given by or on behalf of the insured to the insurer, is made a condition precedent
to liability on the part of the latter, the failure to do so will release the insurer from the
obligations imposed by the contract, although no prejudice may have resulted. Among the
cases so holding are Meyer v. Iowa Mutual Liability Ins. Co., 240 Ill.App. 431, 436; Phoenix
Cotton Oil Co. v. Royal Indemnity Co., 140 Tenn. 438, 205 S.W. 128, 130; Lee v.
Metropolitan Life Ins. Co., 180 S.C. 475, 186 S.E. 376, 381; Jefferson Realty Co. v.
Employers' Liability Assur. Corp., 149 Ky. 741, 149 S.W. 1011, 1014; Sherwood Ice Co. v.
U. S. Casualty Co., 40 R.I. 268, 100 A. 572, 576; Employers' Liability Assurance Corp. v.
Perkins, 169 Md. 269, 181 A. 436, 442; St. Louis Architectural Iron Co. v. New Amsterdam
Casualty Co., 8 Cir., 40 F.2d 344, 347, certiorari denied 282 U.S. 882, 51 S.Ct. 86, 75 L.Ed.
778. Other decisions might be cited, but instead reference may be had to those mentioned in
the opinions in the foregoing cases, and in annotation, 76 A.L.R. 182.
Like the Vermont court we refer to the annotation, 76 A.L.R. 182, also the supplemental
annotation, 123 A.L.R. 981 and 139 A.L.R. 771, where additional later cases are collected.
We further agree with the statement by the supreme court of Vermont that much of the
conflict of authority on the question is more apparent than real. Many of the cases which
hold that a showing of prejudice is necessary turn upon a construction of the language of the
policy, while recognizing, tacitly at least, the rule stated above.
We turn to the cases relied on by respondent in support of the asserted rule that the
insured's right of recovery is not defeated by failure to give the required notice unless the
insurer is prejudiced by such lack or such delay.
The first is John B. Stevens & Co. v. Frankfort Marine, Accident & Plate Glass Insurance
Co., 9 Cir., 1913, 207 F. 757, 47 L.R.A., N.S., 1214. In this case the circuit court of appeals
held that the district court was in error in holding that the assured was required to give
notice of the injury, by the terms of the policy, even before such assured itself had any
notice of the injury.
circuit court of appeals held that the district court was in error in holding that the assured was
required to give notice of the injury, by the terms of the policy, even before such assured itself
had any notice of the injury. Such was the main point decided. The policy required immediate
notice and the circuit court followed the well-established rule that this meant reasonable
notice. The court outlined the terms of the policy with respect to the giving of notice, and so
far as the report indicates the policy was devoid of any clauses providing that the time of
giving the notice was of the essence of the contract, or was a condition upon which the policy
was issued, or that the failure to give notice worked a forfeiture, or that the giving of the
notice was a condition precedent. That it regarded the provision for giving notice as a mere
condition subsequent entitled to consideration in determining what damage the insurer had
suffered through lack of notice is evident from its reference to Victoria Stevedoring and
General Contracting Co., Ltd. v. Australian Accident Insurance, etc. Co., 19 Victorian Law
Reports 139. The policy in that case also, so far as the opinion indicates, was devoid of the
conditions above mentioned, and the opinion treated the requirement for notice as a classic
example of a condition subsequent.
The L.R.A., N.S., report of this case refers to the earlier annotation to Hope Spoke Co. v.
Maryland Casualty Co., 102 Ark. 1, 143 S.W. 85, 38 L.R.A., N.S., 62 Ann.Cas.1914A, 268,
and refers also to National Paper Box Co. v. Aetna Life Insurance Co., 170 Mo.App. 361, 156
S.W. 740, holding that the provision for notice is of the essence of the contract and that a
breach will prevent a recovery, not on the ground of forfeiture but on the ground of
nonperformance of a condition precedent. The case note in 38 L.R.A., N.S., 62 deals, for the
most part, with the sufficiency of the notice given, but refers to Underwood Veneer Co. v.
London Guarantee & Accident Co., 100 Wis. 378, 75 N.W. 996, which held that the
requirement for notice constituted a condition precedent which the insured was bound to
perform in order to maintain an action on the policy even in the absence of a forfeiture
clause.
held that the requirement for notice constituted a condition precedent which the insured was
bound to perform in order to maintain an action on the policy even in the absence of a
forfeiture clause. It also referred to Employer's Liability Assurance Corporation v. Light, Heat
& Power Co., 28 Ind.App. 437, 63 N.E. 54, holding that the provision for immediate notice
was of the essence of the contract.
In Gerber v. Fletcher, 108 Pa.Super. 226, 164 A. 135, failure to give prompt notice was
held to defeat the cause of action against the insurer, even though the policy contained no
clauses defining the effect of the failure to give notice. The court relied upon Trask v. State
Fire & Marine Insurance Co., 29 Pa. 198, 72 Am. Dec. 622, a leading case which
characterized the requirement for notice as a contract condition of the defendants' liability.
In Decker v. Kolleda, 57 Ohio App. 442, 14 N.E.2d 417, the policy provision was that,
No suit or action on this policy * * * shall be sustainable in any court of law or equity,
unless the assured shall have fully complied with all the foregoing requirements. There was
a requirement for notice and the court held that compliance was a condition precedent to
liability.
In Massachusetts Bonding & Insurance Co. v. Arizona Concrete Co., 47 Ariz. 420, 56 P.2d
188, 190, which is the main authority relied upon by respondent, a suit was filed against the
assured some two months after the accident, and the insured six months later demanded of the
insurance company that it defend. The trial was held two months later and judgment was
rendered against the claimant and in favor of the insured, who then sued the insurance
company, under the policy, for recovery of costs and attorney fees. The sole defense was
plaintiff's failure to give immediate written notice. It is true that the court held against this
defense in the absence of a showing that the insurance company was prejudiced by delay in
giving the notice. But, referring to the policy itself, the court said: "It did not, however,
provide any specific penalty for a failure to give the notices above provided for."
policy itself, the court said: It did not, however, provide any specific penalty for a failure to
give the notices above provided for. The court then quotes with approval as the leading
case in Arizona, Watson v. Ocean Accident & Guarantee Corp., 28 Ariz. 573, 238 P. 338,
340, a case also upon which heavy reliance is placed by respondent. But the quotation from
that case recognizes the rule that generally, though not in all jurisdictions, there can be no
recovery when giving of the notice, in time and manner as specified in the policy, is made a
condition precedent to liability. The court in the Watson case then says that it has carefully
read the policy in that case but has found no provisions to bring it within the rule whereby
recovery is barred by failure to perform a condition precedent. The court later refers to the
requirement for notice as a condition subsequent. In other words, the Arizona Concrete
Company case and the earlier Watson case in Arizona both applied the doctrine of lack of
prejudice only by reason of the absence of clauses making the giving of notice a condition
precedent. Consolidated Vultee Aircraft Corp. v. Smith, 63 Ariz. 331, 162 P.2d 425, is said
by respondent to have followed the Arizona Concrete Company case. This is perhaps true, but
there is no indication that the policy in Consolidated Vultee in any way defined the effect of
the failure to give notice. It may be noted that all of these Arizona cases were under the
Arizona Workmen's Compensation Act.
Respondent then states that the Arizona rule was declared in the federal court for the
fifth circuit, in Missouri, Indiana, Washington and Nebraska. We proceed to examine the
cases cited in support of that statement.
The first is Young v. Travelers Ins. Co., 5 Cir., 119 F.2d 877. This case does indeed apply
the no prejudice rule, but no provisions of the policy are recited except the simple
requirement to give notice, and we must presume the absence of such provisions.
The next case is St. Paul, etc. Co. v. United States Fidelity & Guaranty Co., 231 Mo.App.
613, 105 S.W.2d 14, said to have adopted the Arizona rule. In this case, however, the court
definitely stated that the policy contained no clause for forfeiture by reason of the breach of
the provisions requiring notice. It is also apparent from the wording of the opinion that the
policy likewise contained no provisions constituting a compliance with the notice provisions,
a condition precedent to liability. The court did indeed refer to National Paper Box Co. v.
Aetna Life Insurance Co., 170 Mo.App. 361, 156 S.W. 740, which held that conditions of this
character actually were conditions precedent, but said: In doing so, the court by inference
read into the policy a forfeiture clause which was not written therein. [231 Mo.App. 613,
105 S.W.2d 25.] The court then stated that Dezell v. Fidelity & Casualty Co., 176 Mo. 253,
75 S.W. 1102, and numerous later Missouri opinions refused to follow the National Paper
Box Company case and that the same was overruled. The opinion treats the lack of a clause
declaring a forfeiture for noncompliance with notice requirements, as identical in effect with
the lack of a clause declaring that compliance with notice requirements is a condition
precedent to a right of recovery. While such treatment may not be precisely exact in its legal
concept, there is, in a proper case, little if any difference in the effect upon the assured's right
of recovery.
The case cited as following the Arizona rule in Indiana is Insurance Company of North
America v. Brim, 111 Ind. 281, 12 N.E. 315, 317. In that case the court first disposed of some
provisions of the policy as invalid by reason of the Indiana statutes. So far as concerns the
provisions requiring notice, all we find is the statement: There was a condition in the policy
requiring that immediate notice should be given of any claim [to be] made thereunder. We
must assume that there were no provisions declaring either a forfeiture or declaring that
compliance with requirements for notice was a condition precedent. The mere statement that
the policy contained a condition requiring immediate notice is insufficient to enable us to
conclude that it was a condition precedent, or that the condition was of the essence, or
was anything more than a condition subsequent.
to enable us to conclude that it was a condition precedent, or that the condition was of the
essence, or was anything more than a condition subsequent. It is said that the Arizona rule
was followed by the federal court in John B. Stevens & Co. v. Frankfort Marine, Accident &
Plate Glass Insurance Co., 9 Cir., 207 F. 757, 47 L.R.A., N.S., 1214. We have already
discussed this case with particular reference to absence of clauses making it applicable here.
In Nebraska the Arizona rule is said to have been applied in George v. Aetna Casualty &
Surety Co., 121 Neb. 647, 238 N.W. 36, 39, but in that case the court said: The policy in the
case at bar provided that the insured should give immediate notice of an accident, but a
careful reading of the policy discloses that it contained no forfeiture clause, and refused to
enforce the effect of failure to give notice which amounts to a forfeiture where the policy
does not provide for such a forfeiture. Under such condition it applied the lack of prejudice
rule. Earlier Nebraska cases were referred to as holding that a forfeiture would not be
declared in insurance cases unless the contract specifically provides for such forfeiture.
Haas v. Mutual Life Insurance Co., 84 Neb. 682, 121 N.W. 996, 26 L.R.A., N.S., 747, 19
Ann.Cas. 58; Hagelin v. Commonwealth Life Ins. Co., 106 Neb. 187, 183 N.W. 103.
Respondent has called the court's attention to a decision appearing in the advance sheets
after the argument and submission of this case. It is Leach v. Farmer's Automobile
Interinsurance Exchange, Idaho, 213 P.2d 920, 923, decided January 10, 1950, in which there
was a delay in giving the notice required by the insurance policy but in which the trial court
had found affirmatively that the company was not prejudiced by the failure. The supreme
court of Idaho, citing many of the cases herein referred to, including the Arizona Concrete
Company case and the California cases, as well as the A.L.R. annotations, says: Violations
of conditions by the assured will not release the insurer unless it is prejudiced by the
violation. We have seen that in the Arizona cases and the California cases and all others in
which this rule is enunciated it did not appear that the policy contained clauses declaring
a forfeiture or declaring that compliance with the notice requirements were conditions
precedent to the right of action.
in the Arizona cases and the California cases and all others in which this rule is enunciated it
did not appear that the policy contained clauses declaring a forfeiture or declaring that
compliance with the notice requirements were conditions precedent to the right of action. In
like manner all that we find in the Idaho case is the statement: The policy also contained
conditions requiring written notice of any accident as soon as practicable' and The insured
shall cooperate with the Exchange and, upon the Exchange's request, shall attend hearings
and trials and shall assist in effecting settlements, securing and giving evidence, obtaining the
attendance of witnesses and in the conduct of suits.' We must place this case in the same
category as others not containing the covenants here involved.
In addition to the Arizona Concrete Co. case the authority apparently most strongly relied
upon by respondent as supporting the view that failure to give reasonable notice will not
defeat a recovery in the absence of prejudice is Abrams v. American Fidelity & Casualty Co.,
Cal.App., 186 P.2d 999, affirmed 32 Cal.2d 233, 195 P.2d 797. Respondent says that the
holding in that case is that the failure to give notice merely gives rise to a rebuttable
presumption of substantial prejudice, and where the presumption is overcome by competent
evidence, the insured is allowed to recover. * * * The Abrams case * * * is about the clearest
statement of law on this subject. This case reviews and distinguishes most of the major
authorities on the subject. In the first place the opinion by the California Supreme Court, 32
Cal.2d 233, 195 P.2d 797, reviews only the California cases. Not a single case from another
jurisdiction is reviewed or distinguished. This is likewise true with respect to the opinion of
the district court of appeal in 186 P.2d 999. In the second place the court recognizes the
general rule that a recovery may be precluded where compliance with a requirement for
notice is made a condition precedent to recovery, saying [32 Cal.2d 233, 195 P.2d 799]:
Generally speaking, provisions tending to defeat the main object of the contract are not
to be implied.
provisions tending to defeat the main object of the contract are not to be implied. (See 29
Am.Jur. 180 et seq., 166.) Likewise, while a requirement for notice can be made a
condition precedent to recovery, in which event, in the absence of waiver or estoppel, failure
of the insured to give the notice may defeat recovery on the policy (Aronson v. Frankfurt,
etc., Ins. Co., 1908, 9 Cal.App. 473, 99 P. 537; see also 29 Am.Jur. 828, 1105), it is also
said that unless such a requirement is made a condition precedent or a forfeiture is provided
for, the failure to give notice * * * will not defeat recovery.' (29 Am.Jur. 825, 1100.)
In the third place the insurance contract in the Abrams case did not contain the covenant in
the instant case making compliance a condition precedent and issuing the insurance subject to
the performance of the requirement for notice.
It would be without purpose for us to discuss the two conflicting lines of cases involving
policies which are entirely lacking in a forfeiture clause or a clause making compliance with
notice requirements a condition precedent. In view of the express provisions in the present
policy we may likewise avoid a discussion of the cases which hold that requirements for
immediate notice are, by reason of the very nature of the indemnity, of the essence of the
contract, and that compliance is accordingly to be held a condition precedent. We do not
however ignore the persuasiveness of these cases or the logic of those opinions. See e. g.
Sherwood Ice Co. v. United States Casualty Co., 40 R.I. 268, 100 A. 572.
In the instant case, as heretofore noted, the insurer issued the insurance in consideration
of the payment of the premiums * * * and subject to the * * * conditions and other terms of
the policy. Under the caption of conditions it was provided that written notice be given to
the insurer as soon as practicable upon the occurrence of an accident, which notice was
required to contain sundry particulars as to names, times, places, circumstances, etc. It was
further provided that in the event of suit against the insured, he should immediately
forward to the insurer summons and other process received by him.
event of suit against the insured, he should immediately forward to the insurer summons and
other process received by him. It was also provided: No action shall lie against the company
unless, as a condition precedent thereto, there shall have been full compliance with all of the
terms of this insurance. * * *
We may at this point also eliminate consideration of the conflicting cases holding or
refusing to hold that compliance with the notice requirement became a condition precedent
solely by reason of the recital that the insurance was written in consideration of the
performance of the conditions or subject to the conditions. But when we come to the
consideration of the effect of the inclusion of the clause that the performance of the
conditions is a condition precedent to the right of action against the insurer, we find the
authorities overwhelmingly in favor of giving full recognition to such provision, in which
case the presence or absence of prejudice resulting from a delay in giving notice becomes
immaterial. It is unnecessary to digest or even to list all of the cases so holding. The effect of
the failure to perform such condition precedent is described in varying language. Thus we
find such expressions as that the failure constitutes good ground for the forfeiture of the
indemnity; that by the failure to comply the assured had forfeited his right to rely on the
policy; that the assured was bound to give the required notice if it wanted to save the
policy; that the failure released defendant; that the assured, by reason of the failure, was
relieved from liability; that the failure was a bar to recovery; that by reason of the failure
the insurer ceased to be liable; that the failure was fatal to a recovery on the policy; that
compliance was necessary in order to maintain an action upon the policy (the writer of the
annotation at page 188 of 76 A.L.R., at which place most of the cases to that date have been
gathered, says: And certainly a failure to give the immediate' notice of action required by
clause will prevent a recovery where the policy expressly states that "this insurance is
subject to the following conditions, which are to be construed as conditions precedent of
this contract.'"); that the failure to give the required notice "defeats the policy in respect
of the accident"; that in case of failure "there can be no recovery on the policy"; that the
failure "prevented any liability from attaching"; that a compliance "is indispensable to fix
liability"; that the provision "must be complied with before recovery can be had."
this insurance is subject to the following conditions, which are to be construed as conditions
precedent of this contract.'); that the failure to give the required notice defeats the policy in
respect of the accident; that in case of failure there can be no recovery on the policy; that
the failure prevented any liability from attaching; that a compliance is indispensable to fix
liability; that the provision must be complied with before recovery can be had.
Thus we see that while terms of great variety are used in defining the effect of a failure to
give notice, when the same is defined by the policy as a condition precedent, they lead to
precisely the same result.
We may say frankly that upon our first reading of the briefs prior to argument and at the
conclusion of the argument, we were strongly impressed with the cases presented to the effect
that right of recovery under the policy would not be barred by failure to give timely notice,
unless the insurer had been prejudiced by such failure. The arguments in favor of such rule
seemed plausible and the rule itself appeared neither unfair nor inequitable, especially if it
were coupled with the rule adopted in some jurisdictions that prejudice would be presumed
and that burden of proof be upon the insured to overcome such presumption by a proper
showing. As we have seen however, a careful consideration of the cases shows that in no case
so holding did the policy contain a clause to the effect that the compliance with the
requirements for notice was a condition precedent to recovery. It would be presumptuous on
our part to establish a rule of law in this state which departs from the overwhelming majority
of decisions throughout the United States.
2. We may concede for the purpose of argument, without so holding, that the delay of
some ten of the fourteen months in giving notice of the accident, was excused by the fact that
respondent had no intimation that liability on his part would be claimed. But the delay of
almost four months in giving notice to appellant company that respondent had been sued,
and in sending appellant copies of the summons, complaint, etc., cannot be said to be a
compliance with the requirement that this be done immediatelygiving full recognition to
the well-established rule that this does not mean without lapse of any time whatsoever,
but within a reasonable time under the circumstances.
company that respondent had been sued, and in sending appellant copies of the summons,
complaint, etc., cannot be said to be a compliance with the requirement that this be done
immediatelygiving full recognition to the well-established rule that this does not mean
without lapse of any time whatsoever, but within a reasonable time under the circumstances.
Nor was the delay excused by the fact that respondent thought that his policy had lapsed and
that he was insured in another company. Sherwood Ice Co. v. U. S. Casualty Co., 40 R.I.268,
100A.572; Jefferson Realty Co. v. Employers' Liability Assurance Corporation, 149 Ky. 741,
149 S.W. 1011.
3. Some states have enacted legislation to the effect that any clauses in a policy providing
for a notice of less than twenty days, of the occurrence of an accident, shall be invalid. See
sec. 2633a, Cal. civil code, now insurance code, sec. 551, as quoted in Abrams v. American
Fidelity & Casualty Co., 32 Cal.2d 233, 195 P.2d 797. Perhaps legislation is in order
declaring invalid, clauses in an indemnity policy avoiding or forfeiting the indemnity on
account of failure to comply with notice provisions unless coupled with the fact that such
failure was prejudicial to the insurance company, and with possible further provisions as to
presumptions, burden of proof, etc. This of course is a matter for the good judgment of the
legislature if it is thought that adherence to the present rule is too harsh in its effects. As
against this is the reasoning applied by the court in a number of cases. See Anno. 76 A.L.R. at
page 183. In insurance of this character it is a matter of the first importance to the insurer,
who may be forced to become the real defendant in a law suit against the insured, * * * to be
speedily informed of all the facts and witnesses concerning a possible litigation. In a very
little time the facts may in a great measure fade out of memory, or become distorted,
witnesses may go beyond reach, physical conditions may change, and, more dangerous than
all, fraud and cupidity may have had opportunity to perfect their work.
fraud and cupidity may have had opportunity to perfect their work. Therefore, this stipulation
is vital to the contract. It is a well-known fact that the great increase in automobile accidents
has led in recent years to material increases in premium rates for indemnity insurance, and it
may well be that legislation, which might in its effect increase the insurance risk, would at the
same time result in the necessity for further increase in rates. But consideration of these
matters is rather for the legislature, within the constitutional limit of its powers.
4. By reason of the overwhelming weight of authority of the courts of last resort within the
United States, we are compelled to hold that on account of the respondent's failure to perform
the condition precedent, stipulated in the policy as such, of giving notice of the suit and
forwarding summons and complaint within a reasonable time, no action on his part lay
against the company. Lack of prejudice, under the terms of the policy, was immaterial.
The judgment of the district court is reversed with costs and the case is remanded with
directions to enter judgment for the defendant.
____________
67 Nev. 248, 248 (1950) Hawkins v. 8th District Court
L. O. HAWKINS, Petitioner, v. EIGHTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA, in and for the County of Clark, Department 1, HONORABLE TAYLOR
H. WINES, Presiding, Respondent.
No. 3608
April 6, 1950. 216 P.2d 601.
Original proceeding in mandamus by L. O. Hawkins against Eighth Judicial District Court
of the State of Nevada, in and for the County of Clark, Department 1, Honorable Taylor H.
Wines, Presiding Judge, to compel the respondent to admit the petitioner to participate as an
attorney of record for the defendant in an action which had for its object the removal of
defendant from office of district attorney of Clark County for alleged malfeasance and
nonfeasance. The Supreme Court, Badt, J., held that petitioner was properly excluded from
appearing as counsel on behalf of district attorney in the ouster action, in view of fact that he
had previously represented grand jury in investigation of matters some of which led to filing
of complaint in the ouster action.
Alternative writ vacated and proceedings dismissed.
1. Mandamus.
Mandamus is proper remedy to compel admission of a qualified attorney to appear in defense of his
client. Comp. Laws 1929, sec. 9242.
2. Attorney and Client.
A court has inherent power in proper case to enjoin attorney from appearing for a party, the exercise of
which is designed to prevent injustice, and the authority for exercise thereof is independent of any positive
provision of law.
3. Officers.
The state is the interested party in proceedings under civil act for removal of public officers for
malfeasance or nonfeasance. Comp.Laws 1929, secs. 4860-4863; Const. art. 7, sec. 4.
4. Attorney and Client.
Attorney who represented grand jury in investigation of matters, some of which led to filing of complaint
in action for removal of district attorney from office for alleged malfeasance and nonfeasance, was properly
excluded from appearing as counsel on behalf of district attorney in the ouster action, notwithstanding
that the ouster action was not a proceeding by grand jury but was brought on
complaint of foreman of grand jury, as an individual.
notwithstanding that the ouster action was not a proceeding by grand jury but was brought on complaint of
foreman of grand jury, as an individual. Comp.Laws 1929, secs. 4860-4863; Const. art. 7, sec. 4.
L. O. Hawkins, of Las Vegas, in pro per.
George E. Marshall, of Las Vegas, for Respondent.
OPINION
This is an original petition for a writ of mandate to compel the respondent district court to
admit the petitioner to participate as an attorney of record for the defendant in that certain
action pending in said district court, being case No. 47060, entitled State of Nevada on
Relation of Murray Wollman, Complainant, vs. Robert E. Jones, as District Attorney of Clark
County, Nevada, Defendant, the object of which action was to remove the defendant from
office for alleged malfeasance and nonfeasance. The actual finding and order made by the
district court disqualifying petitioner from acting in that case are as follows:
The Court Finds:
That a legal dispute as to the right of the said L. O. Hawkins to represent said defendant
existed; that the said L. O. Hawkins acted without any unethical or corrupt motive and that
the said L. O. Hawkins never at any time represented the Complainant, Murray Wollman, in
any private matter of any kind or character, and
It Is Further Ordered, Adjudged and Decreed that the said L. O. Hawkins, be, and he is
disqualified from acting as counsel for defendant for the reason and upon the ground that the
matters stated in the complaint of Complainant are so closely identified and connected with
the matters heard before the Grand Jury of Clark County, Nevada, wherein the said L. O.
Hawkins appeared as legal advisor and counselor to said Grand Jury on, to-wit, the 7th day
of October, 1949, to the 12th day of November, 1949, and as such attorney for said Grand
Jury thereby became acquainted with the testimony of witnesses in relation to the
matters and things set forth in complainant's complaint, therefore, the Court exercising
its discretion ordered, and
Jury on, to-wit, the 7th day of October, 1949, to the 12th day of November, 1949, and as such
attorney for said Grand Jury thereby became acquainted with the testimony of witnesses in
relation to the matters and things set forth in complainant's complaint, therefore, the Court
exercising its discretion ordered, and
It Is Hereby Ordered, Adjudged and Decreed that the name of said L. O. Hawkins be, and
the same is hereby stricken as counsel for defendant.
Petitioner had been employed by the Clark County grand jury, and his compensation paid
by Clark County by order of its county commissioners, in the investigation of matters some of
which eventually led to the filing of the complaint in the proceeding above mentioned seeking
the removal from office of District Attorney Robert E. Jones. Such complaint was filed a
short time after the grand jury had notified petitioner that it was dispensing with his services.
Petitioner then undertook to appear with other counsel on behalf of the defendant district
attorney in defense of said proceeding, but on motion of the complainant and after a full
hearing on such motion the court made the order above quoted striking petitioner's name as
such counsel. Petitioner frankly concedes that if such proceeding No. 47060 were an
indictment or a proceeding commenced by the grand jury itself seeking the removal of
District Attorney Jones, it would be improper for petitioner to defend Mr. Jones therein. At
least, that was the position taken by the present petitioner in the district court. Such is still his
position as expressed in his brief to this court, although enunciated in more guarded and
qualified language. Petitioner insists however that as action No. 47060 was commenced by
Wollman as an individual and a person between whom and the petitioner no relation of
attorney and client ever existed, he is not disqualified from representing the defendant.
The complaint in action No. 47060 set out some nine separate and several counts of
alleged nonfeasance or malfeasance of the defendant district attorney. At least some of these
counts involved matters in which petitioner acted as attorney for the grand jury, giving
them counsel and advice, examining witnesses and drawing at least one indictment.
some of these counts involved matters in which petitioner acted as attorney for the grand jury,
giving them counsel and advice, examining witnesses and drawing at least one indictment.
The extent of his services over approximately a thirty day period is reflected in his bill,
approved by the foreman of the grand jury and paid by the order of the county commissioners,
as follows:
Clark County, Nevada, Commissioner's Bill Number 97. Debit to L. O. Hawkins,
Attorney at Law, with offices at Room 25 Stearns Building, Las Vegas, Nevada, P. O. Box
729. Department Judicial. 10-7-49 to 11-3-49, both inclusive, for legal services rendered to
the present Clark County Grand Jury in sessions of the Grand Jury, in conferences with the
Foreman of the Grand Jury and other members thereof and in study of matters referred to me
by the Foreman of the Grand Jury, upon an express contract with the Board of County
Commissioners of Clark County, Nevada, entered into at the request of said Grand Jury as
follows:
Seven days spent in attendance of the Grand Jury while it was in session at $150.00 per
day.......$1050.00
Fourteen hours spent in conference at various times with the Foreman of the said Grand
Jury and other members thereof....sometimes after office hours, sometimes on Sunday and at
other times during regular office hours.......$300.00
Twenty-four hours spent in study and investigation of matters submitted to me by the
Foreman of said Grand Jury for study and investigation at $10.00 per hour; also some of
which investigations and study which were after office hours and Sunday......$240.00 Amount
allowed by Board......$1590.00
I hereby certify that the above and foregoing claim against Clark County, State of
Nevada, is just and reasonable, and that said claim is now due, owing and unpaid. L. O.
Hawkins, Claimant.
I certify that the foregoing claim is correct and just; that the articles specified have been
received by the proper officials of the County, or the services stated have been performed;
that they were necessary for and have been or will be applied to county purposes, and
that to the best of my knowledge and belief the prices charged are reasonable and just.
have been performed; that they were necessary for and have been or will be applied to county
purposes, and that to the best of my knowledge and belief the prices charged are reasonable
and just. Murray Wollman, Foreman of Clark County Grand Jury.
Petitioner's services to the grand jury are shown in greater detail in the record. Mr.
Wollman, foreman of the grand jury, testified that petitioner served the grand jury of Clark
County in the capacity of legal advisor and special counsel and examined witnesses upon
whose testimony reliance would be placed in the case for the removal of the district attorney.
Petitioner advised the grand jury as to the duties of the district attorney. He was furnished
with records of the transcribed testimony of witnesses who testified before the grand jury,
which records were returned by petitioner to the grand jury at the latter's request about a week
after petitioner's further services to the grand jury were dispensed with. This testimony was in
turn discussed by petitioner and the grand jury foreman. These were the same witnesses
intended to be subpoenaed to testify in support of the proceedings against the district attorney.
Petitioner concedes all this with complete frankness, but insists that as the proceeding is
not one by the grand jury, by whom he was employed, but a proceeding by Wollman as an
individual, to whom he owed no loyalty, he is not precluded from defending Jones. That
petitioner's position is taken in all sincerity needs no more proof than his long and honorable
career as an attorney and district judge in this state (in fact the learned district judge so
found), but we are satisfied that it is erroneous.
Section 4 of article VII of the constitution provides: Provision shall be made by law for
the removal from office of any civil officer other than those in this article previously
specified, for malfeasance or nonfeasance in the performance of his duties. (The district
attorney does not come within the exception.) The legislature provided two distinct methods
for removal of officers.
One method was provided by chapter 6 of an act to regulate proceedings in criminal cases,
etc., which chapter is entitled Of the Removal of Civil Officers Otherwise Than by
Impeachment, and which embraces secs. 10691 to 10704, Nevada Compiled Laws 1929.
These sections provide for the presentation by the grand jury of an accusation in writing
against any district, county, township or municipal officer, for the service thereof upon the
defendant, for the defendant's pleadings, for trial by jury, for process to enforce the attendance
of witnesses, for judgment of removal from office upon a conviction, for an appeal to the
supreme court, and for the appointment by the district judge of a prosecuting officer if the
proceedings are for the removal of a district attorney.
The second method provided by the legislature was by an act providing for the removal
from office of public officers for malfeasance or nonfeasance, regulating the mode of
procedure, etc., and comprises secs. 4860 to 4863, inclusive, N.C.L.1929. These sections
authorize the filing of a verified complaint of any complainant alleging nonfeasance or
malfeasance or malpractice, and make it the duty of the court to cite the party charged to
appear on a day certain, and to hear the matter in a summary manner and, if the charges are
sustained, to enter a decree that the party complained of be deprived of his office. The clerk
of the court is required to transmit a copy of the decree to the governor or the board of county
commissioners (as the case may be) to the end that some person be appointed to fill the office
until a successor be selected or appointed and qualified. The officer so removed is not
permitted to hold office pending an appeal.
Just why the legislature thought it necessary to create two methods of removal of county
officials, remarks Coleman, J., in Gay v. District Court, 41 Nev. 330, 171 P. 156, 159, 3
A.L.R. 224, is not clear, but since one method is more drastic than the other, it may be that
the Legislature anticipated that there might be occasions when a drastic measure would be
needed; but whatever the reason, or lack of reason, the statute, which was enacted
pursuant to plenary authority by clear and unmistakable language, creates the two
methods, and beyond that we cannot inquire."
whatever the reason, or lack of reason, the statute, which was enacted pursuant to plenary
authority by clear and unmistakable language, creates the two methods, and beyond that we
cannot inquire.
Petitioner correctly cites Ex parte Jones and Gregory, 41 Nev. 523, 173 P. 885, as holding
that this proceeding is one under the second statute above described, the act providing for the
removal of public officers for malfeasance or nonfeasance upon the verified complaint of any
complainant. The district court so held during the course of the proceedings (Honorable Harry
M. Watson, district judge, presiding at that time
1
) and we agree with both the district court
and petitioner in this regard. Despite this fact we are unable to accept so narrow and technical
a view as to hold that this in itself justifies petitioner's employment, in defense of the district
attorney, of his information and experience gained while representing the grand jury, simply
because Wollman personally is the plaintiff or complainant in action No. 47060.
1, 2. Petitioner states that Boyd v. Second Judicial District Court, 51 Nev. 264, 274 P. 7, is
the leading Nevada case and relies upon that case as sustaining his contention that only a
party who sustains the relation of a client to an attorney who undertakes to represent
conflicting interests may object to such representation for that reason alone, and
distinguishes the Boyd case upon the ground that this court there held that such situation
actually existed. Boyd had been employed as an attorney by Gilbert Last Hope Mines
Company in defense of an action brought against it by B. F. Curler and participated in such
defense.
____________________

1
We heretofore denied, without opinion, an application for a writ of prohibition restraining Honorable
Taylor H. Wines from hearing the matter, which petition was made upon the ground that as Honorable A. S.
Henderson, presiding judge of Department No. 1 of said district, had assigned the case to Judge Watson and
Judge Watson had re-assigned it to Judge Henderson, there could not be another assignment to Judge Wines
under the statute. Our ruling was based upon the conclusion that under the particular circumstances of the case
there had been, in reality, only one assignment.
and participated in such defense. Curler prevailed in the action and the mining company
thereafter brought an action against W. C. Lamb, a stockholder, director, vice president and
general manager, to recover a judgment for damages because of Lamb's alleged false
representations to the board of directors which had induced it to cancel certificates for 35,000
shares of its capital stock theretofore issued to Curler. Boyd had ceased to be the attorney for
the company or to advise the company in any manner whatsoever, and undertook to accept
employment to assist Lamb in the defense of the company's action for damages against him.
The company objected to such representation and the trial court, on motion, enjoined Boyd
from appearing as attorney for Lamb in such second suit. As in the present case, Boyd sought
a writ of mandate to compel the respondent court to admit him to appear as attorney for
Lamb.
2
This court denied the writ and enunciated principles which serve as a clear guide to
our action in this case. The first of these is the doctrine, supported by ample authority, that a
court has inherent power in a proper case to enjoin an attorney from appearing for a party, the
exercise of which is designed to prevent injustice, and the authority for the exercise whereof
is independent of any positive provision of law. Mr. Chief Justice Ducker, speaking for the
court, quotes with approval I Thornton on Attorneys at Law, sec. 174, as follows [51 Nev.
269, 274 P. 8]: It is a well-settled general rule that an attorney cannot represent conflicting
interests, or undertake the discharge of inconsistent duties. When he has once been retained
and received the confidence of a client, he cannot accept a retainer from, or enter the
services of, those whose interests are adverse to his client in the same controversy, or in
matters so closely allied thereto as to be, in effect, a part thereof."
____________________

2
Section 9242. N.C.L. 1929, provides, among other things, that the writ of mandate may be issued by the
supreme court to compel the admission of a party to the use and enjoyment of a right of office to which he is
entitled, and from which he is unlawfully precluded by an inferior tribunal, corporation, board or person. State
ex rel. Huffaker v. Crosby et al., 24 Nev. 115, 50 P. 127, 77 Am.St.Rep 786, is authority for the propriety, in a
proper case, for the issuance of a writ to compel the admission of a qualified attorney to appear in defense of his
client.
client, he cannot accept a retainer from, or enter the services of, those whose interests are
adverse to his client in the same controversy, or in matters so closely allied thereto as to be, in
effect, a part thereof.
As in the present case, the court noted its conviction that the petitioner was entirely sincere
in his belief and claim of his right to represent the defendant in the company's suit against
Lamb, but held that the present suit rises out of the Curler case. Corresponding with the
finding of Judge Wines in the present case that the matters stated in the complaint of
complainant [Wollman] are so closely identified and connected with the matters heard before
the grand jury of Clark County, Nevada, wherein the said L. O. Hawkins appeared as legal
advisor and counselor to said grand jury * * * and thereby became acquainted with the
testimony of witnesses in relation to the matters and things set forth in complainant's
complaint, Mr. Chief Justice Ducker said: Such a close connection is shown between the
cases that we are not prepared to say that a situation may not arise in which petitioner would
be disqualified to represent Lamb against the company. He acted as attorney for the company
in the Curler case, and during his employment had received much information concerning its
affairs from Lamb and other officers of the company.
Petitioner devotes a considerable portion of his brief to a discussion of the matter of
privileged communications, and insists that his employment was by the grand jury and that he
received no privileged communications from Wollman personally. On this point too
(although we do not overlook the distinction arising from the fact that the mining company
represented by Boyd in defense of the Curler suit was the same entity against whom Boyd
was defending the suit against Lamb) the Boyd opinion is helpful:
Certainly the information was of a confidential nature, and petitioner could neither
disclose nor use his knowledge of it in opposition to the interests of the company without its
consent.
pany without its consent. There is no merit in the contention that the information gained by
petitioner does not come within the class of privileged communications because acquired
from Lamb or the officers of the company in his presence. The company only could release
petitioner from his obligation of secrecy.
It was unnecessary for the court to ascertain in detail the extent to which the company's
affairs might have a bearing upon the matters involved in the present case, or of petitioner's
knowledge in that regard. Brown v. Miller, supra [52 App.D.C. 330, 286 F. 994]. The courts
must necessarily be left to exercise a sound discretion in cases of this character, and we find
no abuse of discretion in this case.
3, 4. Our lack of conviction as to the distinction insisted upon by petitioner (his
representation of the grand jury as such in the first instance and his defense of the district
attorney against Wollman's complaint in the second instance) is further supported by the
concurring opinion of Mr. Chief Justice McCarran in Ex parte Jones and Gregory, 41 Nev.
523, 173 P. 885, 887. In that case the petitioners sought to prohibit the district court from
proceeding summarily to hear the complaint for removal on the ground that the proceeding
was a criminal one under chapter 6 (providing for removing of civil officers, otherwise by
impeachment) of the act regulating proceedings in criminal cases. They called attention to the
fact that the complaint was entitled The State of Nevada, Plaintiff, on Relation of John H.
Cazier, Complainant. Justice McCarran, after pointing out that sec. 13 of article VI of the
Constitution requires that all process shall be in the name of the state, and that all
prosecutions shall be conducted in the name and by the authority of the same, definitely holds
that the state is the interested party in proceedings under the civil act providing for the
removal of public officers for malfeasance or nonfeasance. Such proceedings, the learned
justice says, involve matters of public concern. The commonwealth, and not the individual,
is the interested party, and such proceedings are created not as an instrument for
individual concern but as a public plan of expediency.
is the interested party, and such proceedings are created not as an instrument for individual
concern but as a public plan of expediency. As in proceedings for the prosecution of crime the
individual must set the machinery of the law in motion, whether by a prosecuting officer or a
private citizen, so here, under the provisions of the statute (sections 2851-2854, Rev.Laws),
[now N.C.L. 1929, 4860-4863] it is by individual complaint that the special proceeding is
instituted to remove from office.
We have considered the other matters and other authorities cited in petitioner's briefs.
They all have to do with different angles or different phases or different applications of the
main contention made by petitionerthat in the first instance his client was the Clark County
grand jury, and that in the second instance he sought to defend the district attorney in a
proceeding brought by Wollman individually. In view of what we have already said, further
discussion of such additional points and authorities becomes unnecessary.
As we are unable to say that the evidence was not sufficient to warrant the order of the
district court excluding petitioner from the defense of the defendant in action No. 47060, the
peremptory writ is denied, the alternative writ vacated and the proceedings dismissed, with
costs.
____________
67 Nev. 259, 259 (1950) Nevada Indus. Comm'n v. Adair
NEVADA INDUSTRIAL COMMISSION, Appellant,
v. PRICE E. ADAIR, Respondent.
No. 3595
April 17, 1950. 217 P.2d 348.
Action to recover disability compensation by Price E. Adair against the Nevada Industrial
Commission. The Eighth Judicial District, Clark County, A. S. Henderson, Judge, department
No. 2, entered judgment in favor of the plaintiff and an order denying a new trial, and the
Nevada Industrial Commission appealed. The Supreme Court, Badt, J., held that the
employer's actual notice of the injury on the date of its happening excused the plaintiff's
failure to give the Commission notice of the accident within the statutory thirty day period.
1. Workmen's Compensation.
A letter which was mailed by injured employee to industrial commission seven days after statutory
thirty-day period for giving notice and was received fourteen days after such period and which brought
employer's actual knowledge of accident as of day of accident directly to commission's attention gave
commission jurisdiction to excuse failure to give notice within statutory period. N.C.L.1929, sec. 2716.
Actual notice or knowledge of injury brought home to employer excuses timely formal notice of injury to
industrial commission. N.C.L.1929, sec. 2716.
The Workmen's Compensation Act, including matters of procedure, is liberally construed, having due
regard to remedial and salutary purposes of the act. N.C.L.1929, sec. 2680 et seq.
Where employee's amended complaint in compensation proceeding alleged notice to industrial
commission within statutory thirty-day period for giving notice and employer's immediate knowledge of
accident as of date of accident and commission's answer denied such notice and knowledge, issue was
raised as to question of employer's knowledge as an alternative to statutory notice, so that finding that such
knowledge excused timely notice was not outside the issues. N.C.L.1929, sec. 2716.
In the jurisdictions in which appeal or other proceeding attacking findings and award of industrial
commission is lodged directly in appellate court, such court gives to the findings of the
commission the weight that supreme court accords to findings of trial court.
lodged directly in appellate court, such court gives to the findings of the commission the weight that
supreme court accords to findings of trial court. N.C.L.1929, sec. 2680 et seq.
C. E. Horton, of Ely, for Appellant.
Morse & Graves, of Las Vegas, for Respondent.
OPINION
This is an appeal from a judgment of the district court that plaintiff Adair recover from
Nevada Industrial Commission disability compensation, which the commission had rejected
in toto. The appeal is also from the order denying new trial.
We have limited our consideration of this appeal to the question of whether, under the
pleadings and the evidence, the district court was justified in its findings and conclusions to
the effect that, although the respondent plaintiff mailed an unregistered notice of the accident
of May 25, 1945, to the commission on July 2, 1945 (seven days late) which was received by
the commission July 9, 1945 (fourteen days late) he was nevertheless entitled to judgment
upon the finding and conclusion that respondent's employer had actual notice of the injury on
the date of its happening. Appellant contends that by reason of the late filing, unexecused by
the commission, the commission never acquired jurisdiction to allow the claim, and that in the
district court the issue of excuse for the late filing was never raisedplaintiff having alleged
the giving of notice within the thirty days required by the statute, and which was denied by
the commission's answer.
Section 34 1/2 of the Nevada Industrial Insurance Act, being Nevada Compiled Laws, sec.
2716, reads in part as follows: Notice of the injury for which compensation is payable under
this act shall be given to the commission as soon as practicable, but within thirty days after
the happening of the accident.
after the happening of the accident. * * * The notice shall be in writing and contain the name
and address of the injured employee and state in ordinary language the time, place, nature and
cause of the injury and be signed by said injured employee, or by a person in his behalf * * *.
No proceeding under this act for compensation for an injury shall be maintained unless the
injured employee, or some one in his behalf, files with the commission a claim for
compensation with respect to said injury within ninety days after the happening of the
accident * * *. The notice required by this section shall be served upon the commission,
either by delivery to and leaving with it a copy of such notice, or by mailing to it by registered
mail a copy thereof in a sealed, postpaid envelope addressed to the commission at its office,
and such mailing shall constitute complete service; the failure to give such notice or to file
such claim for compensation within the time limit specified in this section shall be a bar to
any claim for compensation under this act, but such failure may be excused by the
commission on one or more of the following grounds: (1) That notice for some sufficient
reason could not have been made. (2) That failure to give such notice will not result in an
unwarrantable charge against the state insurance fund. (3) That the employer had actual
knowledge of the occurrence of the accident resulting in such injury. (4) That failure to give
notice was due to employee's or beneficiary's mistake or ignorance of fact or of law, or of his
physical or mental inability, or to fraud, misrepresentation or deceit.
The evidence amply supported the findings as to the claimant's employment as a
carpenter's helper by J. M. Montgomery & Company, Inc., which company succeeded Basic
Magnesium Inc., and was such employee on May 25, 1945, the date of the accident, and that
he was injured while engaged in his employment. The injury occurred in the hanging of a
heavy door in which two other carpenter's helpers or assistants were engaged, as was also the
foreman or general superintendent of the carpenter department.
department. The injured man was at once taken in a pickup truck to the first aid station
maintained by his employer, and to the first aid man there, was assisted out of the truck and
after a few minutes was taken in the employer's ambulance to the employer's hospital,
maintained as such with the approval of Nevada Industrial Commission. He was received at
the hospital by nurses there employed by his employer, and the chief physician appeared
almost at once and directed him to be carried to a ward, saying, He is a compensation case
and he is injured. After treatment for about eleven days a Buck's traction was applied to
his legs, and the second day thereafter the rope or cord supporting the weights broke,
resulting in a severe aggravation of the injury. Prior to this incident he was able to sit up in
bed and to walk to the bathroom. After such incident, which caused severe pain requiring the
application of a hypodermic for relief, he was unable to sit up or to leave his bed. Later he
was sent to the Good Samaritan Hospital at Los Angeles for almost a month and was then
brought back to the hospital at Henderson. Shortly after that, upon instructions of the doctor
in charge and without his consent, he was removed from the hospital and taken to his home.
Under date of July 2, 1945, and while at the hospital, he wrote the following letter to the
Nevada Industrial Commission, which was received by the Commission by regular mail July
9, 1945:
July 2,45
I was hurt by lifting a heavy door on may 2545 Was brought to hospital at once. I was
on the Job When hurt. the attending Doctor is not agreed on mr Thatchers decision of the case
an neather am I and I Would like very much for you to review the case With Dr. Hennington
at your earliest convenience
thanking you I remain
sincerially yours
Price Adair
Henderson, Nevada box 964 "P.S. Also a traction Weight of about 50 lbs. droped an
Jerked my back here at hospital an caused quite a bit of injury I am sure {over) I am still
in Hospital an Dr Hennington advised me to Write you Personally thanking you in advance
for you {review of the case with Dr.
P.S. Also a traction Weight of about 50 lbs. droped an Jerked my back here at hospital an
caused quite a bit of injury I am sure (over) I am still in Hospital an Dr Hennington advised
me to Write you Personally thanking you in advance for you (review of the case with Dr.
Hennington
as ever
Price Adair
Appellant commission contends that under the clear provisions of N.C.L. sec. 2716, the
failure to give the notice within thirty days after the happening of the accident (the last day
being thus June 25, 1945) by writing, personally served or sent by registered mail, any claim
for compensation under the act was barred. Of the four statutory grounds on any one of which
the failure may be excused the trial court definitely found as a conclusion of law that
plaintiff was mentally and physically incapable of giving written notice of his accident prior
to July 2, 1945; also that the employer had actual notice of plaintiff's injury on May 25,
1945. These comprise statutory grounds Nos. 1, 3, and 4. Respondent contends that the
statutory ground of excuse No. 2, That failure to give such notice will not result in an
unwarrantable charge against the state insurance fund, also existed. Without implying that
the other three statutory grounds did not exist, we confine our consideration to ground No. 3,
the actual knowledge of the accident by the employer, because of the ample sufficiency of the
evidence to support the trial court's finding of such knowledge.
The commission insists first that under the statute the failure of statutory notice may be
excused only by the commission, that the jurisdiction to excuse the failure must first be
invoked by the claimant's petition or request, and that without the excuse of the failure by the
commission upon such petition or request the commission had no jurisdiction to make an
award.
The letter or notice, as above seen, was dated seven days after the expiration of the
statutory thirty-day period, was not registered, and was received fourteen days after the
expiration of the thirty-day period.
period, was not registered, and was received fourteen days after the expiration of the
thirty-day period. Within these intervening days there fell Sunday, July 1, Sunday, July 8 and
Independence Day, July 4. Bearing in mind the salutary purposes of the act, the letter
conveyed or should have conveyed to the commission much more than the actual meaning of
the words. It said as clearly as if expressed: I am unschooled and unlettered. I am in the
hospital maintained by my employer with your approval, whither I was taken on the day of
the accident by my employer's agents and where I have since been treated by nurses and
doctors who were and are my employer's agents for that purpose. I have at hand no copies of
the Nevada Industrial Insurance Act or of your regulations or of any forms that I possibly
should fill out. I am and have continuously been confined to my hospital bed. I must rely on
others to do my errands, as likewise to stamp and mail this letter for me. If this letter is not in
proper form nor in strict compliance with your requirements, I trust that you will consider the
circumstances. My main concern is my recovery from my injury and the application of proper
methods to that end * * * Joseph Darrell Dayton, a member of the commission, called as an
adverse witness by plaintiff, testified that after having talked with Mr. Hugh Thatcher, who
was handling claims for Basic Magnesium Incorporated at that time, he called at the hospital
and conversed with Adair and Dr. Hennington. His reason for seeing Adair was because of
an injury he had supposedly sustained out there.
This we think is a complete answer to the contention expressed in these words by the
appellant: The respondent having failed to file or serve written notice within the prescribed
thirty day period, one further step at least was required before respondent could or would
have exhausted the remedies provided for him by the terms of the Nevada Industrial
Insurance Act, to wit, application, petition or request to be excused for such failure on any
one or more of the grounds by said 2716, N.C.L. 1929 provided.
Appellant concedes that the district court could have excused claimant's failure if the
respondent presented grounds of excuse to the commission and the commission arbitrarily,
unreasonably or wrongfully refused to consider or weigh such grounds of excuse, and says:
Had there been any arbitrary or unreasonable procedure on the part of the Nevada Industrial
Commission in this case such matter would and, indeed appellant is sure, could have been
made a matter of record * * * But it made no record.
Respondent did file a claim within the statutory time. He did send a written notice which
was either seven or fourteen days late. Implicit in that notice was the statutory excuse that the
employer had actual notice on the day of the injury, and the commission produced at the trial
of the action no record of any kind whatsoever, no evidence of any ruling, finding, conclusion
or decision that it rejected the claim, or why. The only member of the commission who was
called by appellant did not think he had ever before seen the claimant's letter of July 2, 1945.
He stated only: It has the Commission stamp. It may go to the claim clerk. So far as the
record discloses, the claimant had no way of knowing the ground of the commission's refusal
to allow compensation. Did it find that the relation of employer and employee did not exist?
That the employer was not subject to the act? That the accident did not occur within the
course or scope of claimant's employment? That the claimant suffered no injury whatsoever?
That he filed no claim or that, if filed, it failed to comply with statutory requirements? That
he gave no notice of the accident or that such notice, if given, failed to comply? That his
notice, though late, sought an excuse therefor under one or all of the four statutory grounds,
but that none of such grounds had any factual basis?
Appellant contends that Nevada Industrial Commission v. Demosthenes, 61 Nev. 355, 128
P.2d 746, is decisive of the main point of this appeal, namely, that pursuant to sec. 34 1/2 of
the Nevada Industrial Insurance Act, N.C.L. sec. 2716, the failure to give notice is a bar to
any claim for compensation.
to any claim for compensation. In the Demosthenes case the commission had denied all claim
for accident benefits, as well as claim for compensation. Indeed it had refused to permit the
claimant even to file a claim for compensation or benefits, claiming that the injured employee
had not been reported in the payrolls of the employer, and refusing to listen to the employer's
explanation that the employee had been employed after the filing of the employer's last
payrolls. The district court in that case rendered judgment against the commission upon the
employee's complaint, both for accident benefits (hospitalization, doctor's fees, etc.) and for
$30, being one month's compensation for loss of employment. On appeal, Mr. Justice Taber
writing the opinion, this court carefully reviewed many of the provisions of the Nevada
Industrial Insurance Act and distinguished the provisions providing accident benefits from
those providing compensation. Only in the last paragraph of a long and carefully considered
opinion did the court give any consideration to the question of lack of notice on the part of the
employee as barring his claim for compensation. This paragraph held simply: (1) That the
employer's report did not constitute the required statutory notice signed by the employee; (2)
that if a proper notice had been mailed in time and received by the commission, it would
not have been invalidated because not sent by registered mail; (3) that the statutory notice was
not given in any manner or at all; (4) that the commission's refusal to permit the filing of a
claim afforded no excuse for failure to give the notice; and (5) that the filing of suit in the
district court did not constitute a notice. The holding does not touch the question here
presented to us, which deals entirely with the question of excuse for the employee's delay in
mailing his notice.
Appellant relies on Oklahoma Ry. Co. v. Banks, 155 Okl. 152, 8 P.2d 17, 20. There the
court held that where the failure to give notice was made an issue before the commission, it
was its duty to hear the evidence and make a finding in accordance with the facts, either
excusing the failure on statutory grounds, or refusing to excuse the failure; and that as it
had not excused the failure "it was without authority to make any award."
make a finding in accordance with the facts, either excusing the failure on statutory grounds,
or refusing to excuse the failure; and that as it had not excused the failure it was without
authority to make any award. The court further held, after an examination of the record, that
there was no evidence of any excuse, but remanded the case for further hearing so that if the
claimant had evidence to excuse the failure, he might have an opportunity to produce it.
However, the court distinguished and impliedly approved an earlier Oklahoma case,
Oklahoma Gas and Electric Company v. Thomas, 115 Okl. 67, 241 P. 820, in which lack of
notice was held not to be jurisdictional where the employer had actual notice and suffered no
prejudice. Likewise in a later Oklahoma case, Rucks-Brandt Const. Co. v. Price, 165 Okl.
178, 23 P.2d 690, the court held that the notice was not jurisdictional. Here, the court found,
on substantial evidence, that the employer had notice on the day of the accident.
In justification of its contention that the commission never acquired jurisdiction to allow
compensation in this case, appellant cites 71 C.J. 960, Workmen's Compensation Act, sec.
722(3) as follows: Every statutory step for maturing a claim from the time of the injury to its
final adjudication under the compensation laws is a mandatory requirement to the exercise of
jurisdiction by the statutory agencies. 71 C.J. 960, section 722, citing In re Levangie, 228
Mass. 213, 117 N.E. 200; Maryland Casualty Co. v. Lafield, Tex.Civ.App., 29 S.W.2d 444;
Employers' Indemnity Corp. v. Felter, Tex.Civ.App., 264 S.W. 137.
The C.J. citation is too general to be of assistance, and the Massachusetts case and the two
Texas cases cited in support of the rule have to do with procedures in no way in point here.
1. For the purposes of this appeal we find it unnecessary to determine whether a request,
either formal or informal, to be excused from strict compliance with the thirty-day notice
provision, was necessary to invoke the commission's jurisdiction to pass on such request,
and so to consider the claim at all.
thirty-day notice provision, was necessary to invoke the commission's jurisdiction to pass on
such request, and so to consider the claim at all. The statutory ground for the commission to
excuse the failure existed, namely, that the employer had actual knowledge of the occurrence
of the accident resulting in such injury. And we have no hesitancy in holding that the letter
herein quoted brought such employer's actual knowledge directly to the attention of the
commission. Other cases will have to stand on their own facts, but under the circumstances of
this case, as disclosed by the record, the commission had authority and jurisdiction to act. It
denied that it rejected the claim for compensation, and no proof of notice of rejection was put
in evidence, but plaintiff testified that he had some one at the hospital telephone and try to get
the commission's man that was at the plant to come and see him, but that this man sent
word that plaintiff's case didn't interest him in the least. Appellant called only two
witnesses at the trial. One, a former nurse at the hospital, testified to a purported admission of
plaintiff of a former injury of which the present one was simply a recurrence. Plaintiff denied
it and the trial court apparently gave it no weight or credence. The other witness was a
member of the commission and testified simply to the fact that no employer's accident
report was ever filed. Appellant makes no reference to the latter testimony in its briefs nor
was it mentioned in the oral argument. It is not asserted that the employer's failure to report
the accident can prejudice the rights of the injured employee, though it is a fact that the
statute requires the employer to make such report. We mention these matters to indicate the
entire scope of the defendant's case at the trial. If it did not reject claimant's claim and notice,
it at least ignored them. It admitted that it had paid no compensation. The trial court was
justified in concluding that the commission had rejected claimant's explanation, though it
showed immediate knowledge of the accident by the employer. This is implicit in the formal
conclusions of law signed by the court, to the effect that the injury was suffered in the
course of and arising out of respondent's employment, that the employer on the same day
had actual notice thereof and that respondent was therefore entitled to judgment.
injury was suffered in the course of and arising out of respondent's employment, that the
employer on the same day had actual notice thereof and that respondent was therefore entitled
to judgment.
2. The decisions are overwhelmingly in support of the rule that actual notice or knowledge
of the injury brought home to the employer will excuse timely, formal notice. 71 C.J. 989,
Workmen's Compensation Act, sec. 769, and note citing numerous cases from the courts of
last resort from twenty-six states. Ex parte Stith Coal Co., 213 Ala. 399, 104 So. 756; Ocean
Acc. & Guaranty Corp. v. Nance, Tex.Civ.App., 25 S.W.2d 665.
Appellant contends that respondent's amended complaint is predicated squarely upon an
allegation of notice within thirty days; that it is not predicated upon an excused or excusable
failure to give the notice within thirty days; and that the court's findings and conclusions
holding that one or more of the statutory excuses existed were outside of the issues and
unwarranted. In support of this, appellant cites numerous cases adhering to the general rule
that the findings and judgment must be within the issues made by the pleadings.
3. The rule of liberal construction of Workmen's Compensation Acts has been applied in
numberless cases in this and other courts and in a great variety of occasions and
circumstances, including matters of procedure. See, for example Caspar v. East Providence
Artesian Well Co., 49 R.I. 8, 139 A. 470, 471, in which the Rhode Island Workmen's
Compensation Act provided that no proceedings for compensation for any injury shall be
maintained unless notice in writing thereof shall have been given to the employer within
thirty days after the happening of the injury, but that want of notice shall not be a bar to such
proceedings if the employer or his agent had knowledge of the injury, or if the failure to give
such notice was due to accident, mistake or unforeseen cause. The notice was not given, and
the evidence clearly showed that this was due to an excusable mistake, but the decree as
drawn by plaintiff's counsel and signed by the court stated that the failure of notice was
excusable because the employer had actual knowledgewhich was entirely contrary to
the evidence.
was excusable because the employer had actual knowledgewhich was entirely contrary to
the evidence. The supreme court said: We shall consider this appeal upon the real question
raised [the finding that there was a valid excuse for the failure to give notice] and disregard
the error in the decree.
4. In American Radiator Co. v. Andino, 217 Ala. 424, 116 So. 121, 122, the verified
complaint alleged notice pursuant to the provisions of the Workmen's Compensation Act. A
variance was claimed because of lack of proof of notice. The court said: No evidence of such
notice was offered. But the answer denied and put in issue the fact of knowledge, the
alternative requirement of section 7578 [Code 1940, Tit. 26, 304], and the evidence and
finding of fact was directed to that issue. No question of variance, therefore, arises. This
compares very closely to what happened in the instant case, and the reasoning of the Alabama
court appeals to us as reasonable. The amended complaint alleged notice to the commission
within thirty days. The answer denied this. Plaintiff alleged his employment by his employer,
the general nature of his work, the particular work he was engaged in at the time of the
accident, and, in considerable detail, the accident and the injury, the immediate knowledge
thereof by the employer, the taking of plaintiff immediately to defendant's first aid station, his
removal therefrom in defendant's ambulance to the hospital maintained by defendant with the
express permission of Nevada Industrial Commission, his treatment at the hospital by the
nurses and doctor as employees of his employer, the aggravation of his injury by the negligent
application and subsequent breaking of cords or ropes by which certain traction weights were
attached to and suspended from his feet, etc., all of which was denied by the commission's
answer. This, we think, put in issue before the court the question of the knowledge of the
accident and the injury by the employer, as an alternative of the statutory notice. If
respondent had, at the conclusion of his case, asked leave to amend to conform to the
proof, by alleging that the notice, though late, was excused by the notice to and
knowledge of the employer and that appellant had arbitrarily refused to consider such
excuse, the learned district judge would undoubtedly have granted such request.
respondent had, at the conclusion of his case, asked leave to amend to conform to the proof,
by alleging that the notice, though late, was excused by the notice to and knowledge of the
employer and that appellant had arbitrarily refused to consider such excuse, the learned
district judge would undoubtedly have granted such request.
Any other conclusion would necessarily involve a strict and harsh construction of the act
rather than the liberal construction universally considered proper, having due regard to the
remedial and salutary purpose of such legislation. Virden v. Smith, 46 Nev. 208, 210 P. 129.
We should probably be reinforced in this conclusion were we to consider the sufficiency of
the evidence to warrant the existence of the other statutory grounds of excuse for failure of
strict statutory notice. We have noted that the court found the existence of two of the three
additional statutory grounds, namely, the physical or mental inability of the employee and
the existence of some sufficient reason why the notice could not have been given. The
additional ground provided by statute as such excuse received little attention by either
partypossibly because they, like the court, are not sure of what it means. We refer to the
excuse That failure to give such notice will not result in an unwarrantable charge against the
state insurance fund. We doubt that any compensation claim would be allowed, no matter
how punctilious the claimant had been in the compliance with every requirement, the dotting
of every i, and the crossing of every t, if his claim resulted in an unwarrantable charge
against the state insurance fundi. e., if we give the word its usual meaningindefensible,
not justifiable.
Our holding in the present case is simply this: Where an employee working for an
employer subject to the terms of the Nevada Industrial Insurance Act, N.C.L. sec. 2680 et
seq., has been injured in the course of his employment under the eye of his employer, so that
the latter has full notice and knowledge of the accident, and during his resulting
hospitalization gives written notice to the Nevada Industrial Commission, dated seven
days late and received fourteen days late {the Demosthenes case having held that failure
to register the letter would not invalidate the notice), and that implicit in such notice is a
statement of one or more grounds of statutory excuse for failure of strict compliance, the
commission may not divest itself of jurisdiction to allow the claim by refusing or
neglecting to pass upon the issue of the excuse, and that in an action by the claimant
against the commission in which the jurisdictional facts are otherwise recited, the district
court in turn has jurisdiction to receive evidence and pass upon the question of excuse, as
well as the other issues involved.
during his resulting hospitalization gives written notice to the Nevada Industrial Commission,
dated seven days late and received fourteen days late (the Demosthenes case having held that
failure to register the letter would not invalidate the notice), and that implicit in such notice is
a statement of one or more grounds of statutory excuse for failure of strict compliance, the
commission may not divest itself of jurisdiction to allow the claim by refusing or neglecting
to pass upon the issue of the excuse, and that in an action by the claimant against the
commission in which the jurisdictional facts are otherwise recited, the district court in turn
has jurisdiction to receive evidence and pass upon the question of excuse, as well as the other
issues involved.
5. Appellant commission fears that the recognition of respondent's claim for
compensation would open a veritable floodgate to all sorts of delayed filings, questionable
claims and future endeavors to show by interested and questionable testimony matters of
excuse, all of which would tend to prevent the orderly administration and consideration of the
thousands of cases that come before The Nevada Industrial Commission annually * * *.
Such fear is, we think, greatly magnified and exaggerated. In the jurisdictions in which an
appeal or other proceeding attacking the findings and award of the commission is lodged
directly in the appellate court, such court gives to the findings of the commission the weight
that this court accords to the findings of a trial court. Due consideration is undoubtedly given
by the district courts of this state to the findings of the commission on issues of fact
submitted to it. Our conclusions in this case should enhance rather than detract from the
accomplishment of one of the main purposes of the actto have cases of this kind fairly and
competently handled by a statutory board, and thus greatly relieve the congestion of court
calendars.
We have given consideration to the many additional authorities cited by appellant. They
are distinguishable either upon the facts or by reason of particular statutory provisions, or are
not in accord with the majority rule affecting the points involved in this appeal.
provisions, or are not in accord with the majority rule affecting the points involved in this
appeal. Detailed discussion of these cases is not thought necessary.
The judgment and the order denying appellant's motion for a new trial are hereby affirmed
with costs.
____________
67 Nev. 273, 273 (1950) Ormachea v. Ormachea
THOMAS ORMACHEA, appellant v. MARGUERITE
LUCILLE ORMACHEA, respondent.
No. 3575
April 17, 1950. 217 P.2d 355.
Marguerite Lucille Ormachea brought action for divorce against Thomas Ormachea. A
judgment for plaintiff and order denying new trial were entered by the First Judicial District
Court, Churchill County, Clark J. Guild, Judge, and the defendant appealed. The Supreme
Court, Wines, District Judge, held that evidence supported finding that a valid common-law
marriage existed between parties, as regards wife's right to bring action for divorce.
Affirmed.
1. Marriage.
Where relations of parties in the beginning were illicit, though burden of proof is upon party asserting
valid marriage to prove it, there is no presumption that relationship continued to be illicit, and if there is
any presumption, it is in favor of a valid marriage, and such presumption may be based on continuous
cohabitation.
Determination of facts on conflicting evidence is within exclusive province of trial court, sitting without a
jury, and its findings will not be disturbed on appeal unless it is clear that a wrong conclusion was reached.
3. Marriage.
Fact that woman after parties had commenced to live together openly had on several occasions expressed
desire that parties enter into ceremonial marriage did not prove that she did not enter into a common-law
marriage.
____________________
Page 273, the words, A judgment for plaintiff and order denying new trial were entered by the First Judicial
District Court, Churchill County, Frank McNamee, Presiding Judge, and the defendant appealed, should read,
A judgment for plaintiff and order denying new trial were entered by the First Judicial District Court, Churchill
County, Clark J. Guild, Judge, and the defendant appealed.
4. Marriage.
The presumption is in favor of a valid marriage, and arises when continuous cohabitation is shown.
5. Marriage.
Where there was proof that parties were reputed to be man and wife in community where they resided
and been so considered for many years prior to their separation, it would require most convincing and
cogent proof to overcome such evidence and the presumption of a valid marriage which it raised.
6. Marriage.
Evidence that parties had lived together for several years, during which time seven children were born to
parties, and that parties were reputed to be man and wife in community in which they resided supported
finding that valid common-law marriage existed between parties, as regards woman's right to bring action
for divorce.
7. Divorce.
Existence of extreme cruelty as a ground for divorce frequently depends upon character and refinement
of the parties, and conclusion to be reached in each case must depend upon its own particular facts.
8. Divorce.
Cruelty as a ground for divorce may exist without personal violence and such cruelty working on the
mind may affect the health.
9. Divorce.
Element of danger to life, limb or health, or reasonable apprehension thereof, must exist in order to
constitute cruelty justifying divorce.
10. Divorce.
Evidence supported decree awarding wife a divorce on ground of extreme cruelty.
11. Divorce.
Appellate court would not substitute its judgment for that of trial judge in determining whether wife was
entitled to divorce on ground of extreme cruelty and would reverse only when there was no substantial
evidence to support trial court's finding.
12. Bastards.
Where parties were man and wife when child was born, and had been living together as man and wife
some 13 years, and they cohabited as man and wife for several years there after, the child would be
conclusively presumed to be legitimate. N.C.L.1931-1941 Supp., sec. 9047.06.
13. Divorce.
Evidence failed to show that trial court abused its discretion in awarding custody of four children under
age of 14 to wife and allowing each of the three children over age of 14 to select parent with whom he
would live, and in giving each parent the right to visit children living in home of other
parent.
each parent the right to visit children living in home of other parent.
14. Judgment.
An order which does not determine all rights of the parties, or, which reserves a question for future
consideration and determination, is not a final judgment. N.C.L.1929, sec. 8794.
15. Judgment.
Where trial court does not dispose of all issues presented by case, and reserves any issue presented by
case for future consideration, it is in fact entering an interlocutory order and not an interlocutory
judgment. N.C.L.1929, sec. 8794.
16. Divorce.
A so-called decision in divorce action determining issues as to marriage, right of wife to divorce and
custody of children and reserving for consideration for 30 days the question of support and maintenance of
children, and division of property was an interlocutory order, and subsequent so-called opinion and
decision adopting findings of earlier decision and making findings on reserved issues became the
judgment of the court. N.C.L.1929, sec. 8794.
17. Divorce.
The form of judgment in divorce action fixing property rights of parties in the alternative is not defective.
18. Judgment.
Effect of judgment must be ascertained by construction of it, which presents question of law for the court,
and, where judgment is susceptible of two interpretations, that one will be adopted which renders it more
reasonable and harmonizes it with facts and law of the case.
19. Judgment.
Any conflict between original judgment and formal judgment must be resolved by adopting terms of the
original judgment.
20. Divorce.
Husband should not be heard to complain of any uncertainty in original judgment in divorce action
awarding certain property to wife, but giving husband option to purchase the property for fixed amount,
where any uncertainty in original judgment was resolved in husband's favor by terms of the formal
judgment. N.C.L.1929, sec. 8622.
21. Divorce.
Husband should not be heard to complain that judgment in divorce action awarding certain property to
wife, but giving husband option to purchase property for fixed amount, was uncertain in that it did not
appear whether sum to be paid by husband to wife in event he exercised option should be held by her as her
separate property or as trustee for benefit of herself and minor children, since husband would not lose or
gain in any event individually.
Whenever substantial justice is done, a technical error, which has worked no injury, will not warrant a
reversal. N.C.L.1929, sec. 8622.
23. Divorce.
If trial court's conclusion in divorce action that there was both separate and community property
belonging to each of the respective parties was proper on any theory and was sustained by findings and
evidence, it was duty of supreme court to affirm, regardless of whether reason assigned by trial court for its
conclusion was proper.
Trial court's opinion is no part of the judgment and can only be used to aid supreme court in a proper
determination of the appeal.
25. Divorce.
Where defendant in divorce action did not complain in trial court of failure to make special findings as
basis of the decree, defendant could not complain thereof for first time on appeal.
Earnings of either a husband or a wife are community property.
27. Husband And Wife.
If skill and efforts of either husband or wife or both are essential to profits gained from operation or
management of separate property, then in at least a part the profits are community property.
Where no attempt was made by husband to keep the separate and community property segregated, and it
was impossible to determine what was community and what was separate property, such intermingled
properties would be considered as community property.
29. Husband And Wife.
Husband, as manager of community property, has duty to keep community and seperate property
segregated.
Evidence in divorce action supported finding that there was both community and separate property, so as
to authorize division and award of property on such basis.
31. Divorce.
The court in divorce action had authority to make an award of husband's separate property for support of
wife and minor children, notwithstanding repeal of statute authorizing court in divorce action to award to
party least at fault a portion of other's property. N.C.L. 1931-1941 Supp., sec. 9463, as amended by Laws
1949, chap. 45.
32. Divorce.
In divorce action, where husband was directed to pay wife the sum of $70,000 in 17 equal, annual
installments, trial court was authorized to further order that payment of the sum be
secured by lien upon all property of the husband until paid.
court was authorized to further order that payment of the sum be secured by lien upon all property of the
husband until paid.
33. Divorce.
Generally, where court awards property to one spouse and a specified sum to the other, the property may
be subjected to a lien to secure the amount awarded.
34. Divorce.
In action wherein wife obtained divorce on ground of extreme cruelty, evidence failed to show that trial
court's various awards and division of property were improper as having impoverished husband and
enriched wife, or as having sacrificed productive and growing business to accomplish a division of
property.
35. Divorce.
If shown that circumstances have become so changed that husband's obligations to his children under
divorce decree have become burdensome or impossible, he may appeal to the court for relief and show
such changed circumstances. Laws 1947, chap. 70.
36. Costs.
A court of equity is not bound by statute fixing costs as in other cases but may exercise its discretion.
N.C.L. 1929, sec. 8927.
37. Divorce.
In action wherein wife obtained divorce on ground of extreme cruelty, trial court did not abuse its
discretion in providing that costs awarded to wife should include cost of preparing evidence to be offered
in support of her case and costs in preparing evidence requested by trial court. N.C.L. 1929, sec. 8927.
38. Divorce.
In action wherein wife obtained divorce on ground of extreme cruelty, trial court did not err in allowing
timely filing of a cost bill after entry of its opinion and decision, which was the final judgment,
notwithstanding that prior cost bill had been filed after filing of interlocutory order. N.C.L. 1929, sec.
8927.
39. Divorce.
In divorce action, where awards made to wife before determination of appeal were made on showing of
wife's necessities and husband's ability to pay were payable out of specific allotment made in favor of wife,
and sums made available by affirmance of the judgment provided wife with sufficient moneys for items
previously allowed, all sums paid by husband under prior orders should be credited against the specific
allotment to wife.
40. Divorce.
Each party to divorce action would be ordered to pay his or her own respective costs on appeal under
particular circumstances of the case.
Kearney & Adams, of Reno, and A. L. Haight, of Fallon, for Appellant.
Griswold & Vargas, of Reno, and James W. Johnson, Jr., of Fallon, for Respondent.
OPINION
By the Court, Wines, District Judge.
This is an appeal from a judgment rendered by the district court of the First judicial
district, and from an order denying a new trial.
The action in the district court was one for divorce. The appellant's first assignment of
error is that the evidence fails to establish the marriage.
These parties first met in the summer of 1930. Soon after this meeting the parties had
illicit relations. The respondent became pregnant, and some time during the month of
October, 1930, began living openly with the appellant. The parties continued to live together
and to maintain a common home from then until July, 1947, when the respondent left their
home and began living separate and apart from the appellant. During this time seven children
were born to the parties, the last being born in 1943.
The children, as they reached school age, were registered at school as the children of
Thomas Ormachea and Marguerite Lucille Ormachea, and with the exception of the last born
of these children, the respondent at all times recognized and treated the children as his own
and provided them with necessaries.
During this period the parties here signed legal documents as man and wife, and they were
accustomed to making income tax returns as man and wife. The appellant maintained
accounts at several stores in Fallon, Nevada, where they resided, and the respondent
purchased food and clothing for herself and the children from the various establishments at
which the appellant maintained accounts.
from the various establishments at which the appellant maintained accounts.
Several persons of some prominence who resided in Fallon, Nevada, testified that the
parties were reputed to be man and wife in that community. In addition to proving open and
continuous cohabitation as man and wife in this community for all these years, the respondent
testified that she and the appellant lived together as man and wife, and that this was with the
consent of respondent and of the appellant.
Except as to the last statement of the foregoing paragraph, the appellant does not dispute
the evidence, but insists nevertheless that the evidence falls short of showing a marriage,
because on many occasions the respondent requested the appellant to formalize their relations
by a marriage ceremony, and on at least one occasion told the appellant that he had no voice
in a matter involving one of the children since she was not married to him. This, it is argued,
plainly shows that the respondent at no time considered her relations with the appellant as
other than illicit; that while respondent held this view of their relations she could not have
contracted a common-law marriage with the appellant, as that would have required her
consent to and acknowledgment of their marital status.
1. We have no quarrel with the appellant's view of the law that if for all of the years
appellant and respondent lived together the respondent held the belief that her relations with
the appellant were illicit, she could not have given the necessary consent to live together as
man and wife which is required in all cases of common-law marriage. On the other hand, the
appellant's proposition is not aided by the presumption that relations shown to have begun
illicitly will be presumed to remain so in the absence of clear and compelling proof. That
such a presumption has been indulged in other jurisdictions is not disputed, but it has long
been the rule in this state that when the relations of the parties in the beginning are illicit,
there is no presumption that the same continues to be so, but the burden of proof is upon
the party asserting a valid marriage to prove the same.
beginning are illicit, there is no presumption that the same continues to be so, but the burden
of proof is upon the party asserting a valid marriage to prove the same. If there is any
presumption, it is in favor of a valid marriage, and this presumption may be based on
continuous cohabitation. Parker v. De Bernardi, 40 Nev. 361, 164 P. 645.
2. Then too, the appellant's argument would carry more weight if his testimony indicating
the respondent considered their relations as illicit had not been contradicted by the
respondent's testimony. It is not our province to determine the credibility of witnesses. It is
the exclusive province of the trial court, sitting without a jury, to determine the facts on
conflicting evidence and its finding will not be disturbed unless it is clear that a wrong
conclusion was reached. Murray v. Osborne, 33 Nev. 267, 111 P. 31; Botsford v. Van Riper
et al., 33 Nev. 156, 110 P. 705; McNee v. McNee, 49 Nev. 90, 237 P. 534; Orr Ditch &
Water Co. v. Silver State Lodge, 58 Nev. 292, 78 P.2d 95.
3. We do not find anywhere in the record any contradiction of appellant's testimony that
respondent on several occasions expressed a desire that the parties enter into a ceremonial
marriage. That does not prove, however, that respondent considered their relations as
immoral. Nor does it follow that because she expressed such a desire that she did not enter
into a common-law marriage. 55 C.J.S., Marriage, sec. 45, page 914.
4-6. The presumption is in favor of a valid marriage, and arises when continuous
cohabitation is shown. Parker v. De Bernardi, supra. In the instant case not only do we have
evidence of many years of cohabitation, but in addition proof that appellant and respondent
were reputed to be man and wife in the community where they resided, and had been so
considered for many years prior to their separation. It would require the most convincing and
cogent proof to overcome such evidence and the presumption it raises. We are satisfied that
the trial court reached the proper conclusion.
fied that the trial court reached the proper conclusion.
7. The appellant next argues that if a common-law marriage did in fact exist between the
parties, the trial court erred in awarding a decree of divorce to the respondent upon her
showing of extreme cruelty.
In considering extreme cruelty as a ground of divorce courts have cautiously given it
negative, rather than affirmative definitions. The difficulty in giving an affirmative definition
arises from the fact that cruelty is a relative term; its existence frequently depends upon the
character and refinement of the parties, and the conclusion to be reached in each case must
depend upon its own particular facts. We do not divorce savages and barbarians because they
are such to each other,' and the Supreme Court of Pennsylvania in Richards v. Richards. We
can exercise no sound judgment in such cases (divorce cases) without studying the acts
complained of in connection with the character of the parties, and for this we want the
common sense of the jury rather than fixed legal rules.' 37 Pa. [225], 228. Kelly v. Kelly, 18
Nev. 49, 55, 1 P. 194, 195, 51 Am.Rep. 732.
8, 9. That case is also authority for two rules relative to that ground for divorce; namely,
there may be cruelty without personal violence and such cruelty working on the mind may
affect the health, but that in any event the conduct complained of must result in danger to life,
limb or health or in the reasonable apprehension of such danger. This court has not since that
case departed from or enlarged upon those rules. Kapp v. District Court, 31 Nev. 444, 103 P.
235; Nielsen v. Nielsen, 55 Nev. 425, 38 P.2d 663; Miller v. Miller, 54 Nev. 44, 3 P.2d 1069,
rehearing granted, 54 Nev. 44, 6 P.2d 1117, affirmed 54 Nev. 44, 465, 11 P.2d 1088. In some
jurisdictions the latter rule has been enlarged to include conduct which destroys the legitimate
objects and ends of the marriage. Hassell v. Hassell, 185 Okl. 154, 90 P.2d 885; Smith v.
Smith, 61 Ariz. 373, 149 P.2d 683; Stegmeir v. Stegmeir, 158 Kan. 511, 148 P.2d 755;
Holloman v. Holloman, 49 N.M. 2SS, 162 P.2d 7S2.
v. Holloman, 49 N.M. 288, 162 P.2d 782. This court has already stated, however, that the
broadening of the present rule must await legislative action. Nielsen v. Nielsen, supra.
We do not wish to be understood as saying that the respondent's case fails because of this.
The evidence shows that for many years prior to the separation of the parties the appellant
manifested an indifferent attitude toward respondent. This despite the respondent's unstinted
efforts in forwarding their business affairs; and in fact the respondent performed tasks on the
ranch usually assigned to men hired to do ranch work. This the respondent did for many
years, and during that time bore seven children. During the one or two occasions she was ill,
and during respondent's pregnancies, her condition served only to arouse appellant's
impatience.
The respondent testified that the appellant was domineering and critical toward her. When
in the later years the parties prospered, the respondent was not rewarded by light work and
increased comforts, but, by appellant's indifference and hardness toward her. This aspect of
the case was aptly summed up by the trial court in the remark that in many years' experience
as a trial judge he had not become acquainted with a case where a person had given so much
and received so little.
For some years prior to the separation the respondent had resented what she felt were
improper attentions by appellant to another woman. We think the events related by her
justified such feeling, but efforts to obtain from the appellant some explanation met not only
with failure, but resulted in arousing his anger and the remark on one occasion, that if she
didn't like it, she could get off the ranch.
The events related by the respondent, and which led eventually to the separation, discussed
as isolated occurrences do not impress forcibly. When considered, however, as manifestations
of an indifferent, harsh and sometimes hostile attitude toward the respondent and her well
being, these events make considerable imprint.
We think the appellant's attitude toward respondent is displayed by his behavior on the
occasion of the birth of their seventh child. After raising the question of the paternity of this
child, he let the matter drop and continued to live with the respondent.
In July of 1947 respondent left their common home and moved to another residence. At
the time she left she stated to the appellant that she was all in, that she had been irrigating,
and helping with the haying, and trying to keep a garden and keep house, and all that work,
and she was, just about ready to break down.
10, 11. This is the only testimony bearing directly upon the effect appellant's treatment had
upon the respondent. The appellant insists that it is not enough and does not establish danger
to health, life, limb or the reasonable apprehension thereof. We think it does. We cannot
always expect that a party in a divorce action will express himself explicitly. In such a matter
as this we must to a great extent rely on the trial judge's impressions. He sees and hears the
witnesses, and acquaints himself with the way in which a witness expresses himself. He is in
a better position to observe the conduct and demeanor of the witness and whether the witness
tends to overstate or understate his testimony. Wittenberg v. Wittenberg, 56 Nev. 442, 55
P.2d 619. In this case the trial court had substantial evidence to make a finding, and we are
not inclined to disturb it. Porter v. Tempa Mining & Mill Co., 59 Nev. 332, 93 P.2d 741; In re
Manse Spring, 60 Nev. 280, 108 P.2d 311. As an appellate court we cannot substitute our
judgment for that of the trial judge in such matters, and will reverse only when there is no
substantial evidence to support the finding of the trial court.
It appears from the foregoing that there were seven children born, the issue of the
marriage. The care, custody and control of four of the seven children was awarded to the
respondent. All of the children given into respondent's care were daughters of the appellant
and respondent, and were younger than the other three.
and respondent, and were younger than the other three. None of the children whose custody
was awarded to the respondent had yet reached the age when she would be allowed to choose
with whom she would reside. All of the three older children were over the age of fourteen
years, and each was permitted to select the parent with whom he would live. Each party was
given the right to visit the children living in the home of the other party.
The appellant cites this as error, and argues that the interests of the children would be
better served by awarding to appellant the care, custody and control of all the children, except
the last born. The appellant makes no such appeal as to the last born of their children, since
he denies that he is her father. But as to the others it is said that because respondent
conducted herself improperly on several occasions, she is not a fit and proper person to have
the custody of the children.
12. To begin with, the appellant's position as to the last-born child finds no support in law.
We desire to make that clear at once. The parties were man and wife, and when this child was
born in 1943, they had been living together as man and wife some thirteen years, and they
thereafter cohabitated as man and wife until the year 1947. A child born under such
circumstances is conclusively presumed to be legitimate. See sec. 9047.06, N.C.L.1931-1941
Supp.
13. Nor are we convinced that the trial court abused its discretion in making such an
award. A perusal of the record fails to disclose any instance of neglect or abuse of the
children by respondent. Respondent has apparently always been properly solicitous of the
welfare of her children and seemed, in fact, more interested in providing them with such
advantages as could be afforded, than the appellant. The record shows that during the time the
appellant was submitting evidence of the wrong doing of respondent, the trial court also
questioned the witnesses. Thereafter the respondent categorically denied such acts and
apparently the court was satisfied after hearing all the evidence that the respondent was not
disqualified to act as custodian. Under the rule announced above, we cannot say the court
abused its discretion or misconstrued the facts.
rule announced above, we cannot say the court abused its discretion or misconstrued the facts.
We do not think that in view of what has been said above concerning the last born child
that there has been any error in the allowance made for her support and maintenance. The
parties to this action remain responsible for her support and maintenance.
The appellant has taken exception to the court's order directing him to pay the sum of
thirty-five dollars each month for the support and maintenance of each child living with the
respondent, and to the award of property made to the respondent.
He complains too, that the judgment is defective in form and cannot be sustained. In order
to properly present these issues it will be necessary to ascertain the character and extent of the
property at the time of the separation of the parties, and to give a brief history of this aspect of
their relations.
The appellant stated that at the time of the marriage in 1930 he was the owner of
approximately 4,300 head of sheep, 150 head of cattle and had in a commercial account some
sixteen thousand, eight hundred dollars. At that time the appellant was engaged chiefly in
speculation, that is, in the buying and selling of sheep.
The appellant continued to speculate until the years 1936 and 1937, and was occupied the
greater portion of his time with that business, though beginning with 1933 he also operated a
band of sheep of between 1,000 and 1,200 head for the purpose of producing wool and sheep
for sale.
In 1933 the appellant acquired at a cost of approximately $3,500 a three-fourths interest in
what was known, and will be hereafter referred to as the Kallenbach Ranch. This was a ranch
of approximately 160 acres near Fallon, Nevada, and prior to her death had been the property
of respondent's mother. The three-fourths interest appellant acquired represented the
one-fourth interest of each of respondent's two sisters and the interest of one brother as heirs
of Mrs. Kallenbach. The respondent retained her one-fourth interest, and at the time of the
separation was the owner of an undivided one-fourth interest in and to the Kallenbach
Ranch.
the time of the separation was the owner of an undivided one-fourth interest in and to the
Kallenbach Ranch. A few years after acquiring this ranch the appellant improved the property
and expended some fourteen thousand dollars in so doing.
During the years 1936 and 1937 the nature of appellant's operations changed, and from
then until the parties separated the appellant ceased speculating and began operating several
bands of sheep and a small herd of cattle for the production of sheep, cattle and wool. At
about that time the appellant began acquiring a group of ranches, and within the next five to
six years acquired a number of small ranches, all of which are situate in Churchill County.
The Kallenbach property was established as the operating headquarters of this group of
ranches, and thus the separate holdings became integrated into one operating unit. At the time
of the separation the appellant was using these ranches from which to operate four separate
bands of sheep, of approximately 1,000 head each, and a herd of cattle of approximately 400
head.
We find it unnecessary to describe the ranching properties in detail, and need only note
here that they exceeded 2,000 acres in area, and have been improved and equipped for the
purpose of integrating all in one operating unit. These ranching properties carry the customary
range and water rights.
The value of the ranches, equipment and stock was estimated to be between $150,000 and
$170,000. We have no way of learning from the record, with exactness, what was the annual
gross income from the operation of these properties, but a fairly close check is furnished by
the deposits made to appellant's commercial account in a bank at Fallon, Nevada. For the year
1937 deposits totalling the sum of $38,150 were made; for the year 1938, $31,113; in 1939,
$24,899; in 1940, $40,300; in 1941, $30,121; in 1942, $69,483; in 1943, $78,469; in 1944,
$63,141; in 1945, $56,514; in 1946, $50,720; and in 1947, $53,790.
In the foregoing estimate of value and description of the property we have not included
items of established value. These include a note secured by a mortgage in the amount of
twelve thousand dollars, and an obligation evidenced by a promissory note in the amount of
fifteen hundred dollars, nor have we included a family automobile.
There was in addition to all the above-described properties certain savings accounts, and
appellant admitted to having in his control and possession in 1947, or thereabouts,
approximately eighty thousand dollars, which sum represented the receipts from sales made
in 1947, and withdrawals from various savings accounts. From this sum also should be
deducted, however, twelve thousand dollars, which is accounted for by the note and mortgage
noted above.
The record shows, too, that on only two occasions did appellant find it necessary to borrow
money. In 1933, shortly after purchasing the Kallenbach property, he borrowed five thousand
dollars and gave as security approximately 3,400 head of sheep, and during the year 1947 he
repaid a loan of approximately fourteen thousand dollars.
We do not have, and the record will not furnish, a clear picture of the appellant's money
transactions, as the appellant was unable or reluctant to account for funds on hand at the time
of separation. Nor can we arrive at any definite average as to annual net income, as the
appellant furnished income tax returns for only two years, and could not do more than make a
rough guess at his expenses for the other years. The withdrawals from his commercial
account are not a reliable index since admittedly from time to time sums were withdrawn, to
be later deposited in savings accounts.
The trial court found that, There is both community and separate property belonging to
each of the respective parties. The property was disposed of in the following manner. The
respondent was awarded the Kallenbach Ranch, together with sufficient equipment to
operate it, or, in lieu thereof the appellant was given an option to purchase the ranch for
thirty thousand dollars within thirty days after judgment, provided that if the appellant
should take such option the respondent was to purchase with the thirty thousand dollars
a small ranch for the benefit of herself and children who lived with her.
to operate it, or, in lieu thereof the appellant was given an option to purchase the ranch for
thirty thousand dollars within thirty days after judgment, provided that if the appellant should
take such option the respondent was to purchase with the thirty thousand dollars a small ranch
for the benefit of herself and children who lived with her. The court directed that the
appellant pay to the respondent immediately the sum of ten thousand dollars, and in addition
thereto the sum of seventy thousand dollars, in seventeen equal, annual installments. To
assure the payment of the latter award, the court declared that the seventy thousand dollars
was to be a lien upon all of the property of the appellant until paid.
After making this award to the respondent the court made the following award to the
appellant: That the defendant be awarded all of the remainder of the properties described and
testified to in the action and known as Cherry Valley, War Canyon, Boyer's Ranch, Artesian
Well, Shoshone Springs, Clan Alpine, Cold Springs and Alpine, and specifically described
upon the assessment rolls of the assessor of Churchill County.
Defendant may be awarded all sheep and cattle, machinery, equipment and feed racks
used by him in the operation of the sheep and cattle business, and wherever the same may be
situated provided that the plaintiff in the action may have such farm machinery and
equipment as is now upon the Kallenbach property and used in connection with the operation
and farming of said ranch, including one saddle horse, two head of stock horses, six head of
milk cows or the equivalent thereof, fifty head of yearling sheep and one buck.
First of all the appellant has insisted in respect to the judgment that two separate and
distinct judgments were entered by the trial court.
The trial court, shortly after the matter had been submitted, signed and filed a Decision
in which it was determined that there was a marriage, seven children born the issue of the
marriage, that there was both community and separate property belonging to each of the
respective parties, that the appellant had been guilty of extreme cruelty toward the
respondent and that respondent should be awarded the care, custody and control of the
four younger children, with the right of visitation in the appellant, and since the other
three children were all over the age of fourteen years, each would be allowed to choose
with whom he would live, reserving the right to the other party to visit.
respective parties, that the appellant had been guilty of extreme cruelty toward the respondent
and that respondent should be awarded the care, custody and control of the four younger
children, with the right of visitation in the appellant, and since the other three children were
all over the age of fourteen years, each would be allowed to choose with whom he would live,
reserving the right to the other party to visit. The court then stated that it would reserve for
consideration for thirty days the question of support and maintenance of the children, division
of the property, or an award from the separate property of appellant to respondent, and unless
within thirty days the parties had agreed to these matters, the court would proceed to
determine the same. The court then ordered that respondent have her necessary costs and
disbursements, together with certain other costs which we will discuss hereafter.
Within a few days after the period allowed by the court, the court made and filed an
Opinion and Decision in which all issues were disposed of by repeating the decision of an
earlier date, and adding thereto the awards made to respondent, both of property and money
for her support and for the maintenance and support of the children, and making a division of
the property. The appellant argues that the court disposed of the matter when the first decision
was filed and that there can be only one final judgment in the case.
14-16. As authority for his argument the appellant cites numerous cases for the rule that in
this state the oral pronouncement or written decision is the final judgment and the subsequent
formal judgment is evidence of it merely. 8794, N.C.L. 1929; Central Trust Co. of California
v. Holmes Mining Co., 30 Nev. 437, 97 P. 390; Kondas v. Washoe County Bank, 50 Nev.
181, 254 P. 1080; Hilton v. Hymers, 57 Nev. 391, 65 P.2d 679. We have no quarrel with the
appellant's authorities; that rule is firmly established in this state, but as we see the question
presented here, it is concerned more with what is a final judgment. The statute states that a
judgment is "the final determination of the rights of the parties in the action or
proceeding."
the final determination of the rights of the parties in the action or proceeding. It would
follow that an order which does not determine all the rights of the parties, or, which reserves
a question for future consideration and determination, is not a final judgment. This court has
so held in a number of cases. State v. Logan, 1 Nev. 509, 513; Lake v. King, 16 Nev. 215;
Perkins v. Sierra Nevada Silver Min. Co., 10 Nev. 405; Magee et al. v. Whitacre et al., 60
Nev. 202, 96 P.2d 201, 106 P.2d 751; Elsman v. Elsman, 54 Nev. 20, 28, 3 P.2d 1071, 10
P.2d 963. We have nothing to add to this general rule, that a judgment is final that disposes of
the issues presented in a case, and leaves nothing for future consideration of the court, except
to point out that in view of the statutory definition of a judgment in this state that when the
court does not dispose of all the issues presented by the case, and reserves any issue presented
by the case for future consideration, it is in fact entering an interlocutory order and not an
interlocutory judgment. Nor should such an order be confused with a final judgment which
may require an order to carry it into effect or those instances in which the court reserves the
right to modify the judgment. The so-called Decision made a few days after the matter had
been submitted was, therefore, an interlocutory order, and the later opinion and decision
became the judgment of the court.
The form of the judgment used by the trial court is also attacked by the appellant in respect
to the award made by the court to the respondent of the Kallenbach Ranch. The court used the
following language: The plaintiff in the action is hereby awarded and decreed to have the
full title in and to the Kallenbach Ranch so-called, together with the necessary farm
equipment and machinery now upon said premises and used in the operation and farming of
said premises, or in lieu thereof, and within thirty days hereof, the defendant in the action
may pay to the plaintiff the sum of thirty thousand dollars ($30,000.00) in lawful money of
the United States of America, and with said sum the plaintiff will be required to purchase
a small ranch for the benefit of herself and her minor children.
United States of America, and with said sum the plaintiff will be required to purchase a small
ranch for the benefit of herself and her minor children.
That the defendant be awarded all of the remainder of the properties described and
testified to in the action, and known as Cherry Valley, War Canyon, Boyer's Ranch, Artesian
Wells, Shoshone Springs, Clan Alpine, Cold Springs and Alpine, and specifically described
upon the assessment rolls of the Assessor of Churchill County.
Defendant may be awarded all sheep, cattle, machinery, equipment and feed racks used
by him in operations of the sheep and cattle business, and wherever the same may be situated,
provided that the plaintiff in the action may have such farm machinery and equipment as is
now upon the Kallenbach Ranch and used in connection with the operation and farming of
said ranch, including one saddle horse, two head of stock horses, six head of milk cows or the
equivalent thereof, fifty head of yearling sheep and one buck. The appellant avers that the
foregoing is a judgment in the alternative, is uncertain and therefore void.
17. The vice of such a judgment seems to be that it does not fix the rights of the parties. It
would seem, however, that unless a judgment is defective for that reason it should be allowed
to stand. This form of judgment has been used and approved in actions involving the right to
possession of personal property, and modern practice permits the use of a similar form in
other actions where the judgment is definite and certain. 49 C.J.S., Judgments, sec. 73, page
192; Parish v. McConkie, 84 Utah 396, 35 P.2d 1001; Peterson v. Overson, 52 Ariz. 203, 79
P.2d 958.
18. The legal operation and effect of a judgment must be ascertained by a construction
and interpretation of it. This presents a question of law for the Court. Judgments must be
construed as a whole, so as to give effect to every word and part. The entire judgment roll
may be looked to for the purpose of interpretation. Necessary legal implications are included
although not expressed in terms, but the adjudication does not extend beyond what the
language used fairly warrants.
expressed in terms, but the adjudication does not extend beyond what the language used fairly
warrants. The legal effect, rather than the mere language used governs. In cases of ambiguity
or doubt, the entire record may be examined and considered. Judgments are to have a
reasonable intendment. Where a judgment is susceptible of two interpretations, that one will
be adopted which renders it the more reasonable, effective and conclusive, and which makes
the judgment harmonize with the facts and law of the case, and be such as ought to have been
rendered. Aseltine v. District Court, 57 Nev. 269, 62 P.2d 701, 702.
The appellant considers the judgment in this instance to be uncertain in at least two
respects. (1) That it is not clear whether upon the payment of thirty thousand dollars the
appellant is to have the Kallenbach Ranch, together with the necessary equipment and stock
for its operation, or, the Kallenbach Ranch without the stock. (2) That it is not clear whether
the Kallenbach Ranch was awarded to the respondent in trust for the support of herself and
the minor children who reside with her.
If the appellant considers his position uncertain under the original judgment, he cannot
complain about the formal judgment. That portion concerned with the Kallenbach property
readsIt is further ordered, adjudged and decreed that the plaintiff should have, and she is
hereby given and granted, and awarded and decreed the full right, title, ownership and interest
of, in and to the undivided three-fourths interest of that certain ranch located in the County of
Churchill, State of Nevada, commonly known as and called the Kallenbach Ranch, and
hereinafter more particularly described, together with the necessary farm equipment and
machinery now upon said premises and used in the operation and farming thereof, including,
but without being limited to, one saddle horse, two head of stock horses, six head of milk
cows or the equivalent thereof, fifty head of yearling sheep and one buck, in trust for her and
the minor children hereunder awarded to her, and who may hereafter elect to come within
her custody, as and for the support, maintenance of the plaintiff and said minor children,
without any right, title, claim or interest therein by or on behalf of the defendant; or, in
lieu thereof, and within thirty days from the date hereof, the defendant may pay to the
plaintiff for said premises and said personal property, immediately hereinbefore
described, the sum of thirty thousand dollars, lawful money of the United States of
America, in which event plaintiff shall transfer said ranch and said personal property to
the defendant.
hereafter elect to come within her custody, as and for the support, maintenance of the plaintiff
and said minor children, without any right, title, claim or interest therein by or on behalf of
the defendant; or, in lieu thereof, and within thirty days from the date hereof, the defendant
may pay to the plaintiff for said premises and said personal property, immediately
hereinbefore described, the sum of thirty thousand dollars, lawful money of the United States
of America, in which event plaintiff shall transfer said ranch and said personal property to the
defendant. And further, in which event the monies so received therefrom, or any property
which may thereafter be acquired as a result of said monies, be likewise set aside in trust as
aforesaid.
19, 20. If we concede that appellant's rights under the original decision are uncertain, we
find no such defect in the final judgment of the trial court. His rights are by that judgment
made explicit. Unless the result is that increased obligations have been imposed or his rights
under the decision impaired by the formal judgment, we think the appellant's exception to the
judgment should be overruled. We reach that conclusion despite the rule that any conflict
between the original judgment and the formal judgment must be resolved by adopting the
terms of the original. Silva v. District Court, 57 Nev. 468, 66 P.2d 422. We hasten to point
out, however, that in our opinion the terms of the original decision do not exclude the
additional provisions of the formal judgment. The latter are in fact complementary to the
original decision because if we examine the original decision it is impossible to say what
exactly the appellant was to receive for his thirty thousand dollars. It is made plain by the
formal judgment that appellant, in such an event, is to have the real property, the equipment
and the stock. We are unable to see any enlargement of appellant's burden but we perceive at
once that all doubts have been resolved in favor of appellant.
The appellant is obligated to pay thirty thousand dollars if he desires to retain the
Kallenbach Ranch. His obligation in that event is fixed and certain, and by the terms of
the judgment his rights become equally certain.
obligation in that event is fixed and certain, and by the terms of the judgment his rights
become equally certain. It is the respondent who stands to lose on this error; the formal
judgment eliminates any claim to the stock in the event appellant elects to purchase. It is also
plain that if the appellant does not exercise his option, the rights of the parties are fixed and
certain under the original judgment. In that event the respondent is to have the real property
and the equipment, together with the enumerated stock.
21. Finally, we do not think the defendant should be heard to complain as to any
uncertainty he may find in the original judgment as to whether the Kallenbach Ranch, the
equipment and stock, or, the sum of thirty thousand dollars was awarded to the respondent as
her separate property, or as a trustee for the benefit of herself and the minor children. The
appellant will not lose nor gain in any event individually. Whatever the appellant may choose
to do, his rights are now fixed and certain. He must give up the Kallenbach Ranch, the
equipment and stock, or, pay respondent thirty thousand dollars and have conveyed to him the
Kallenbach Ranch, the equipment and stock.
22. Our obligation under such circumstances is plain. We must affirm unless the error
complained of is substantial. Whenever substantial justice is done, a technical error, which
has worked no injury, will not warrant reversal. Section 8622, N.C.L. 1929. Paterson v.
Condos, 55 Nev. 260, 30 P.2d 283; Ray v. Robertson, 55 Nev. 397, 36 P.2d 76; Santino v.
Great American Insurance Co., 54 Nev. 127, 9 P.2d 1000; Hartford Mining Co. v. Home
Lumber & Coal Co., 61 Nev. 1, 107 P.2d 128, 114 P.2d 1091.
The appellant insists error of a substantial nature resulted from the trial court's division
and award of the property. It is his contention that all of the property possessed by the parties
at the date of the separation was his separate property, and had its source in the property
owned by him at the date of the marriage, save and except, of course, the one-fourth
interest in the Kallenbach Ranch owned by respondent.
and except, of course, the one-fourth interest in the Kallenbach Ranch owned by respondent.
23-25. The trial court, as we have said, reached the conclusion that there was both separate
and community property belonging to each of the respective parties, and indicated in its
opinion that it considered the Kallenbach Ranch community property. The court concluded
also that regardless of the character of the property, it could properly award to the party least
at fault a portion of the other's property. Whether or not this conclusion is justified if the trial
court's conclusion is proper on any theory, and is sustained by the findings and evidence, it is
the duty of this court to affirm. Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505. We have in
mind also the rule that the opinion of the trial court is no part of the judgment, and can only
be used to aid the court in a proper determination of the appeal. Hunter v. Sutton, 45 Nev.
430, 205 P. 785. The finding is, we have stated above, and we have also set it out above
almost word for word, the judgment of the trial court. Although it is perhaps better practice,
and the safer course in divorce actions, to make special findings as the basis of the decree,
Davis v. Davis, 54 Nev. 267, 13 P.2d 1109; Phelps v. Phelps, 2 Wash.2d 272, 97 P.2d 1080,
the appellant has not complained of that and cannot now do so, and so we now concern
ourselves with these questions. Paterson v. Condos, supra. Has the proper conclusion been
reached, and is that conclusion supported by the findings and the evidence?
We have heretofore related in some detail the facts concerning the acquisition of the
property possessed by the parties, and operated as a stock raising venture at the date of the
separation. The Kallenbach property was the first acquired by the parties, but the appellant
insists that it cannot be dealt with as a separate item as it became the headquarters and an
integral part of a system of ranches. This is perhaps true to a certain extent, but that does not
forbid determining whether it is community or separate property.
The appellant has not contended, nor do we see how he could, that the one-fourth interest
in the ranch inherited by the respondent was community property. On the other hand, we have
concluded that the three-fourths interest acquired by the appellant was his separate property.
The testimony of the appellant was that he owned at least four thousand head of sheep, one
hundred fifty head of cattle and $16,800 at the time of the marriage. Against this we have his
admission that shortly after the purchase of the Kallenbach Ranch was consummated it was
necessary for him to mortgage his sheep. Other than this we have taken into consideration his
testimony to the effect that from the date of the marriage to the date of this purchase
conditions were extremely bad in his business, and as a speculator he often did not make
expenses. If there were no profits to be made during these years, the purchase price of the
property could not have come from any other source than appellant's accumulations prior to
his marriage.
26-29. It is also probably true that for some time after 1933 the profits from appellant's
business continued to be small. But, as we say, appellant had apparently reached the limit of
his separate resources, except for his stock, and it is obvious that when in later years he began
acquiring additional ranching property he was possessed of some ready money and credit. We
can reach no other conclusion than that the appellant's capital, skill and industry as either an
operator or a speculator in the stock business contributed materially to the profits and
eventually to the capital gain. Had this increase in capital assets resulted solely from the
original investment of stock and money made by appellant, it would have remained the
appellant's separate property, but admittedly the appellant was engaged during all the years of
this marriage in either speculation or the operation of raising stock for sale. His time and skill
contributed, therefore, to the gains made, and this contribution became so intermingled with
that from his separate estate as to make a determination of the character of the gains
finally realized impossible.
estate as to make a determination of the character of the gains finally realized impossible. For
many years it has been recognized that the earnings of either a husband or a wife are
community property; it is also accepted that if the skill and efforts of either party, or both, are
essential to the profits gained from the operation or management of separate property, then in
at least a part the profits are community property. Lake v. Lake, 18 Nev. 361, 4 P. 711, 7 P.
74. There can be no doubt that the appellant's and respondent's efforts and appellant's skill
contributed materially to the profits gained. Apparently no attempt was made by him to keep
the separate and community property segregated, and that now makes it impossible to
determine what is community and what is separate property. The rule under such
circumstances is that such intermingled properties are considered community properties, and
we apprehend the basis of this rule to be that the properties have become so mixed and
intermingled that it is no longer possible to determine their source. It is the duty of the
husband, as the manager of the community property, to keep the community and separate
property segregated. Barrett v. Franke, 46 Nev. 170, 208 P. 435, deFuniak Principles of
Community Property, Vol. 1, p. 144, sec. 61, also at p. 200, sec. 77; In re Gulstine's Estate,
166 Wash. 325, 6 P.2d 628.
30, 31. Thus the evidence supports the finding that there is both community and separate
property, and while the statute supporting the trial court's theory that a court may award to the
party least at fault a portion of the other's property has been repealed, Stats. 1939, P. 20, we
do not believe in view of sec. 9463, N.C.L.Supp. 1931-1941, as amended, Stats. 1949, chap.
45, p. 54, the court was without authority to make such an award of the separate property for
the support of the respondent and the minor children; that statute provides that in granting a
divorce the court may also set apart such portion of the husband's property for the wife's
support and the support of their children as shall be deemed just and equitable.
and the support of their children as shall be deemed just and equitable. Nor, after studying all
of the circumstances, nature and extent of the property do we think that the trial court erred in
this award or any other made to the respondent.
We acknowledge the advantage to be gained by not dividing the property, and that a
division would not only destroy its effectiveness as an integrated ranching operation, but its
value as well. But as against that, the court probably weighed the respondent's need of some
income-producing property for herself and the children residing with her, and her desire to
live upon the property which had been her home and that of her family.
We do not think the price appellant is asked to pay is excessive, and in fact the purchase
price fixed by the court was the value appellant placed upon the ranch. The solution arrived at
by the court is not, therefore, unfair, and we deem it worthy of mention that this property, if
retained by respondent, or the proceeds from this property, is to be devoted to the support of
the appellant's children as well as the respondent.
While at first glance the award of eighty thousand dollars to the respondent, as her share of
the community property, may seem out of proportion, other considerations compel us to
approve that division of the community property. It was estimated by the appellant that the
net value of the entire properties was between $150,000 and $170,000. From this we must
deduct the sum of thirty thousand dollars as representing the value of the Kallenbach Ranch,
leaving a balance of $120,000 to $140,000. Thus the sum of eighty thousand dollars seems to
be more than a fair share of the community property. On the other hand the appellant
accounted for some twenty-five thousand dollars in savings, and in addition a twelve
thousand dollar note secured by mortgage, and an obligation of some fifteen hundred dollars.
Another aspect of this problem is that despite the appellant's estimate of the value of the real
and personal property used in the ranching operations, the respondent was able to show
that since 1937 the gross income was never under twenty thousand dollars, and in later
years averaged double that.
personal property used in the ranching operations, the respondent was able to show that since
1937 the gross income was never under twenty thousand dollars, and in later years averaged
double that. In view of that fact, and these additional factsfirst, that in a period of not more
than ten years, the appellant was able to acquire and pay for sizeable properties, secondly,
despite his assertion that the cost of operating the properties was almost equal to the income,
he admitted to savings amounting to twenty-five thousand dollarswe can see no error in the
division of the community property.
32, 33. In directing the appellant to pay the respondent the sum of seventy thousand
dollars, as aforesaid, the court further ordered that the payment of same be secured by a lien
upon all of the property of the appellant until paid. The appellant insists the court was without
authority to make such an order. We cannot agree, since this would in effect deny the court
jurisdiction to make such orders as are necessary to make effective the judgment of the court
considering all the circumstances of the case. This also seems to be in accord with the
generally accepted rule that where the court awards property to one spouse, and a specified
sum of money to the other, the property may be subjected to a lien to secure the amount
awarded. Harner v. Harner, 255 Mich. 515, 238 N.W. 264; Kellogg v. Kellogg, 123 Or. 639,
263 P. 385; Bailey v. Bailey, 142 Wash. 359, 253 P. 121, opinion amended, Wash., 255 P.
132; Parker v. Parker, 55 Cal.App. 458, 203 P. 420; Bailey v. Bailey, 53 N.D. 887, 207 N.W.
987; Austin v. Austin, 143 Ark. 222, 220 S.W. 46.
The appellant insists the trial court failed to consider what the consequences of the
judgment as a whole would be; he declares that the judgment will so impoverish him and
reduce his operations to such an extent that the result will be that the benefits intended for the
children and the respondent must necessarily be curtailed. More particularly and in relation to
the actual situation, it is asserted that the lien on all his property will operate to prevent his
obtaining the credit he may require from time to time, that the payments to the
respondent, together with the maintenance and support of the children, will so reduce his
income that he will be unable to pay operating costs, and he asserts, finally, that he is
placed in the impossible situation of being obliged to buy and pay for the Kallenbach
Ranch in order to keep intact the ranching operation, yet has no property to offer as
security for a loan of the necessary sum.
to prevent his obtaining the credit he may require from time to time, that the payments to the
respondent, together with the maintenance and support of the children, will so reduce his
income that he will be unable to pay operating costs, and he asserts, finally, that he is placed
in the impossible situation of being obliged to buy and pay for the Kallenbach Ranch in order
to keep intact the ranching operation, yet has no property to offer as security for a loan of the
necessary sum.
34, 35. In discussing the various awards and division of property we have already touched
upon these points. We think it necessary to amplify what we have already said by pointing out
that apparently the trial court was of the opinion that appellant's affairs are not as he described
them, and we think there is evidence to support such a conclusion. It has already been pointed
out that the fact that appellant was able to accumulate valuable units over a comparatively
short period, and at the same time acquire savings in the neighborhood of twenty-five
thousand dollars, indicates that he cannot be devoting his entire income to his operations,
even if appellant considers expansion an operating cost. Further than this, we point out that,
taking into account all sources of funds, the appellant was able in 1947 to get under his
control the sum of eighty thousand dollars, which is exactly what was awarded to the
respondent; that he has asked for, and been given the opportunity to keep his system of
ranches intact at a cost fixed by himself; that the appellant enjoys annually an average gross
income in the neighborhood of forty thousand dollars, and conceding that half of this is net
income to the appellant, it leaves him ample to pay the cost of maintaining his children and
respondent's award. We fail to agree that the trial court has impoverished appellant and
enriched respondent, nor do we think the court has sacrificed a productive and growing
business to accomplish a division of the property. Cunningham v. Cunningham, 61 Nev. 93,
116 P.2d 188. We conclude by pointing out that when circumstances are so changed that the
obligations to his children become burdensome or impossible, he may appeal to the court
for relief and show such changed circumstances.
that the obligations to his children become burdensome or impossible, he may appeal to the
court for relief and show such changed circumstances. Stats. 1947, c. 70, p. 271.
We made reference above to the award of costs made to the respondent in the district
court. The order made by the court gave to her the costs and disbursements expended in the
action, and provided further that said costs and disbursements were to include the cost of an
abstract of the assessment rolls of Churchill County, and submitted in evidence, and the cost
of procuring an abstract of the bank account of the defendant from his bank, at the court's
request.
36, 37. In Magee et al. v. Whitaker et al., 60 Nev. 202, 96 P.2d 201, 202, 106 P.2d 751,
this court said: This is an action in equity, and is clearly one in which the court is vested
with discretion in the assessment of costs, under Section 8927, N.C.L. [1929]. The intent of
this rule is that when the court is sitting as a court of equity it is not bound by the statute
fixing costs as in other cases, but may exercise its discretion. The court may, of course, abuse
such discretion in allowing costs, but we do not think the court did so in this case in allowing
the cost of preparing evidence to be offered in support of the respondent's case, nor in the
award of costs in preparing evidence requested by the court.
38. The appellant has also made some point of the fact in relation to costs, that the first
cost bill was filed after the Decision was filed, and that the other cost bill was filed after the
court had made and entered its Opinion and Decision. In view of what we have said above,
concerning the time within which a judgment becomes final, there is no error in allowing the
timely filing of a cost bill after the Opinion and Decision had been entered.
The appellant has also assigned as error a number of rulings made by the court in respect
to the admission of evidence. We have examined each of these and find no error which would
affect the appellant in a substantial right, or, which would tend to prejudice him materially.
right, or, which would tend to prejudice him materially.
39. On March 14, 1949, we allowed respondent an attorney fee of $1,000 to defend against
appellant's appeal, ordered appellant to pay respondent's accrued hotel bill in the sum of
$465.41, and further ordered appellant to pay the sum of $250 per month for the support of
respondent and the minor children in her custody. 66 Nev. 67, 203 P.2d 614. On June 6, 1949
we denied respondent's motion for allowance of additional attorney fees and terminated the
$250 monthly payments. 66 Nev. 72, 206 P.2d 753. In the former of these two orders we
referred to the allowance made by the district court of $35 per month per child for the
children in respondent's custody, which sum was provided to come out of a specific $10,000
allotment made by the district court in favor of respondent, and we also referred therein to an
order made by the district court in August, 1948, for the payment by appellant to respondent
of $500 per month and the fact that four of such $500 payments had been made, the last being
in November, 1948; and we further stated in our order that any determination as to whether
the monthly payments ordered paid by this court should be chargeable against the $10,000
item as allowed by the district court, might abide the determination of the appeal on the
merits. The allowances made by this court were ordered upon what we considered was a
sufficient showing of the respondent's necessities and appellant's ability to pay. The same
grounds must necessarily have been the basis of the orders made by the district court. The
sums made available by our present affirmance of the judgment now provide respondent with
sufficient moneys for the items allowed by both courts. Accordingly all sums heretofore paid
by appellant under the order for the payment of $35 per child per month for each child in her
custody, and under the order for the $500 monthly payments and for the sum of $212.18,
district court costs, and the $1,000 attorney fee, the $465.41 hotel bill, and the amount of the
$250 monthly payments allowed by this court, to the net aggregate extent under which
such sums were actually paid, will all be credited against the $10,000 item identified as
such in the district court's judgment.
and the amount of the $250 monthly payments allowed by this court, to the net aggregate
extent under which such sums were actually paid, will all be credited against the $10,000
item identified as such in the district court's judgment.
40. Subject to such credit, the judgment and the order denying appellant's motion for new
trial are hereby affirmed. Under the particular circumstances of this case we also feel that it is
proper that each party pay his and her own respective costs on this appeal, and it is so
ordered.
The district court ordered a stay of execution on the filing of a $20,000 supersedeas bond.
Such stay order is hereby vacated.
Eather, J., being absent because of illness, the Governor designated Hon. Taylor H. Wines,
Judge of the Fourth Judicial District, to sit in his place.
July 25, 1950.
Per Curiam:
Rehearing denied.
____________
67 Nev. 304, 304 (1950) Howard v. Waale-Camplan & Tiberti
KELLY HOWARD, D. G. MESSINGER and DEWEY H. SWEETEN, Appellants, v.
WAALE-CAMPLAN & TIBERTI, INC., Respondent.
No. 3586
April 26, 1950. 217 P.2d 872.
J. Maher Weller brought an action against Gene Austin to foreclose a mechanic's lien, and
plaintiff published the statutory notice to lien claimants, whereupon Waale-Camplan &
Tiberti, Inc., filed its statement of facts constituting its lien, joining additional defendants.
The original plaintiff, Weller, voluntarily dismissed. The Eighth Judicial District Court, Clark
County, A. S. Henderson, Judge, department No. 2, entered judgment for Waale-Camplan &
Tiberti, Inc. and defendants Howard, Messinger and Sweeten, appealed. The Supreme Court,
Badt, J., held that in absence of evidence to the contrary it was presumed that action to
foreclose mechanic's lien had been commenced before expiration date of lien.
Affirmed.
The papers relative to a motion for a new trial are properly not included in judgment roll. N.C.L.1929,
sec. 8829.
Where record gave no indication that issue as to whether plaintiff was a duly licensed contractor able to
foreclose a mechanic's lien had ever been presented to district court, supreme court refused to consider
point when presented for first time in brief on appeal. N.C.L.1931-1941 Supp., secs. 1474.31, 1474.32A.
3. Limitation of Actions.
Where alleged failure of the issuance of summons within a statutory period did not appear on face of
complaint, matter was an affirmative defense to be raised in defendant's answer, and as such burden rested
on defendant.
The plea of statute of limitations is not such a meritorious defense that either law or fact should be
strained in aid of it, nor should a court indulge in any presumptions in its favor.
Where plaintiff filed a complaint to foreclose a mechanic's lien five days before expiration date of lien,
and filed an order for publication of service upon nonresident defendants four days
before expiration date, in absence of evidence that plaintiff did not hand newspapers
the summons for publication before expiration date, the fact that first publication of
summons was four days after expiration date, did not raise a presumption that
summons had not been delivered to newspaper until that date, and therefore it was
presumed that action had commenced before expiration date.
for publication of service upon nonresident defendants four days before expiration date, in absence of
evidence that plaintiff did not hand newspapers the summons for publication before expiration date, the
fact that first publication of summons was four days after expiration date, did not raise a presumption that
summons had not been delivered to newspaper until that date, and therefore it was presumed that action
had commenced before expiration date. N.C.L.1929, secs. 3742, 3749, 8573.
Where lien claimant in a mechanic's lien foreclosure proceeding failed to file a cross appeal or a bill of
exceptions, a request to allow claimant reasonable attorney's fees under mandatory provision of lien statute,
would be denied.
George E. Franklin, Jr., of Las Vegas, for Appellants.
Leo McNamee and G. William Coulthard, both of Las Vegas, for Respondent.
OPINION
This is an appeal from a lien foreclosure judgment and decree in favor of respondent
corporation and against appellants as owners of a leasehold interest in the property. The
judgment was also against Gene Austin and Harry Siegel, sublessees, being the persons who
ordered the labor and materials, and also against J. H. Gates and Eula B. Gates, owners. As
noted, only Howard, Messinger and Sweeten appealed. The original action in the court below
was entitled J. Maher Weller v. Gene Austin, doing business as Blue Heaven which was
brought to foreclose plaintiff's lien. Plaintiff published the statutory notice to lien claimants,
whereupon Waale-Camplan & Tiberti, Inc. coming in under the published notice filed its
statement * * * of facts constituting its lien, joining as additional defendants J. H. and Eula
B. Gates as owners, also the appellants herein as lessees, and the additional defendant Harry
Siegel, joined with the original defendant Austin as sublessees.
The fictitious defendants were joined in addition. Howard, Messinger and Sweeten answered
and the corporation replied. The defendants Gates also answered, to which answer the
corporation likewise replied. The default of Austin and Siegel having been entered, the trial
proceeded against the other defendants, resulting in the lien foreclosure judgment from which
Howard, Messinger and Sweeten have appealed.
Two errors are assigned, by reason of which it is contended that the judgment must be
reversed with instructions to enter judgment in favor of appellants. It is contended, first, that
the complaint is fatally defective by reason of plaintiff's failure to allege that it was a duly
licensed contractor in accordance with the provisions of sec. 1474.31 et seq., N.C.L.
1931-1941 Supp. Secondly, appellant contends that plaintiff's action was barred because not
commenced within six months from the filing of its lien pursuant to sec. 3742, N.C.L.
The parties stipulated to waive oral argument and to submit the appeal upon the briefs, and
it was so ordered. Appellants' opening brief states: Inasmuch as this appeal is based upon the
judgment roll alone, the facts necessary for its determination are fully set forth therein * * *
Any detailed statement of facts would be merely repetitive of facts already contained in the
judgment roll. The papers constituting the judgment roll are described in sec. 8829, N.C.L.
As the defaults of defendants Austin and Siegel were entered, the judgment roll properly
included the affidavit for publication and summons and the order directing publication. The
judgment roll also included (as respondent's complaint) its statement of facts constituting its
lien, to which are annexed, as exhibits, its contract with Austin and Siegel, and also its claim
of lien as filed with the county recorder; the original answer of Howard, Messinger and
Sweeten, to which was attached as an exhibit the lease to them from Gates; also their
amended answer, filed as of course, setting up as a separate and further defense the allegation
that the action was not commenced within six months after the recording of the notice of
lien; also the reply to such answer; also the general demurrer to the complaint and the
order overruling same; also the answer of the defendants Gates and the reply thereto;
also the findings of fact, conclusions of law and judgment or decree.
six months after the recording of the notice of lien; also the reply to such answer; also the
general demurrer to the complaint and the order overruling same; also the answer of the
defendants Gates and the reply thereto; also the findings of fact, conclusions of law and
judgment or decree. No attack on the judgment roll has been made.
1. The present appeal requires no consideration of the pleadings affecting the defendants
Gates. The briefs indicate that a motion for a new trial was made and denied, but the papers
relative to the motion for new trial are properly not included in the judgment roll. Markwell v.
Gray, 50 Nev. 427, 265 P. 705; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581,
118 P.2d 702. No bill of exceptions has been filed.
We have described the nature of the record before us for the reason that both appellants
and respondent, each chiding the other for the practice, have constantly referred to and argued
matters outside of the record, including the evidence taken before the court, the proceedings
had on the motion for new trial, proceedings had with reference to a motion for judgment on
the pleadings and the presence or absence of proceedings in the trial court with reference to
whether the defense of the plaintiff's failure to allege that it was a licensed contractor was
ever presented to that court.
Appellants elected to appeal from the judgment roll and not upon a bill of exceptions. In
like manner respondent, claiming that the lower court was in error in failing to allow it
reasonable attorney fees under mandatory provisions of our lien statute, asks this court to
make an allowance of attorney fees for the prosecution of the action in the district court,
although it has filed no cross appeal nor any bill of exceptions to give this court an
opportunity to pass upon the matter. Respondent also asks for an allowance for attorney fees
in this court.
Appellants' first contention is that respondent's complaint failed to state facts sufficient to
constitute a cause of action, because it did not allege its compliance with the following
statutes:
of action, because it did not allege its compliance with the following statutes:
1474.31. License Necessary, When. 1. It shall be unlawful for any person, firm,
copartnership, corporation, association, or other organization, or any combination of any
thereof, to engage in the business or act in the capacity of a contractor within this state
without having a license therefor as herein provided, unless such person, firm, copartnership,
corporation, association, or other organization, or any combination of any thereof is exempted
as provided in this act.
1474.32A. Duly Licensed Contractor Only May Sue. 3. No person, firm,
copartnership, corporation, association or other organization, or any combination of any
thereof, engaged in the business or acting in the capacity of a contractor shall bring or
maintain any action in the courts of this state for the collection of compensation for the
performance of any act or contract for which a license is required by this act without alleging
and proving that such person, firm, copartnership, corporation, association, or other
organization, or any combination of any thereof, was a duly licensed contractor at all times
during the performance of such act or contract.
2. Respondent contends that this point is now raised for the first time on appeal.
Appellants contend that it was presented to the district court. Respondent asserts that without
objection the testimony was received to the effect that it was, at all times involved, a licensed
contractor. Appellants deny this. Both parties have gone out of the record in support of their
respective statements. The record before us gives no indication that the point was ever
presented to the district court. We recently considered a very similar situation in Leeper v.
Herz, 64 Nev. 497, 184 P.2d 1006. We refer to that opinion and re-affirm what we there said,
in full explanation of why we refuse to consider the point thus presented, for the first time, in
appellants' opening brief on appeal.
Appellants' second assignment of error is that the trial court erred in not holding that
respondent's cause of action was barred by reason of the fact that its action to foreclose the
same was not commenced within six months after the filing of the lien, pursuant to the
provisions of N.C.L. sec. 3742, which reads in part as follows: 3742. Limitation Of Lien
As To Time. 8. No lien provided for in this chapter binds any building, mining claim,
improvement, or structure for a longer period than six months after the same has been filed,
unless proceedings be commenced in a proper court within that time to enforce the same; * *
*.
Consideration must also be given to sec. 3749, N.C.L. reading in part as follows: 3749.
Action On Lien.Trial Of.Sale Of Premises.Justice Courts. 15. Said liens may be
enforced by an action in any court of competent jurisdiction, on setting out in the complaint
the particulars of the demand, with a description of the premises to be charged with the lien;
and at the time of filing the complaint and issuing the summons the plaintiff shall cause a
notice to be published * * * notifying all persons holding or claiming liens under the
provisions of this act on said premises, to be and appear before said court * * *.
Respondent filed its lien for record in the office of the county recorder of Clark County,
Nevada, September 22, 1947. Under N.C.L., sec. 3742, supra, such lien did not bind the
premises beyond March 22, 1948, unless, not later than that date, proceedings were
commenced in a proper court to enforce the same. The proceedings there referred to mean,
without doubt, the commencement of an action by the filing of a complaint to foreclose the
lien, as provided in sec. 3749. What happened was this. On March 17, 1948, pursuant to the
notice to lien claimants, published by the original plaintiff in the action, respondent filed its
statement of lien-holder corresponding in all respects to a complaint to foreclose its lien, and
which we refer to as respondent's complaint. See Mars v. McKay, 14 Cal. 127. On the same
date the complaint was served upon counsel for the original plaintiff, and on the same
date respondent filed an affidavit for publication of summons, alleging the residence of
Messinger and Sweeten as being in Salt Lake City, Utah, and the residence of Austin and
Siegel as unknown but believed to be somewhere in Texas.
same date the complaint was served upon counsel for the original plaintiff, and on the same
date respondent filed an affidavit for publication of summons, alleging the residence of
Messinger and Sweeten as being in Salt Lake City, Utah, and the residence of Austin and
Siegel as unknown but believed to be somewhere in Texas. On the following day, March 18,
1948, the court's order for service of summons on the said nonresident defendants by
publication was made and filed. Defendant Howard was personally served in Clark County on
March 19, 1948, and the defendants Gates were personally served within the county on April
19, 1948. Summons was published in a Las Vegas daily newspaper March 26, 1948, April 2,
9, 16 and 23, 1948. Summons and complaint were mailed to defendant Austin's last known
address at Dallas, Texas, April 3, 1948. Howard, Messinger and Sweeten filed their answer
March 29, 1948, and their amended answer April 2, 1948, in which they affirmatively set up
as a separate and further defense the allegation that respondent's action was not commenced
within six months after recording its lien. The defendants Gates filed a demurrer April 29,
1948, and after the overruling of such demurrer, answered on May 28, 1948, setting up the
same further and separate defense. The original plaintiff Weller voluntarily dismissed. The
default of Austin and Siegel was entered October 18, 1948.
Appellants rely upon sec. 8573, N.C.L., providing that Civil actions in the district courts
shall be commenced by the filing of a complaint with the clerk of the court, and the issuance
of a summons thereon, and upon the contention that the issuance of summons is not
accomplished until it is delivered to the sheriff or other person qualified to serve same, with
the intent that said summons be served in due course; that such intent is negatived by
respondent's affidavit for publication, showing defendants Austin and Siegel to be out of the
State of Nevada; that the lien period clearly expired as to defendants Austin and Siegel, and
that as they were in privity with appellants and were necessary parties defendant to the
action as the persons who had ordered the labor and the materials and signed the
contract, the lien period had also expired as to appellants.
with appellants and were necessary parties defendant to the action as the persons who had
ordered the labor and the materials and signed the contract, the lien period had also expired as
to appellants.
In these contentions they place their main reliance on the opinion of this court in
Woodstock v. Whitaker, 62 Nev. 224, 146 P.2d 779, 780, in which case Mr. Chief Justice Orr
said: We conclude that the word issuance' as used in Section 8573, N.C.L., means not only
the act of signing the summons and the placing of the seal thereon, but also delivery to the
sheriff or other person qualified to serve same, with the intent that said summons be served in
due course.
We decline to follow respondent's excursions out of the record in its attempt to prove that
appellants as original lessees were not in privity with Austin and Siegel as sublessees.
However, even if we concede appellants' several premises, namely, that they were in such
privity, that Austin and Siegel were necessary parties defendant, that appellants properly
pleaded the statute, and that the lien would expire as to appellants unless the action had been
commenced (as that term is defined in Woodstock v. Whitaker) within the statutory period
as against Austin and Siegel, we still are unable to say that anything in the record negatives
such commencement.
3. The commencement of the action by the filing of the complaint and the issuance of
summons, in connection with delivery thereof to the sheriff for service and the appearances,
is not controverted except as to defendants Austin and Siegel. Appellants contend that, as the
affidavit for publication of summons clearly shows the nonresidence of Austin and Siegel and
that the delivery to the sheriff could therefore not have been with the intention that he serve
those defendants, the only service possible was by publication, and that the first publication
of summons evidences the intent to serve said summons. No authority is cited to support
such assertion, and we are of the opinion that it is without justification. It would be in all
respects analogous to a contention that, for personal service within the county, something
more would be required than delivery of the papers to the sheriff with proper instructions,
in order that the summons could be deemed "issued."
that, for personal service within the county, something more would be required than delivery
of the papers to the sheriff with proper instructions, in order that the summons could be
deemed issued. The lien was subject to expiration March 22, 1948. Complaint was filed,
with affidavit for publication, March 17, and order for publication was filed March 18. The
first weekly publication of summons was March 26, but nothing in the record negatives the
fact that the summons was handed to the newspaper March 18, 19, 20, or 22. March 21 fell
on Sunday. As the alleged failure of the issuance of summons within the statutory period did
not appear on the face of the complaint, it was necessarily raised as a special and affirmative
defense in the (amended) answer. As such, the burden of its proof was upon appellants. Jones
v. Stephens, 45 Ga.App. 28, 163 S.E. 245; Barnett v. Houston, 18 Tex.Civ.App. 134, 44 S.W.
689; 54 C.J.S., Limitations of Actions, sec. 381, page 518. See also Chapman v. Mooney,
Tex.Civ.App., 257 S.W. 1106. In Woodstock v. Whitaker, supra, it is significant that the
court said * * * the fact that said summons was held by plaintiff until after the statute of
limitations had run against the action and for an unreasonable time thereafter negatives the
idea that such an intent existed as would be material here.
4, 5. While the plea of the statute of limitations is not an unconscionable defense, it is not
such a meritorious defense that either the law or the fact should be strained in aid of it, nor
should this court indulge in any presumptions in its favor. Bain v. Wallace, 167 Wash. 583,
10 P.2d 226. Though we note the distinction drawn by some of the authorities between a
strict statute of limitations and one limiting the life or duration of a mechanics' lien, we
consider the rule equally applicable. The analogy drawn by appellants to the Woodstock v.
Whitaker rule requiring delivery of the summons to the sheriff with the intent that it be served
in due course, is that it be delivered to the newspaper with the intent that it be published in
due course. If the delivery to the sheriff with such intent completed the "issuance" of the
summons {despite the fact that it might not have been served until a week or a month
later), so the delivery to the newspaper with such intent would complete the issuance
{despite the fact that the publication did not commence until a week or a month
later)no statutory prohibition of such course appearing.
the sheriff with such intent completed the issuance of the summons (despite the fact that it
might not have been served until a week or a month later), so the delivery to the newspaper
with such intent would complete the issuance (despite the fact that the publication did not
commence until a week or a month later)no statutory prohibition of such course appearing.
As a proof of personal service by the sheriff on March 26 would not of itself justify us (in
support of an affirmative plea of limitations) in indulging the presumption that it had not been
delivered to him till that date, so proof of first publication of summons on March 26 will not
of itself justify us in indulging the presumption that the summons had not been delivered to
the newspaper for publication till that date. If instead of an asserted presumption there was
something in the way of proof, it could be presented to us only by way of a bill of exceptions.
And if there had been such proof the appellants would have been entitled to a finding. The
record does not disclose that any finding on the subject was requested.
As early as 1873, this court in Skyrme v. Occidental Mill & Mining Co., 8 Nev. 219,
emphasized the intention of the legislature, through the mechanics' lien statute, to protect
material men, contractors and laborers, to avoid unfriendly strictness and mere technicality,
to do substantial justice to all parties, and to give the lien claimants the benefits they are
entitled to under the law, by a fair and liberal construction of the statute. The intervening 77
years have found many expressions of legislative intent and judicial interpretation in this
state, all to the purport that the beneficent effect of remedial legislation of this nature should
not be lightly defeated by highly technical attack.
We have examined the numerous authorities cited by appellants. They are all in support of
appellants' minor premises which, in view of the conclusions reached, we are willing to
accept for the sake of argument. Hence these authorities do not require discussion.
On the record now before us we must hold that neither of appellants' assignments of
error has merit, and that the judgment must be affirmed with costs.
of appellants' assignments of error has merit, and that the judgment must be affirmed with
costs.
It is so ordered.
6. Respondent's request for allowance of attorney fees for services in the district court and
for services on this appeal is denied.
____________
67 Nev. 314, 314 (1950) Blouin v. Blouin
JANETTE R. BLOUIN, Appellant and Defendant, v.
EMILE B. BLOUIN, Jr., Respondent and Plaintiff.
No. 3553
May 12, 1950. 218 P.2d 937.
Action by Janette R. Blouin against Emile B. Blouin, Jr., for divorce. The First Judicial
District Court, Ormsby County, Clark J. Guild, Judge, entered judgment for plaintiff, and
defendant appealed. The Supreme Court, Badt, J., held that amended complaint, alleging that
plaintiff for statutory six weeks had been and was an actual and bona fide resident of county
in which he filed suit, was sufficient.
Judgment affirmed.
1. Divorce.
In considering residence requirement for divorce cases, the terms actual, physical, and corporeal
are synonymous and may be used interchangeably in a petition. N.C.L.1931-1941 Supp., sec. 9460.
2. Divorce.
In divorce action, complaint alleging that plaintiff for the statutory six weeks' period has been and now
is an actual and bona fide resident of the county of Churchill, State of Nevada, and said county has been
plaintiff's domicile during all of said time, was sufficient. N.C.L.1931-1941 Supp., sec. 9460;
N.C.L.1929, sec. 6405.
Supreme Court would not consider additional assignments of error raised for first time in appellant's
closing brief. N.C.L.1931-1941 Supp., sec. 9385.93.
Clarence M. Hawkins, of Auburn, California, and George E. McKernon, of Reno, for
Appellant.
Frank B. Gregory and W. E. Baldy, both of Carson City, for Respondent.
OPINION
This appeal raises the sole question of the necessity of including in the plaintiff's allegation
of residence in a divorce complaint the statement that the plaintiff has been actually,
physically and corporeally present within the state for the necessary period. The particular
question grows out of the fact that in the instant case the plaintiff's amended complaint
alleged that plaintiff, for the statutory six weeks period, has been and now is an actual and
bona fide resident of the County of Churchill, State of Nevada, and said county has been
plaintiff's domicile during all of said time.
Section 9460, N.C.L., Vol. 2, 1931-1941 Supp., provides in part: Divorce from the bonds
of matrimony may be obtained by complaint, under oath, to the district court of any county in
which the cause therefor shall have accrued, or in which the defendant shall reside or be
found, or in which the plaintiff shall reside, or in which the parties last cohabited, or if
plaintiff shall have resided six weeks in the state before suit be brought, for the following
causes, or any other causes provided by law: * * *.
The statutory definition of legal residence is found in sec. 6405, N.C.L.1929, and reads in
part as follows: The legal residence of a person with reference to his or her right of suffrage,
eligibility to office, right of naturalization, right to maintain or defend any suit at law or in
equity, or any other right dependent on residence, is that place where he or she shall have
been actually, physically and corporeally present within the state or county, as the case
may be, during all of the period for which residence is claimed by him or her * *."
actually, physically and corporeally present within the state or county, as the case may be,
during all of the period for which residence is claimed by him or her * *.
Appellant contends that under this statute physical and corporeal presence within the state
is a necessary, essential, ultimate fact to be pleaded. In support of this contention appellant
cites: Presson v. Presson, 38 Nev. 203, 205, 147 P. 1081; Lewis v. Lewis, 50 Nev. 419, 264
P. 981, 267 P. 399; Fleming v. Fleming, 36 Nev. 135, 142, 134 P. 445; Tiedemann v.
Tiedemann, 36 Nev. 494, 495-498, 137 P. 824; Lamb v. Lamb, 57 Nev. 421, 65 P.2d 872.
1, 2. An examination of the opinions in those cases indicates conclusively that the words
actual, physical, corporeal and bodily are deemed by this court to be synonymous
terms. In the Fleming case the court emphasizes the necessity for actual residence a number
of times and treats it as synonymous with physical presence. The court then refers to the
contemplation of the statute as requiring actual residence; that is, physical corporeal
presence. [36 Nev. 135, 134 P. 447.] The wording of the opinion in the Fleming case is
quoted in the Tiedemann case. The Fleming case and the Tiedemann case are both discussed
in the Presson case, which however was mainly devoted to the consideration of the bona fides
of the residence, including the animus manendi. In the Lewis case the court first couples the
words physically and corporeally present, although elsewhere quoting the statutory words
actually, physically and corporeally present. The court then says that the purpose of the act,
now N.C.L., sec. 6405, was to compel an actual, * * * corporeal presence. Later in the
opinion the necessity of corporeal presence is likewise used in its reference to the Presson
case. In the Lamb case it was stated that proof of plaintiff's physical presence for the
statutory period was necessary. The court also approved an instruction to the jury which
required proof that the plaintiff had been actually, physically and corporeally present in the
state for the statutory period, and referred again to the plaintiff's "required corporeal
presence" and also to the "period of physical presence" required.
and referred again to the plaintiff's required corporeal presence and also to the period of
physical presence required.
It is clear that this court has consistently used the terms actual, physical and
corporeal interchangeably and as of synonymous meaning in its consideration of residence
requirement for divorce cases. A reference to the standard dictionaries confirms the
correctness of this view. An etymological study of the words (actual and corporeal
coming to us directly from the Latin, physical from the Greek through the Latin, and
bodily from the Anglo Saxon) serves only to strengthen this view. But an exposition of
such study, interesting though it might be, is unnecessary in the light of the synonymous use
of the terms as consistently made by this court. Counsel for respondent drolly suggest that,
except for the emphasis added by the use of the synonyms, sec. 6405, requiring actual
physical and corporeal presence to constitute residence in the state, might as well have
defined the place where the plaintiff shall have been bodily, bodily and bodily present, etc.
We are more than half inclined to agree.
By reason of orders heretofore made by this court striking numerous documents from the
record as not embodied in a settled bill of exceptions, 66 Nev. 137, 206 P.2d 608, the appeal
is before us on the judgment roll alone and is restricted to the point discussed. Perhaps
unfortunately, the merits of the appeal cannot be reached. Final submission of the appeal has
been subject to many delays, reluctantly consented to by respondent. The oral argument for
final submission of the case on May 9 was set by order of this court on the calling of its
regular calendar on April 3, 1950, and counsel for all parties notified. Without notice of any
kind either to opposing counsel or to this court, counsel for appellant failed to appear for oral
argument and, after listening to respondent, the court ordered the appeal submitted.
3. Appellant's closing brief raises for the first time an additional assignment of error. This
we have declined to consider. Section 9385.93, N.C.L., vol. 2, 1931-1941 Supp., requires the
appellant, in his opening brief, to state his points and such errors as he shall rely on.
Supp., requires the appellant, in his opening brief, to state his points and such errors as he
shall rely on. The record also discloses that on September 20, 1948, appellant, following a
procedure not contained in our present statutes, filed an assignment of errors. This
document contained sixteen separate assignments, none of which called the attention of the
court to the particular point raised in appellant's closing brief.
Finding no error in any matter properly presented to this court for determination, the
judgment must be affirmed with costs, and it is so ordered.
____________
67 Nev. 318, 318 (1950) McCormick v. District Court
JEAN MULLANEY MCCORMICK, DONNIE BUSEY and CLAYTON E. GUNN,
Petitioners, v. THE SIXTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Humboldt and MERWYN H. BROWN, Judge of
Said Court, Respondents.
No. 3612
May 15, 1950. 218 P.2d 939.
Original proceeding by Jean Mullaney McCormick, Donnie Busey and Clayton E. Gunn
for a writ of prohibition against The Sixth Judicial District Court of the State of Nevada, in
and for the County of Humboldt and Merwyn H. Brown, Judge of said court to prohibit judge
from proceeding in contempt proceedings. The Supreme Court, Badt, J., held that an
information and belief verification alleging that a decree had been entered adjudicating
various water rights in petitioners' predecessors was sufficient to invoke jurisdiction of trial
court and that inability of petitioners to comply with court decree by reason of interest of
United States was a matter of defense, but that writ would issue prohibiting judge who
issued order from presiding at trial of contempt proceedings.
a matter of defense, but that writ would issue prohibiting judge who issued order from
presiding at trial of contempt proceedings.
Order accordingly.
1. Contempt.
Where suit was begun in 1907 to establish water rights of various appropriators on river system, and
decree was entered in 1919, changes in ownership were understandable, and contempt petition for violation
of decree containing information and belief verification of allegations setting forth history of suit and rights
granted to each of parties thereto, was sufficient. N.C.L.1929, sec. 8943.
2. Contempt.
Where contemners have voluntarily or contumaciously brought on themselves disability to obey order or
decree, defense that contemners would be unable to obey order without fault on their part is not available.
3. Prohibition.
Where contemners were ordered by court to remove dam from its location, but contemners failed to obey
decree, in proceeding to prohibit contempt proceeding, evidence failed to establish that dam was built by
alleged contemners and the United States pursuant to an agreement entered into between them, and
contemners failed to establish that they could not obey order of court unless they destroyed property of the
United States.
4. Contempt.
In contempt proceeding, burden of proving inability to comply with terms of decree is upon contemners.
5. Contempt.
Statute providing that in all cases of contempt arising without immediate view and presence of court,
judge of court in whose contempt defendant is alleged to be, shall not preside at such trial over objection of
defendant, is constitutional. N.C.L.1929, sec. 8943.
6. Prohibition.
Where contempt petition was sufficient under circumstances and record to give district court jurisdiction,
and question of inability to comply with court order by reason of interest of United States was a matter of
defense, writ of prohibition would issue prohibiting judge who issued order from presiding at trial of
contempt proceedings. N.C.L.1929. sec. 8943.
Sidney W. Robinson and John C. Bartlett, both of Reno, for Petitioners.
Sanford A. Bunce, of Lovelock, and J. D. Skeen, of Salt Lake City, Utah, for Respondents.
OPINION
Petitioners seek to prohibit the respondent district court and the respondent presiding judge
thereof from proceeding with the hearing initiated by Bessie L. Ellison, Lyle L. Ellison,
Claude Larkin Ellison and Melba E. Ellison as the successors in interest of Ellison Ranching
Co., a corporation, to hold the petitioners in contempt if they persist in violating a decree of
said court adjudicating the water rights of Quinn River and of McDermitt Creek, one of its
tributaries.
Petitioners assert three reasons in support of their contention that respondents are without
jurisdiction to proceed: (1) because of the filing of the statutory affidavit and objection under
the second proviso of sec. 8943, N.C.L.1929; (2) because the necessary parties are not before
the court; and (3) because the contempt charges are not brought upon an affidavit but upon a
petition verified only on information and belief.
On the hearing of the return of the alternative writ of prohibition counsel for the Ellisons
appeared on behalf of the respondent court and judge and submitted a motion to quash upon
the ground that the proviso contained in sec. 8943, N.C.L.1929 disqualifying the judge of the
district court from presiding over the trial for an indirect or constructive contempt of a decree
of the court applied only in cases where such judge had himself rendered the decree in
question. They also contend that all necessary parties were before the court and that the
verification of the contempt petition on information and belief satisfied the statute.
The hearing on the return of the alternative writ and the hearing on the motion to quash
were consolidated and presented and submitted to this court at the same time. Before
proceeding to a discussion of the points involved a brief history of the case as reflected
from the files and opinions of this court will be in order.
involved a brief history of the case as reflected from the files and opinions of this court will
be in order.
The litigation was initiated in 1907 by a suit in equity seeking to establish and quiet title to
the water rights of sundry appropriators on the Quinn River system. Additional parties were
joined and sundry defendants affirmatively pleaded their rights as cross-complainants and the
litigation, although a suit in equity, resolved itself into a general adjudication of the respective
and relative rights of the water users on the system. On April 19, 1919, Hon. E. J. L. Taber,
later the chief justice of this court, but then presiding district judge of the Fourth judicial
district court in and for Elko County, presided over the action in what was then part of the
Second judicial district court in and for Humboldt County and rendered the final decree of
that court adjudicating the rights of the various users with great particularity, specifying the
priority and the amount of water in cubic feet per second appropriated by each party, the
stream and tributary from which each appropriation was made, the place of appropriation, the
number of acres irrigated, etc.; the title of each party was quieted as to the rights adjudicated
and appropriate injunctive clauses against interference were included. Thereafter the matter
came before this court on four occasions. The present proceeding is the fifth.
In 1921 the case came before this court on a motion to dismiss the appeal from the
judgment and from the order denying new trial. We denied the motion to dismiss for the
reason that the questions involved required a careful examination of the record and a
consideration incidentally of the merits of the appeal, and it was ordered that the motion to
dismiss stand over to be heard and determined upon the presentation of the appeal on its
merits. Pacific Live Stock Co. v. Ellison Ranching Co., 45 Nev. 1, 192 P. 262. This was
under the file number 2448 in this court. Mr. Justice Sanders wrote the opinion. Mr. Justice
Ducker did not participate.
In 1923, under No. 2579, entitled Pacific Live Stock Co. v. Ellison Ranching Co.; Legarza
v. Hart, district judge, 46 Nev. 351, 213 P. 700, certiorari was sought to review a judgment
holding the petitioners guilty of contempt. District Judge Orr wrote the opinion for this court,
Chief Justice Ducker being disqualified. The petitioners, being the contemners below, had
demanded a jury trial under the statutethe contempt not being in the presence of the court.
The district judge had denied a jury trial, holding the statute to be unconstitutional. This court
agreed and dismissed the proceedings in certiorari.
The matter was next before this court in 1930 under Nos. 2448 and 2449 in 52 Nev. 279,
286 P. 120. The appeal was on the merits and the court again considered and referred to the
prior motion to dismiss. The main ground of this was that of the forty or fifty parties to the
suit only a few had been served with the notice of appeal. Appellants claimed that the ones
not served were in no sense adverse. This court held however that respective and relative
rights of all of the parties were involved and that this court had no jurisdiction of the appeal
on account of failure to make service of the notice of appeal on all adverse parties. The order
was not only for the dismissal of the appeal but also for the affirmance of the order denying
appellants' motion for new trial, as the notice of intention to move for a new trial had likewise
not been served on many of the parties not deemed by movants to be adverse. (No. 2449
concerned an order permitting amendment of answers after submission. These answers
contained additional allegations as to the tributary character of a number of additional creeks
as tributaries of the Quinn River.) Sanders, J., wrote the opinion.
In 1931 in Pacific Live Stock Co. v. Malone, 53 Nev. 118, 294 P. 538, in an opinion
written by Moran, district judge, this court denied mandamus which was sought by the Pacific
Live Stock Co. to compel the state engineer to administer the distribution of the waters of
Quinn River in accordance with the decree.
River in accordance with the decree. Mandamus was sought on the ground that it was the
statutory duty of the state engineer to administer and distribute the water in accordance with
the 1919 decree. The court however held that the state engineer's duties under the statute
arose only as a result of a decree in a general adjudication proceeding, whereas this was an
equity suit.
By sec. 46 1/2 of the water law, Statutes 1947, c. 159, p. 519, the legislature provided for
the making of an order by a district court, on petition, that the state engineer make a
hydrographic survey and distribute the water on any stream system on which the rights of all
water users have been determined otherwise than (the statute reads than otherwise)
provided in sections 18-51 of the water law, Laws 1913, c. 140. This act of 1947 adding
section 46 1/2 to the water law was enacted apparently for the purpose of abrogating the
objection found in Pacific Live Stock Co. v. Malone, supra, to the administration of the
decree by the state engineer.
The record under No. 2448 remains in the files of the clerk of this court. The transcript
consumes some 7,000 typewritten pages and the file contains numerous exhibits including
maps picturing the entire stream system (with the exception of those parts existing in the
State of Oregon), the various dams, ditches, and canals and the irrigated lands of the several
parties.
1. We turn first to the sufficiency of the verification of the contempt petition to confer
jurisdiction on the respondent court. The petitioners in this court rely upon the provisions of
section 8943, N.C.L.1929, reading in part as follows: When the contempt is not committed
in the immediate view and presence of the court or judge at chambers, an affidavit shall be
presented to the court or judge of the facts constituting the contempt * * *.
Petitioners frankly concede that a duly verified petition for an order to show cause in
contempt would be equivalent to the affidavit mentioned in the foregoing section, and cite a
number of authorities holding that in view of the criminal or quasi-criminal nature of the
proceedings a petition verified only upon information and belief, without even reciting the
nature of the information or the facts upon which the belief is based, is so lacking as to be
halted by prohibition.
view of the criminal or quasi-criminal nature of the proceedings a petition verified only upon
information and belief, without even reciting the nature of the information or the facts upon
which the belief is based, is so lacking as to be halted by prohibition. Cases cited by
respondents call attention to the fact that the statute contains no provisions requiring a
verification by an affiant knowing the facts of his own knowledge, and hold that an affidavit
or petition verified on information and belief is sufficient to invoke the jurisdiction of the
court. The cases are not harmonious, and we do not find it necessary, for the purposes of this
case, under the facts appearing in our own opinions and records, to adopt either rule as
controlling in this jurisdiction. See Creekmore v. United States 10 Cir., 237 F. 743, L.R.A.
1917C, 845. And the same matters thus appearing to this court, likewise appear to the
respondent district court, both from its own files and from the various remittiturs sent down
from this court. The petition to the district court for an order to show cause in contempt,
verified on information and belief, alleges as facts: The entry of the decree of 1919; the
adjudication therein of various water rights to the predecessor of the petitioners showing
dates of priorities (the earliest being 1874), the number of cubic feet per second awarded for
each separate appropriation (aggregating 37.84 cubic feet from Quinn River), the source, the
number of irrigable acres, and description in legal subdivisions; the dependence of the lands
on the waters of McDermitt Creek as contributing the larger part of the flow of Quinn River.
A positive verification would add nothing to the strength of these allegations. There is then an
allegation of certain successorship in the lands and water rights owned. The very title of the
case indicates numerous substitutions of parties in place of their respective predecessors in
interest. When we remember that the litigation was initiated in 1907, the decree entered in
1919, and the petition filed in 1950, changes in ownership are readily understandable. An
information and belief verification of such an allegation is all that could reasonably be
expected.
of such an allegation is all that could reasonably be expected.
The contempt petition then alleges the construction in 1943, of a rock and concrete dam
across the channel of McDermitt Creek, by the alleged contemners and the United States
government, pursuant to an agreement entered into between them in 1939. To divert the flow
of a river which in time of high water must carry many times the flow of 38 cubic feet of
water per second
1
allotted to Ellison Ranching Co., this must be a structure for all to
seeunless it is simply a figment of the imagination. If the latter should be the case, of
course the whole contempt proceeding fails. The precise location of the dam is stated as at a
point 7073.70 feet south 54 31' west from the corner common to sections 3, 4, 9, and 10,
Township 47 North, Range 37 East, M.D.M. We are unwilling to adapt to this case a rule
which, doing justice to nothing but its own rationale, will require a new proceeding, initiated
by a new contempt petition in which an affiant will state positively rather than on information
and belief, that the dam is there. The additional allegation that such rock and concrete dam
across the channel of McDermitt prevents the water from flowing down to serve the priorities
of the successors of Ellison Ranching Co. is self-evident and would not be strengthened by a
positive verification. The final allegations that the acts of the alleged contemners were willful
and that they threaten to continue the same are purely formal and, in the last analysis, mean as
much when stated on information and belief as if stated positively.
In view of the foregoing analysis of the situation it cannot be said that the contempt
petition, although verified only on information and belief, was insufficient to invoke the
jurisdiction of the district court.
____________________

1
This amount of water would necessarily be based on the theory of a continuous flow throughout the
irrigation season, which would serve not only the Ellison priorities, but many others. Such continuous flow does
not exist on this stream system, and the amounts of water allotted to the several priorities (measured in acre-feet)
would have to be made up in the period of flood flow, or high flow or flash flow.
invoke the jurisdiction of the district court. Bridges v. Superior Court, 14 Cal. 2d 464, 94
P.2d 983; In re Simoniello 6 Cal.App.2d 425, 44 P.2d 402.
2-4. The next contention of the present petitioners, the alleged contemners below, is stated
as follows: It is undisputed that the United States has an interest in the maintenance of the
dam and assisted in the construction of the dam in question. The basic relief sought in the
proceeding before the trial court is the removal of the dam from its present location. It seems
clear that the request for a punishment by way of contempt is purely incidental to the removal
of the dam * * * Any order made by the trial court and directed to petitioners herein to
remove the dam would require petitioners to destroy property of the United States or be in
contempt of court. In other words, as this is a civil or perhaps quasi-criminal contempt,
coercive in its purpose, the inability of the contemners to obey the order (without fault on
their part) would be a complete defense and sufficient to purge them of the contempt charged.
But in connection with this well-recognized defense two comments are necessary. Where the
contemners have voluntarily or contumaciously brought on themselves the disability to obey
the order or decree, such defense is not available. Chesapeake & O. Ry. Co. v. Burke's
Adm'x, 299 Ky. 851, 187 S.W.2d 295. See Anno. 22 A.L.R. 1256; Going v. Going, 148 Tenn.
522, 256 S.W. 890, 31 A.L.R. 649; Wohlfort v. Wohlfort, 116 Kan. 154, 225 P. 746, 40
A.L.R. 546; Heflinger v. Heflinger, 172 Ga. 889, 159 S.E. 242, 76 A.L.R. 390. And the
burden of proving inability to comply is upon contemners. Rappaport v. Superior Court, 39
Cal.App.2d 15, 102 P.2d 526; 12 Am.Jur. 438, Contempt, sec. 72, 17 C.J.S., Contempt, sec.
19, p. 24. We are not satisfied that inability to comply affirmatively appears from the
allegation in the contempt petition that the dam was built by the alleged contemners and the
United States in 1943 pursuant to an agreement entered into between them in 1939. We know
nothing of the terms of that agreement.
We know nothing of what transpired since the decree of 1919 except what has been presented
to this court in the four prior proceedings above described. Nor can we say at this time what
significance there is in the caption of the district court pleadings indicating that Carson
Indian Agency, Bureau of Indian Affairs, Department of the Interior, United States
Government and others were made parties by an order dated January 10, 1949. It is
essentially the province of the respondent court to pass upon these things, all involving as
they appear to do, the question of the ability or inability of the alleged contemners to comply.
We therefore hold this assignment to be without merit.
We have felt it necessary to rule upon the foregoing two points for the guidance of the
respondent court when the case is remanded for further proceedings. As to such two points
and as to the asserted ambiguity of the contempt petition, the action of the district court in
overruling the demurrers and denying the motions to strike is approved.
The third ground relied upon in support of the petition for writ of prohibition applies not to
the respondent district court, but to the respondent district judge as the judge of said court.
This grows out of the refusal of the learned district judge to honor the objection of the alleged
contemners to his presiding over the contempt trial, which objection was made under the
provisions of sec. 8943, N.C.L.1929. The section first provides for punishment for a direct
contempt and then reads as follows: * * * When the contempt is not committed in the
immediate view and presence of the court or judge at chambers, an affidavit shall be
presented to the court or judge of the facts constituting the contempt, or a statement of the
facts by the referees or arbitrators; provided, that in all cases of contempt arising without the
immediate view and presence of the court the person charged with contempt may demand and
have a jury trial; and provided further, that in all cases of contempt arising without the
immediate view and presence of the court, the judge of such court in whose contempt the
defendant is alleged to be shall not preside at such trial over the objection of the
defendant."
court, the judge of such court in whose contempt the defendant is alleged to be shall not
preside at such trial over the objection of the defendant.
The first proviso, allowing a jury trial in cases of an indirect contempt, was held by this
court to be unconstitutional in Pacific Live Stock Co. v. Ellison R. Co. (Legarza v. Hart,
District Judge) 46 Nev. 351, 213 P. 700. It is contended by the respondent district judge that
it was clearly the intention of the legislature to disqualify, upon objection, only the district
judge who made the decree. We do not have the learned trial judge's opinion in the record,
but it was stated during the course of the oral argument that such was his reason for
overruling the objection to his presiding. If the language of the proviso were ambiguous there
might be room for interpretation or construction. It is, however, clear and unambiguous. The
judge of the court in whose contempt the defendant is alleged to be is, upon objection,
precluded from presiding in the trial of the contempt charge. If such disqualification was
within the constitutional limitation of the powers of the legislature, this court has no right to
eliminate from the sphere of its application everything but a distinct, and perhaps small,
portion thereof. We are not impressed by the argument that the holding in the Legarza case
that the first proviso is unconstitutional necessarily carried the second proviso with it. This
contention is based upon the assertion that the prohibition of the judge's presiding at such
trial can refer only to the jury trial mentioned in the first proviso. We are of the opinion that
the trial referred to is the trial of the contempt charge. The two provisos sought to provide
two distinct and separate shields against a possible prejudiced attack. One was by the right to
demand a jury trial. This we struck down in the Legarza case. The other is the
disqualification, on objection, of the judge of the particular court. For the same reason we
reject the contention that the second proviso is so dependent upon, and so confined to the
language immediately preceding it and not properly severable," that it must fall with the
first proviso under the rule enunciated in State ex rel.
severable, that it must fall with the first proviso under the rule enunciated in State ex rel.
Clover Valley Lumber Co. v. Sixth Judicial District Court, 58 Nev. 456, 467, 83 P.2d 1031,
1035.
It is now contended by the respondents that this second proviso (if given the meaning
which we hold it clearly expresses) is likewise void as an attempted interference with the
inherent power of the court to enforce its orders and decrees by contempt proceedings. It is
our opinion that such contention is without merit, bearing in mind the full and exclusive
authority of the legislature in all matters of legislation so long as it does not transgress the
bounds of some constitutional limitations.
Respondents, in attacking the constitutionality of the second proviso, rely upon the
reasoning contained in Pacific Live Stock Co. v. Ellison, 46 Nev. 351, 213 P. 700; Phillips v.
Welch, 12 Nev. 158; State ex rel. Malone v. District Court, 52 Nev. 270, 286 P. 418, and In
Re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. We are in full accord with these cases,
and with the many authorities therein cited, all proclaiming in ringing tones the inherent
power of the courts to protect and defend their decrees by contempt proceedings, beyond any
power of the legislature to abridge. But the basis of the opinion in Pacific Live Stock v.
Ellison was that the legislature in providing for a jury trial, took the matter out of the hands of
the court and placed it in a tribunal separate and distinct from the court. [46 Nev. 351, 213
P. 702.] This was likewise the reasoning of the Supreme Court of Virginia in Carter v.
Commonwealth, 96 Va. 791, 32 S.E. 780, 45 L.R.A. 310, there quoted at length by Judge Orr,
but the right of the legislature to regulate the exercise of the power to punish for contempt
was frankly conceded. In Smith v. Speed, 11 Okl. 95, 66 P. 511, 55 L.R.A. 402, also quoted
by Judge Orr emphasis was again placed on the legislative attempt to turn over * * * to a
separate tribunal the right to punish for contempt. And the statement of the court relied upon
in Phillips v. Welch was that no other court except the one rendering the decree could
punish for contempt.
in Phillips v. Welch was that no other court except the one rendering the decree could punish
for contempt. Likewise in Mr. Justice Brewer's opinion in the famous Debs case, vigorously
upholding the inherent power of a court to punish for contempt and to make its own inquiry
as to whether there had been any disobedience of its orders, what was condemned was the
claim of right to submit the question of disobedience to another tribunal, be it a jury or
another court * *. [158 U.S. 564, 15 S.Ct. 910.] The second proviso of sec. 8943,
N.C.L.1929 creates no such situation. Under its provisions the identical court whose decree is
claimed to have been violated hears and determines the contempt charge. It is not ousted of
its jurisdiction. There is no transfer to a different tribunal. Only the judge of that court
becomes disqualified when the proper objection is made. Disqualification of judges, under
the regulatory power of the legislature, is by no means new to our statutes. Under the first
subdivision of sec. 8407, N.C.L. 1931-1941 Supp., a judge may not act as such in any action
or proceeding when he is interested therein; under the second subdivision, when he is related
to a party within the third degree of consanguinity or affinity; under the third subdivision,
when he has been attorney for either of the parties in the particular proceeding; under the
fourth subdivision, when he is related within the third degree of consanguinity or affinity to
an attorney for either side. Under the fifth subdivision (when reading as amended by Stats.
1931, p. 247, c. 153) a district judge was required to transfer to another department of the
court, or to request the judge of some other district court to preside at the trial of any civil
action if a party, his attorney or agent filed an affidavit that he believed or had cause to
believe that on account of the bias or prejudice or interest of said judge he could not obtain a
fair and impartial trial. The amendment was upheld by this court in State ex rel. Beach v.
Fifth Judicial District Court, 53 Nev. 444, 5 P.2d 535. A further amendment of the fifth
subdivision enacted by Stats.
1937, p. 214, c. 117, providing for a change of judge on the mere request of a party was held
by this court to be unconstitutional in State ex rel. Clover Valley Lumber Co. v. Sixth Judicial
District Court, 58 Nev. 456, 83 P.2d 1031, leaving the 1931 amendment in effect. As
amended by Stats.1939, p. 255, c. 173, the judge is required to transfer the trial of a civil
action to another department of the court or to call in a judge of another district court, if either
party file an affidavit alleging that the judge has a bias or prejudice against him or in favor
of the opposite party. The act contains certain safeguards against abuse, but, requiring no
statement of any facts of bias or prejudice, and permitting of no trial or finding as to any bias
or prejudice or as to any facts in the premises, did not differ, as to material effect, from the
1931 amendment.
We have felt the foregoing recital to be necessary to indicate that the legislature in proper
exercise of its regulatory powers, has indicated a number of situations in which, in place of
proof of actual bias or prejudice, there is implicit in the very situation the possibility of the
suspicion of bias or prejudice. The legislature has thus declared the public policy of the state,
not so much for the protection of an individual litigant, as for the preservation of the respect
and high regard the public has always maintained for the courts. Courts, says Belt, J.,
speaking for the Oregon Supreme Court in U'Ren v. Bagley, 118 Or. 77, 245 P. 1074, 1075,
46 A.L.R. 1173, like Caesar's wife, must be not only virtuous but above suspicion.
5. And, borrowing further from that opinion and the cases therein cited, it should be
emphasized that the courts must be free from reproach or the suspicion of unfairness. Next
in importance to the duty of rendering a righteous judgment is that of doing it in such a
manner as will beget no suspicion of the fairness and integrity of the judge. And so the
legislature of this state felt it important to eliminate the possibility of a reasonable
apprehension that a judge might not be entirely free from bias in enforcing the orders and
decrees of the court of which he is the judge.
from bias in enforcing the orders and decrees of the court of which he is the judge. In thus
providing that in all cases of contempt arising without the immediate view and presence of
the court, the judge of such court in whose contempt the defendant is alleged to be shall not
preside at such trial over the objection of the defendant, we are unable to say that any of the
constitutional or inherent powers of the court may have been abridged.
6. As we have found the contempt petition sufficient under the circumstances and under
the record to give the district court jurisdiction, and as we have found that the question of
inability to comply by reason of the interest of the United States is a matter of defense on the
part of the alleged contemners (petitioners herein), the writ of prohibition against the
respondent Sixth judicial district court must be denied and the alternative writ against that
respondent vacated. But as it was the mandatory duty of the respondent Honorable Merwyn
H. Brown, judge of said court, not to preside at the trial of the contempt charges over the
objection made under the second proviso of sec. 8943, N.C.L., the writ must issue against
such respondent judge, prohibiting him from presiding at the trial of said contempt
proceeding.
It is so ordered. The parties will bear their own respective costs.
____________
67 Nev. 333, 333 (1950) Masini v. Quilici
L. MASINI, Appellant, v. ANGELO QUILICI and
LOUISE QUILICI, Respondents.
No. 3588
May 26, 1950. 218 P.2d 946.
L. Masini sued Angelo Quilici and Louise Quilici for damages suffered by plaintiff as
result of defendants' inability to convey realty as defendants contracted to do, because of
refusal of court on defendants' petition to order sale of interest in the realty owned by the
incompetent ward of defendant Louise Quilici. The First Judicial District Court, Lyon
County, Wm. D. Hatton, Presiding Judge, rendered a judgment adverse to plaintiff and
plaintiff appealed. The Supreme Court, Horsey, C. J., held that impossibility of performance
resulted from defendants' wrongful action and was therefore fraudulent.
Judgment and order denying plaintiff's motion for a new trial reversed and new trial
ordered.
Fraud.
In action for damages suffered by plaintiff as result of defendants' inability to convey realty as defendants
contracted to do, because of refusal of court on defendants' petition to order sale of interest in the realty
owned by incompetent ward of one defendant, evidence established that defendants determined
fraudulently and in bad faith to sabotage the agreement, and that impossibility of performance resulted
from defendants' wrongful action and was therefore fraudulent.
Andrew L. Haight, of Fallon, and Leslie A. Leggett, of Reno, for Appellant.
John R. Ross, of Carson City, for Respondents.
OPINION
The appellant, L. Masini, has appealed to this court from the judgment made and entered
by the First judicial district court of the State of Nevada, in and for the county of Lyon, on
the 4th day of May, 1949, and from the order denying appellant's motion for a new trial.
county of Lyon, on the 4th day of May, 1949, and from the order denying appellant's motion
for a new trial.
Some of the essential facts, concerning which there is no controversy, may be stated, in
effect, from the evidence, as follows:
In the latter part of October and the first part of November, 1945, the respondents, Angelo
Quilici and Louise Quilici, who were husband and wife, decided to sell what was, and is,
known as the Quilici Ranch, located about one mile south of the city of Yerington, county of
Lyon, State of Nevada. Soon thereafter, the respondents inserted an advertisement in a
newspaper, the Reno Evening Gazette, offering to sell said ranch. The appellant, Masini, and
the respondents, the Quilicis, had known each other for a long time, and on one occasion,
after such advertisement had been inserted in such newspaper, Louise Quilici, upon making a
trip to Hawthorne, Nevada, visited Masini's store; there she delivered some chickens, and
upon that occasion Masini mentioned that he was much interested in land and ranch property
and their values. Shortly thereafter, Angelo Quilici told L. Masini that respondents would be
willing to sell their said ranch.
The appellant, on the 22d day of November, 1945, visited the respondents at the said
Quilici Ranch. While at the ranch, appellant personally inspected the said ranch during that
morning, and they discussed the terms of sale. Masini made an inventory of all the crops,
tools, equipment, improvements and other personal property located and situated upon the
said ranch. They discussed the price, Masini suggesting $35,000, and Angelo Quilici insisting
upon $40,000. And, finally, an oral agreement for the sum of $40,000 was mutually
determined upon and tentatively accepted, to be followed by the drafting of a written
agreement. Mr. F. H. Koehler, an attorney at Yerington, Nevada, was requested to perform
such service. It is not certain whether Masini alone, after such oral agreement at the ranch,
first contacted Mr. Koehler, requesting him to act, later that same day, or whether both
Angelo Quilici and Masini came to Mr.
same day, or whether both Angelo Quilici and Masini came to Mr. Koehler's office; but, in
any event, later on that afternoon Masini, Angelo Quilici and Louise Quilici all came to Mr.
Koehler. All the parties executed the written agreement in the said attorney's residence that
afternoon, about, or shortly after, 4 p. m., on said November 22, 1945, the actual drafting
being by Mr. Koehler. The testimony does not disclose definitely whether it was understood
Mr. Koehler was acting as attorney for Masini or for all of the parties, which is probably
immaterial. It was indicated by all the parties that the agreement was to be held by Mr.
Koehler and deposited, the next morning, at the bank at Yerington, Nevada. The written
agreement above mentioned was as follows:
Memorandum of Agreement.
1. L. Masini buyer
2. Angelo Quilici & Louise Quilici, sellers
3. Buyer agrees to buy and sellers to sell 200 acres of land more or less owned by them
and located about one mile south of Yerington, Nevada plus all cattle, machinery, crops,
buildings, pigs, chickens, hay, grain, potatoes, turkeys and all other farm crops, materials and
supplies on the ranch on this date, estimated to be
73 head of cattle 70head of hogs
300 ton of hay 100 turkeys
50 ton of spuds 125 chickens
1 truck Chev. 600 sacks of barley
1 tractor case 1 power mower
1 hay-bailer 3 or 4 plows
8 horses 1 side delivery rake
grain drill 2 horse mowers
Misc. small tools and household goods.
4. Sellers retain personal belongings, wine, canned goods, piano, blankets, Willis
property stored in attic, 3 or 4 rocking chairs and 4 or 5 other chairs.
5. Full purchase price $40,000.00 payable $5,000.00 upon execution of this agreement
and $35,000.00 upon transfer of good title to buyer.
6. Title insurance at buyers cost.
7. Deeds, stamps, bill of sale at sellers cost.
8. FH Koehler is hereby authorized to order title search and insurance, make deeds, and
bill of sale and procure revenue stamps.
9. Taxes to be prorated as of today. Insurance on place goes with deal.
10. All water and ditch rights included in property sold.
Dated November 22, 1945 Louise Quilici
Angelo Quilici
WitnessF. H. Koehler L. Masini
The agreement discloses that the buyer was L. Masini, and the sellers were Angelo Quilici
and Louise Quilici. It is recited, in paragraph 3 of the agreement, that: Buyer agrees to buy
and sellers to sell 200 acres of land more or less owned by them, (that is, in effect, by the
Quilicis), and, referring to the testimony of L. Masini, there was no reference or mention
made by any of the said parties at the time of the execution of the agreement, or prior thereto,
as to the fact that Mary Scossa, an incompetent sister of Louise Quilici, owned an interest in
said ranch. (Italics ours.) Masini's testimony, at one point, was clear to the effect that he was
perspiring, and that as soon as the agreement had been signed, he, Masini, went out on the
porch at the Koehler residence, and, after a few minutes, he returned, and that he then and
there casually overheard a conversation between Louise Quilici and Koehler, and in which
she said, in effect, that she, Louise Quilici, was trustee for said Mary Scossa, and that she
could sell the property, and that this was the first intimation the appellant had received that
the respondents did not own the property; that Masini did not hear Louise Quilici say
anything at that time in regard to it being necessary to have any approval of the court in order
to sell, as guardian, Mary Scossa's one-half interest in the ranch. Such statement of Masini is
supported, it is believed, by certain of the statements of Louise Quilici in the respondents'
answer and cross-complaint, filed June 22, 1946, which she verified, and in which she
stated, in paragraph IV of respondents' separate, second and distinct defense, the
following: "That on the 14th day of December, 1945, the defendant, Louise Quilici, as
guardian of the person and estate of Mary Scossa, an incompetent person, first learning
that she could not sell and convey the undivided interest of her ward in and to the real
property referred to in the agreement of sale, filed her petition in the above entitled Court
praying for an order to sell all of the right, title and interest of the said Mary Scossa in the
real and personal property referred to in the agreement of sale."
statements of Louise Quilici in the respondents' answer and cross-complaint, filed June 22,
1946, which she verified, and in which she stated, in paragraph IV of respondents' separate,
second and distinct defense, the following: That on the 14th day of December, 1945, the
defendant, Louise Quilici, as guardian of the person and estate of Mary Scossa, an
incompetent person, first learning that she could not sell and convey the undivided interest of
her ward in and to the real property referred to in the agreement of sale, filed her petition in
the above entitled Court praying for an order to sell all of the right, title and interest of the
said Mary Scossa in the real and personal property referred to in the agreement of sale.
(Italics ours.)
We are mentioning that important statement on the part of Louise Quilici in order to bring
out clearly that, if she was then truthful in her testimony, she first learned on December 14,
1945, that as guardian she, by her own action, could not sell such interest, and, therefore, it
became necessary for her, in the above-mentioned petition, to petition for an order to sell all
of the right, title and interest of the said Mary Scossa.
Furthermore, none of Louise Quilici's allegations in her answer and cross-complaint state
more than to indicate or contend, in effect, that because she fully believed she had the right to
sell such interest, as guardian, there was no occasion for her to inform Masini before the
agreement was executed, on November 22, 1945, that approval of the court was essential,
and, in fact, she could not have done so, not knowing it herself until December 14, 1945, at
which time she first learned of same. There is no statement, therefore, at all alleging in said
answer and cross-complaint that the other respondent, Angelo Quilici, was informed, on
November 22, 1945, or at any time prior to the time when such petition to sell the interest of
Mary Scossa was filed, December 14, 1945, that Louise Quilici was required to obtain from
the court an order to approve the sale as such guardian in the matter of the guardianship of
Mary Scossa.
such guardian in the matter of the guardianship of Mary Scossa.
And, as we view the theory of the respondents' allegations in their answer and
cross-complaint, they had no intention or thought at that time of contending otherwise than
set forth, generally, therein to the effect that Louise Quilici was not informed prior to
December 14, 1945, as to approval of the court being necessary, or it may be said, she was
ignorant or mistaken in law or fact, or both, as to such matter, and that, being surprised and
first learning of such requirement, she promptly thereafter proceeded to obtain such order to
sell such incompetent sister's interest. By such further allegation in said above-mentioned
paragraph IV it was alleged, however, that for the reasons set forth in the last sentence of said
last-mentioned paragraph: That after said petition was duly noticed the same was heard on
the 30th day of January, 1946, at which time the Court entered its order denying to the
guardian, Louise Quilici, one of the defendants herein, the authority to sell the interest of the
incompetent in the real and personal property to the plaintiff.
As to that subject, and particularly the allegations contained in the Petition for authority
to sell ward's estate and for order of sale, and the alleged statements or reasons whereby such
petition was denied (same being Order denying petition for sale of real property, filed
February 13, 1946), same will be further referred to and discussed in this opinion, in relation
to the question of the good faith or the bad faith and fraud of the respondents as to the alleged
guardianship proceedings and the result thereof. But as to the present reference or mention in
relation to respondents' answer and cross-complaint and the facts alleged therein and the
theories presented, we apprehend that the gist and substance of respondents' contentions may
be summarized as follows:
1. Louise Quilici failed to inform said Masini at the time of or prior to the execution of the
agreement, November 22, 1945, that the sale of Mary Scossa's interest must be sanctioned
and approved by the court, because she only learned {as stated in the answer and
cross-complaint) of same long subsequent to that date, and not until December 14, 1945,
and that, therefore, she was perhaps mistaken in believing that she could act alone and
make the sale, but that such failure on her part thus to disclose such fact was not
intentional, and, hence, she should, in equity, be excused, upon the basis of her
misconception or mistake of fact or law, or both, there being no fraudulent
misrepresentation in that respect.
interest must be sanctioned and approved by the court, because she only learned (as stated in
the answer and cross-complaint) of same long subsequent to that date, and not until
December 14, 1945, and that, therefore, she was perhaps mistaken in believing that she could
act alone and make the sale, but that such failure on her part thus to disclose such fact was not
intentional, and, hence, she should, in equity, be excused, upon the basis of her
misconception or mistake of fact or law, or both, there being no fraudulent misrepresentation
in that respect.
2. That, there being no actual or constructive fraud, respondents should be excused by
reason of the fact that upon the petition for order to sell Mary Scossa's interest the proper
statements were presented by respondents or their attorney, but due to reasons and causes
inherent in the situation, the court declined to order such sale, were justified in so doing, and
that, without any misrepresentation on the part of the respondents, the carrying through of
such sale became, was, and is, impossible.
3. And, based upon such alleged inability of performance, and upon the denial of such
order to sell, the respondents, on February 13, 1946, were entitled to consider the agreement
at an end, and, upon returning to the appellant, Masini, the sum of $4,000 ($5,000 paid by
Masini to the Quilicis upon the purchase price, less $1,000, which as to certain hay, had been
paid back to Masini, leaving a net of $4,000), and its receipt by Masini, that respondents were
entitled to have the agreement rescinded.
In that connection, it appears that on February 7, 1946, a letter was written, registered and
mailed in the United States post office at Carson City, Nevada, by John R. Ross, Esq.,
attorney for respondents (plaintiff's exhibit A in case No. 3274 in the First judicial district
court of the State of Nevada, in and for Lyon County), said letter being incorporated in this
opinion, and being in words and figures as follows: "John R.
John R. Ross
Attorney at Law
Sweetland Building
Carson City, Nevada
February 7, 1946
Registered Return Receipt Requested.
Lawrence Masini
Hawthorne, Nevada
Re: Quilici-Masini
Dear Lawrence:
Enclosed herewith find check dated January 30th, drawn to your favor by Louise Quilici
in the amount of $4,000.00. This is repayment to you of the deposit you made with Louise on
November 22, 1945. The deposit was in the amount of $5,000.00, but I understand that you
have already received $1,000.00.
You are informed that inasmuch as the agreement of November 22nd was predicated
upon the proposition that the property was to be sold in its entirety, which can not be done by
reason of the Court refusing to permit the sale of the incompetent's undivided one-half
interest on the basis of your offer, Louise Quilici considers the agreement of no legal force or
effect.
Yours sincerely
/s/ John R. Ross
John R. Ross
JRR/m
encl 1
The letter to Masini by John R. Ross, Esq., discloses that the inclosed check was intended
as a repayment, in the amount of $4,000, to the appellant, Masini, of the part payment of
$5,000 to respondent Louise Quilici, on November 22, 1945, by Masini, upon the execution
of the agreement of that date (the respondents' understanding being that the $4,000 check,
instead of a check of $5,000, was because of the fact that $1,000 had been repaid to Masini by
the Quilicis in regard to the transaction as to certain hay), and which agreement, according to
said letter, Louise Quilici considered of no legal force or effect.
ing to said letter, Louise Quilici considered of no legal force or effect.
Suffice it to say that it appears from the testimony that the Quilicis tendered the said
$4,000 check, by means of the said letter from Mr. Ross to Masini, but that the return of such
sum was refused by Masini, and by him returned to the Quilicis, due to the contention of said
appellant that such return to Masini would have operated to make effective the unlawful
alleged repudiation by the respondents of their agreement.
In further consideration of the allegations of respondents' answer and cross-complaint, and
particularly referring to paragraph VI of same, the allegations of said paragraph VI are as
follows: Defendants admit all of paragraph VI of the complaint, except that they specifically
deny that they did fraudulently and in bad faith then and there suppress and conceal from the
plaintiff the fact that they were not the owners of the entire interest in the real estate and that
the said Mary Scossa owned an interest therein.' In this connection defendants believed that
they, and particularly the defendant Louise Quilici, could sell and convey the undivided
interest and estate of the incompetent, Mary Scossa, under her general powers as guardian of
the person and estate of the incompetent, being required only to thereafter report her action to
the Court and to pay over and into the estate of the incompetent one-half of the purchase price
of the real and personal property referred to in the agreement of sale.
The meaning and effect of said allegations make clear that, in denying the statement
embraced therein in which the appellant, in his complaint, had stated that respondents did
fraudulently and in bad faith then and there suppress and conceal from the plaintiff the fact
that they were not the owners of the entire interest in the real estate and that the said Mary
Scossa owned an interest therein, the respondents made such denial in the form and effect
that would negative same as an entire allegation, containing the two essential propositions
included in the clause, that, {1) there was suppression and concealment to the effect that
they were not the owners of the entire interest, and, {2) that they did so {suppress and
conceal same) fraudulently.
entire allegation, containing the two essential propositions included in the clause, that, (1)
there was suppression and concealment to the effect that they were not the owners of the
entire interest, and, (2) that they did so (suppress and conceal same) fraudulently. Obviously,
the respondents were fully conversant with the effect of pleading negative allegations in such
a manner. Such a form of allegation is, in pleading, considered elementary. The reason of
such form of allegation, therefore, was clearly apparent, as shown by the second sentence of
said paragraph VI, namely: In this connection defendants believe that they, and particularly
the defendant Louise Quilici, could sell and convey the undivided interest and estate of the
incompetent, Mary Scossa, under her general powers as guardian of the person and estate of
the incompetent, being required only to thereafter report her action to the Court and to pay
over and into the estate of the incompetent one-half of the purchase price of the real and
personal property referred to in the agreement of sale.
From the facts and circumstances shown in the pleadings, it has been contended
repeatedly, particularly by Louise Quilici, that she, Louise Quilici, fully believed that she
could convey the one-half interest of her sister in the real estate, and that on first learning she
could not do so, she, therefore, petitioned for a sale, as guardian of Mary Scossa,
necessitating the approval of the court.
As hereinbefore stated, she alleged in said second sentence of paragraph VI, in effect, that
she should be excused because of her misconception or mistake; that, in effect, she impliedly,
if not expressly, conceded such mistaken viewpoint, and that, therefore, of course, as she
contended, she failed to disclose a situation of which she was actually unaware until she first
learned differently, and that then, upon first learning what was required, that is, that the
approval of the court was necessary, she promptly proceeded accordingly. Necessarily, in
order to show good faith, she was, therefore, impelled to rely, in effect, upon her
misconception or mistake, as her excuse therefor.
excuse therefor. Same is in the nature of confession and avoidance, that is, that she did not
disclose Mary Scossa's interest because she believed it unnecessary. Relying upon her
contention in that regard, it could not well have been otherwise. Hence in said answer of
respondents they alleged defendants believed that they * * *. That is to say, she thus
suppressed and concealed, but did so honestly, in failing to disclose such necessity of
disclosing Mary Scossa's interest. The respondent, Louise Quilici, thus, by denying the two
propositions as a single negative, admitted the suppressing and concealment, which, under
the facts, she could not well or truly deny, but did deny the other of the negative propositions,
namely, that she did so fraudulently and in bad faith. This allegation in said paragraph VI of
the answer and cross-complaint remains respondents' contention. In respondents' Separate,
Second and Distinct Defense Defendants Allege, and in paragraph III thereof, the said
defendants (respondents) again reiterated such belief on her part to the effect that she believed
that, under her general powers as guardian of the person and estate of Mary Scossa, an
incompetent person, she could contract for the sale of and sell and convey all of the undivided
interest of her ward in and to the real and personal property referred to in the agreement of
sale. The defendants believing such to be the law and the fact, entered into said agreement of
sale with the plaintiff.
We should bear in mind that it was not on November 22, 1945, upon which date the
agreement was executed, but was on the later date, namely, December 14, 1945, upon which
Louise Quilici first learned that she could not sell and convey such interest of her ward. The
important dates involved are significant. In each and all of the remaining Separate and
Distinct Defenses of respondents, the basic conception and theory of respondents was, and
continued to be, that Louise Quilici, not having the slightest idea at the time of the execution
of the agreement, November 22, 1945, that she was required to do other than to convey the
said interest as the guardian of her incompetent sister, she continued so to believe until
the said petition in the matter of the guardianship, petitioning for authority to make such
sale, was, or was about to be, formulated, presumably by reason of the advice of her
attorney, John R.
to do other than to convey the said interest as the guardian of her incompetent sister, she
continued so to believe until the said petition in the matter of the guardianship, petitioning for
authority to make such sale, was, or was about to be, formulated, presumably by reason of the
advice of her attorney, John R. Ross, Esq. It was that petition, as above stated, and which
Louise Quilici verified and filed on December 14, 1945, and the conversation and discussion
which occurred, presumably, between Mrs. Louise Quilici and Mr. Ross, which served to
apprise or inform her that, in effect, she had been under the misconception that she, as such
guardian of Mary Scossa's said interest in said property, could sell and convey same, but she
thus had ascertained that, instead, it would be, and had then become, and was necessary that
she present such petition and such proceedings as were essential and proper. As hereinbefore
set forth, she stated in her said answer and cross-complaint, June 20, 1946, filed June 22,
1946, exactly seven months after the conversation in connection with the preparation and
execution of the agreement at Mr. Koehler's residence on November 22, 1945, and has
repeatedly alleged, the same theory and conception of fact.
The several defenses of the answer and cross-complaint were largely affirmative defenses,
and, in their nature, were by way of confession and avoidance. Such defenses, which
commence with the first thereof and include the second, third, fourth and fifth of such
separate and distinct defenses, did not depart from or change such original theory as alleged
in paragraph VI of the first defense. The substance of the pleading was, consistently, that
Louise Quilici did not conceive that she was required to seek approval of the court to make
the sale, that it had not even occurred to her, because she had the belief in her mind that, as
guardian, she could herself make the sale and convey the interest to Masini, and that, so
believing, she did not conceive any reason or need to mention the matter to him. Her
testimony, adduced by her thereafter at the trial, as shown by volume II of the bill of
exceptions, did not occur until April 2S, 194S, about two years and five months after the
conversation and execution of the agreement, November 22, 1945, and one year and
about ten months after the date the answer and cross-complaint was filed, namely, June
22, 1946.
bill of exceptions, did not occur until April 28, 1948, about two years and five months after
the conversation and execution of the agreement, November 22, 1945, and one year and about
ten months after the date the answer and cross-complaint was filed, namely, June 22, 1946.
Masini, in his earlier testimony at the trial, on February 2, 1948, and in his further
testimony on April 28, 1948, had stated that he did not recollect or remember that in her
conversation Louise Quilici had made any statement to the effect that Mary Scossa had or
owned any interest in the ranch, but during the recess, on April 28, in refreshing his memory,
he recalled, in substance and effect, that on November 22, 1945, after the agreement had been
signed and he had gone out on the porch, and had returned, that he then overheard her say, in
the conversation between Mr. Koehler and Mrs. Quilici, that her sister, Mary Scossa, had an
interest in the ranch. In cross-examination, Mr. Ross definitely questioned Masini upon that
point, and Masini admitted he had formerly said that Mrs. Quilici had not mentioned the fact
that Mary Scossa had an interest in the ranch, but Masini then admitted that he had
remembered, after thinking the matter over, that she had so stated. Masini, in his testimony,
stated and reiterated, both in direct and cross-examination, that he had not at any time heard
Mrs. Quilici state, before the agreement or at any prior time, at the ranch, that Mary Scossa
owned any interest therein; but the only mention she had made in regard to such fact was the
one statement above mentioned, which was after the agreement was signed. Masini
emphatically stated in his testimony that neither Louise Quilici nor Angelo Quilici nor Joseph
Bednar had stated anything to that effect at the ranch prior to the trip to Koehler's residence.
Masini also stated that neither Louise Quilici nor Angelo Quilici stated anything on that day,
in the presence of Koehler or at all, indicating or to the effect that any court proceeding or
approval was or would be required to sell or convey Mary Scossa's interest, the only reference
at all as to the interest of Mary Scossa being the mention made by Louise Quilici that her
sister, Mary Scossa, owned an interest in the ranch, as above mentioned.
as to the interest of Mary Scossa being the mention made by Louise Quilici that her sister,
Mary Scossa, owned an interest in the ranch, as above mentioned. The fact as testified to at
the trial by Masini was, in effect, the same as that which he overheard on that afternoon of
November 22, 1945, which, if correctly stated by Louise Quilici, was in accord with the
factual situation as alleged repeatedly in the statements of fact and the theory expressed in the
allegations of the answer and cross-complaint. This is stated without emphasizing the precise
time when Louise Quilici then and there stated such fact to Mr. Koehler, either before or after
the agreement was signed. This court is not so much concerned as to whether that statement
was made by Louise Quilici and overheard by Masini on that occasion, before or after the
signing of the agreement. The agreement was in the hands of Mr. Koehler, probably by the
sanction of both parties without regard to whether or not Koehler was technically to be
considered as attorney for Masini or for both parties. Doubtless, the execution of the
agreement, and also its delivery, it is believed, may probably have been deemed uncompleted
in accordance with the implied, or even the express, intention of the parties. This is presumed
to be so in view of the fact that such a transaction should be considered as finally completed
and delivered in accordance with the reasonably expressed or implied intention of the parties,
and until the negotiations thereon could reasonably be considered terminated, the delivery
should be deemed tentative only, and subject to be countermanded or recalled, or further
revised or modified.
The question, however, in view, particularly, of the pleadings and the answer and
cross-complaint, is as to whether or not Louise Quilici, in view of the allegations of her
answer to the effect that on or about December 14, 1945, she first learned that she could not
sell or convey the interest of Mary Scossa, but had theretofore believed she could, as
guardian, sell and convey the same, and, in view of her entire ignorance of the fact that she
could not do so she had no reason to conceive it necessary to consider taking steps in
such guardianship proceeding to obtain the approval of the court of such sale, she,
nevertheless, did, in her testimony at the trial, on April 2S, 194S, testify, in effect, that in
discussing the matter with Koehler in the presence of Masini {who, as she testified, was
sitting on the Chesterfield in the room, and within hearing distance), that she first learned
of the necessity of the approval, during the afternoon of November 22, 1945.
could not do so she had no reason to conceive it necessary to consider taking steps in such
guardianship proceeding to obtain the approval of the court of such sale, she, nevertheless,
did, in her testimony at the trial, on April 28, 1948, testify, in effect, that in discussing the
matter with Koehler in the presence of Masini (who, as she testified, was sitting on the
Chesterfield in the room, and within hearing distance), that she first learned of the necessity
of the approval, during the afternoon of November 22, 1945. If she had ascertained same
November 22, 1945, in discussing the matter with Mr. Koehler and when Masini was present,
she certainly could not truthfully have said, in her verified answer seven months later, June
22, 1946, that she first learned of same on or about December 14, 1945, which was about
three weeks after November 22, 1945. Mrs. Quilici, in connection with her verified answer
and in her testimony has, in effect, placed herself in the unenviable position of indulging in
highly contradictory and inconsistent statements, and which could not both be true. It appears
imperative that we present herein a few of the many statements which are contained in the
transcript of the testimony. Some of these are also incorporated on pages 41 and 42 of
Appellant's Opening Brief on Appeal, and are as follows:
* * * I said, Now, my sister owns half of this ranch here. I don't own it all and it has to
go through court because she is an incompetent. I was appointed her guardian.' And Mr.
Koehler, then he explained us the procedure, which I was surprised. I didn't know we had to
have the appraisers to appraise the value of the property and a lot of other things; that it had
to be published in the paper; that it would take such a long time to make this sale go through.
At that time I didn't know a thing about it until Mr. Koehler explained it to us. (Italics by
appellant's counsel.) (Transcript of testimony, vol. II, p. 261, lines 3-12.)
Louise Quilici, in another portion of her testimony (see appellant's opening brief, p. 42),
testified as follows: Q.
Q. What was your belief at that time as to your right to sell the undivided one-half interest
of Mary Scossa?
* * * * *
A. I thought I had the authority to sell Mary's
my sister's property because I was appointed her guardian and I thought that the Court
wouldn't turn it down either; that I was just capable of doing it.
Mr. Ross: (Q.) You felt that by virtue of your appointment as guardian you had the
unqualified right to sell or dispose of the incompetent's share of the estate? A. Yes.
Q. When did you learn that such was not truth? A. November the 22nd, 1945 at Koehler's
house.
Q. In Koehler's house? A. Yes. (Italics by appellant's counsel.) (Transcript of testimony,
vol. II, p. 265, lines 22-30, and p. 266, lines 1-8.)
We have not undertaken here to detail this evidence further, but have carefully read all of
same, including the testimony of respondent, Angelo Quilici, and of the witness Joseph
Bednar.
It is sufficient to state that if the testimony of Angelo Quilici had been as stated by him, to
the effect that at the ranch during the morning of November 22, 1945, Louise Quilici stated to
Masini, in Angelo's presence, that it has to be approved by the court before it can be sold,
she certainly would have known about it, in order for her to have so stated. But she alleged in
her verified answer that she first learned of it on or about December 14, 1945. If prior to
December 14, 1945, she did not know it was necessary to petition for approval of the sale, she
could not, of course, have informed Angelo Quilici of that which she did not know herself,
namely, that it has to be approved by the court before it can be sold. And it is very
improbable that Angelo Quilici knew what she swore in her answer, that she did not know, or
that he would have ascertained and testified to such fact. Bednar's testimony, in which he
stated, in effect, that she made such statement at the ranch in the morning of November 22,
1945, in view of the allegations of the answer as to her lack of any such knowledge or any
such conception also is most improbable.
morning of November 22, 1945, in view of the allegations of the answer as to her lack of any
such knowledge or any such conception also is most improbable.
District Judge Hatton, in his carefully written opinion filed November 20, 1948, in case
No. 3274, in the First judicial district court of the State of Nevada, in and for the county of
Lyon, among other statements made therein, stated, commencing on page 37, line 23, vol. I of
the bill of exceptions, the following:
On Thanksgiving Day, November 22nd, 1945, the plaintiff visited the defendants at the
said ranch property and made them an offer of $35,000.00 for the real and personal property.
After some discussion, the price demanded by the defendants, of $40,000.00, was agreed
upon. The defendants testified that, during the said discussion they informed the plaintiff that
Mary Scossa owned a half interest in the ranch and that the sale of her interest would have to
receive the approval of the Court in the guardianship proceeding. The testimony of the
defendants was corroborated, on its face, by the testimony of Joseph Bednar, who testified
that he was engaged in plumbing work in the bathroom adjoining the kitchen and overheard a
portion of the conversation. Later, on the same day, the plaintiff and the defendant Angelo
Quilici went to the office of Franklin Koehler, a practicing attorney at law, in Yerington,
where Mr. Koehler prepared, in his handwriting the agreement referred to. In the afternoon of
that day, the plaintiff and the defendants went to the residence of Mr. Koehler where a
conversation was had between them and Mr. Koehler relative to the agreement, and the same
was signed by the three parties. The defendants testified that, before the signing of the
agreement, and in the conversation mentioned, the plaintiff was again informed as to the
interest of Mary Scossa and that the sale would require the approval of the Court. The
plaintiff, on the other hand, testified that, on the occasion mentioned and after the signing of
the agreement, Mrs. Quilici stated that she was a trustee for Mary Scossa and that she, Mrs.
and that she, Mrs. Quilici, could sell the property, and that this statement was the first
information he received relative to the interest of Mary Scossa. The agreement was made in
November, 1945, and this suit was commenced in June, 1946.
As impeaching the testimony of the defendants and Bednar, the plaintiff directs attention
to certain allegations in the defendants' answer and cross-complaint. At page 3, in paragraph
VI, defendants allege that, at the time of making the agreement, they believed Mrs. Quilici
could convey the interest of Mary Scossa, being only required thereafter to report to the Court
and pay over to the estate of her sister one-half of the purchase price. This allegation, in
substance, is repeated in paragraph II, page 4, in paragraph II, page 6 and in paragraph IV,
page 8. In paragraph IV, page 5, it is alleged that on December 14th, 1945, she first learned
that, as such guardian, she had no authority to convey her sister's interest except on approval
of the Court. In paragraph II, page 6, it is alleged that the plaintiff assumed and believed that
the entire title to the Scossa ranch was vested in the defendants. These allegations are all in
conflict with the testimony of the defendants that, prior to entering into the agreement, the
plaintiff was informed as to the interest of Mary Scossa and the necessity for Court approval
on the sale of her interest.
The affirmative defenses set up by the defendants involve a different theory from that on
which they presented their defense on the trial. At the trial, their testimony was directed to an
attempt to establish an oral condition precedent, namely, that it was understood and agreed
that the sale contract should not be effective until it had been approved by the Court. This
latter affirmative defense was not pleaded. The allegations of the verified answer and
cross-complaint are so at variance with the testimony given by the defendants at the trial as to
leave no basis for the supposed condition precedent. Under the condition of the pleadings, it
may be doubted if a finding of such a condition could be made even if the proofs justified
it."
be doubted if a finding of such a condition could be made even if the proofs justified it.
The plain and very apparent contradictions and inconsistencies appearing clearly before us
in our consideration of the sworn allegations of fact in the answer of respondents, as
compared to many of the statements of the respondents appearing in the record, impel us to
state what seems to us to be, to say the least, a far departure from the essentials of honesty
and truthfulness. We can do no less than has Judge Hatton in that we are unable to attach
credence to the testimony of the respondents, in so far as the statements of fact contained in
the testimony are not supported by any facts or circumstances existent in the answer or
cross-complaint of the respondents.
We subscribe wholeheartedly to all that the learned district judge has stated in his opinion,
commencing on page 37 of volume I of the record on appeal, at line 23, to and including line
30 of said page 37, also page 38 in its entirety, and, also, page 39, line 1 to and including line
23. Such original opinion not being a part of the record on appeal in this court, we refer, also,
to the pages and lines of the original opinion as they appear in the file in the said district
court, same being No. 3274.
Immediately following the last sentence of the portion of Judge Hatton's opinion to which
reference is hereby made, the learned jurist has stated: There is left, for the Court to
consider, the issue of fraud raised by the allegations of the complaint and the denials of the
answer, and the Court therefore has examined the evidence to see if, notwithstanding the
contradictions between the defendants' pleading and their testimony, the plaintiff has
established the allegation of fraud. (Italics ours.)
We agree with Judge Hatton's statement just above quoted in that respect, and shall, in our
present opinion, disregard all of the above-mentioned inconsistent and contradictory
statements referred to by him, and shall consider further, and confine ourselves solely and
exclusively to, matters alleged in the complaint and the denials of the answer and
cross-complaint merely leaving for our consideration the issue of fraud.
consider further, and confine ourselves solely and exclusively to, matters alleged in the
complaint and the denials of the answer and cross-complaint merely leaving for our
consideration the issue of fraud.
Referring again to respondents' answer, paragraph VI, we have hereinbefore pointed out
what we have characterized as a negative pregnant. In other words, respondents, as we now
interpret same in accordance with properly pleading the allegations of said paragraph VI, they
have, in effect, alleged that the respondents did, impliedly, * * * suppress and conceal from
the plaintiff the fact that they were not the owners of the entire interest in the real estate and
that the said Mary Scossa owned an interest therein, but that they have denied specifically
that they did so fraudulently and in bad faith. Under certain circumstances, we might feel
inclined, perhaps, to characterize the term suppression and concealment to mean that the
literal meaning of same might be mitigated or ameliorated in its severity and harshness to the
extent that no conscious or intentional concealment was intended. By way of attempting, in
equity at least, to mitigate or excuse the alleged suppression and concealment, the
respondents, and particularly the respondent, Louise Quilici, in said paragraph VI, have stated
that they believed that the defendant Louise Quilici, could sell and convey the undivided
interest and estate of the incompetent, Mary Scossa, under her general powers as guardian of
the person and estate of the incompetent, being required only to thereafter report her action to
the Court and to pay over and into the estate of the incompetent one-half of the purchase price
of the real and personal property referred to in the agreement of sale.
In view, however, of all of the matters which appear in the record, and particularly the
facts and circumstances which we shall hereafter discuss, in relation to the respondents'
Petition for Authority to Sell Ward's Estate and for Order of Sale, and the Order Denying
Petition for Sale of Real Property, we feel impelled seriously to analyze and carefully
consider whether or not there was intentional concealment and suppression that should
be deemed actually and intentionally fraudulent, or that there was only constructive
fraud, or whether there was any fraud or bad faith at all.
seriously to analyze and carefully consider whether or not there was intentional concealment
and suppression that should be deemed actually and intentionally fraudulent, or that there was
only constructive fraud, or whether there was any fraud or bad faith at all.
On the second page of his opinion (Bill of Exceptions, vol. I, p. 34), Judge Hatton has
stated: The defendants, in their answer, deny and place in issue all of the allegations of the
complaint relative to fraud and bad faith. They set up, as separate and distinct defenses,
impossibility to convey the property to plaintiff, mutual mistake of the parties and
nonexistence of the subject matter of the agreement. For a fifth and distinct defense and by
way of cross-complaint, they allege a unilateral mistake of the defendants respecting their
power to convey, upon which they seek the cancellation of the agreement. The Court has
concluded that neither of these affirmative defenses, nor the cross-complaint, has been
established by the proofs. While impossibility to convey is shown, such impossibility,
standing alone, would not, as I view it, constitute a defense to plaintiff's claim. (Italics ours.)
It may be mentioned that mutual mistake as pleaded in the respondents' Separate,
Second and Distinct Defense is entirely untenable. Masini was not informed, at the time of
the transaction, November 22, 1945, that there was any serious doubt but that Louise Quilici,
as she represented at the Koehler residence immediately subsequent to signing the agreement,
would be enabled to convey the Mary Scossa interest. Certainly, in view of her representation
at that time, she fully believed that she would be able to do so.
Even as to unilateral mistake, it is seriously questionable whether Louise Quilici had any
reasonable right to believe that she, merely by her own action, would have the right to sell
and convey her sister's one-half interest in the property. She must have known for about ten
years, or at least had some idea, as guardian, that important proceedings must be authorized
and sanctioned in such guardianship proceedings, and must be approved by the district
court.
such guardianship proceedings, and must be approved by the district court. She, doubtless,
knew that, since she commenced the guardianship proceedings back in 1936 and participated
therein, all necessary papers and proceedings which had been filed, considered and action
taken thereon had been approved by the court. Having even as much experience as she had in
connection with Mary Scossa's interest, it would appear that she must have realized that an
important sale such as the conveyance of property, particularly real estate, would require her
attorney's services. It is incredible to believe that she did not entertain some degree of
realization that, before completing such an agreement as the transaction with Masini, she
should have sought the advice and counsel of her attorney, who had theretofore acted for her
in other matters. Persons, very generally, understand and realize that they are required, for
their own best interests in such matters, to seek counsel. This is accentuated by the fact that
she had done so in the past. It has been so customary to realize, for example, in case one is ill,
that the services of a skilled physician are essential to render necessary professional services,
and in case of a transaction involving legal matters that the advise of a competent and reliable
attorney is necessary to enable one to protect his affairs, property and other interests, that it is
difficult to believe that Louise Quilici was entirely ignorant in understanding that in such
circumstances she should have contacted her attorney, and taken another day, or a few days if
expedient or necessary, before relying upon her own judgment, and without, as it appears
from the evidence, at least stating to Masini that she owned only a one-half interest in the
property and the other one half was the property of her afflicted and incompetent sister. There
is no substantial evidence, in our view, that, before the agreement was signed, at least, she
even mentioned the interest of Mary Scossa. Furthermore, Mr. Koehler apparently had acted
merely in the one transaction, and there is no testimony that Louise Quilici engaged or
retained Mr. Koehler as her attorney.
her attorney. It is more probable that Mr. Koehler acted merely at the mutual request of the
parties, in drafting the agreement, and there is no substantial evidence that Louise Quilici
even informed Mr. Koehler as to the matter of her sister Mary owning such interest, until
after the agreement was executed. And, particularly in view of the pleadings and in view of
the evidence, certainly there is, or can be found, no justification for any conclusion to the
effect that Louise Quilici was misinformed as to her rights, nor is it reasonable to believe that
she stated anything in Masini's presence that would have enabled him to have protected
himself before entering into the transaction in question.
Judge Hatton, in his scholarly opinion, has referred to the subject of Vendor and
Purchaser, 55 Am.Jur., in sec. 555, page 949, after stating what is designated as the
benefit-of-bargain rule. As applied to executory contracts for the sale of lands, the text
continues: This is very generally recognized where the vendor cannot be said to have acted
in good faith, as where, after the making of the contract, he disables himself by his own act or
neglect from being able to convey, or where, having the ability to do so, he refuses to convey
because of an advance in the value of the land or otherwise, or where he had knowledge of his
want of or the defects in his title. When, however, the vendor has acted in good faith but is
unable to carry out the contract because of some defect in the title, recovery by the purchaser
for loss of his bargain is denied by the weight of authority.
Then Judge Hatton has referred to and quoted the good faith rule, in sec. 557, at page
951, of 55 Am.Jur., as follows: In many jurisdictions a distinction is made as regards the
general damages recoverable by the purchaser under a land contract when the vendor is
unable to convey between cases where the vendor acts in good faith in entering into the
contract and those in which good faith is wanting. While it is generally recognized that the
purchaser is entitled to recover the difference between the value of the land and the agreed
price, to recover for the loss of his bargain, where the vendor cannot be said to have acted
in good faith, it is held, in cases where the vendor does act in good faith, that the measure
of damages is the amount of the purchase money paid, with interest, thereby denying to
the purchaser any recovery for the loss of his bargain.
recover for the loss of his bargain, where the vendor cannot be said to have acted in good
faith, it is held, in cases where the vendor does act in good faith, that the measure of damages
is the amount of the purchase money paid, with interest, thereby denying to the purchaser any
recovery for the loss of his bargain. This is the rule laid down in the early English case of
Flureau v. Thornhill, 2 W.Bl. 1078, 96 Eng.Reprint 635, decided in 1776 and subsequently
followed in that country, and adopted in a majority of jurisdictions in this country and in
Canada.
And the learned jurist has further referred to note 19, under the above text, under which
supporting cases are cited, and also referred to 48 A.L.R. 19.
Also, Judge Hatton has considered and quoted the concluding portion of sec. 558, at p.
953, in 55 Am.Jur., as follows: It is a difficult thing to ascertain whether or not a vendor is
actuated by good faith in his refusal to convey. There can easily be frauds and deceits about it.
The vendor is strongly tempted to avoid his agreement where there has been a rise in the
value of the property. The purchaser, by making the contract, may lose other opportunities of
making profitable investments. The vendor knows, when he contracts, his ability to convey a
title, and the purchaser ordinarily does not. The vendor can provide in his contract against
such a contingency as an unexpected inability to convey. He can also liquidate the damages
by agreement. The measure of relief afforded by this rule is a fixed and definite thing. The
other rule is not easily applied to all cases, and the books are burdened with discussions and
refinements in relation to the modifications and restrictions and qualifications which, in
different jurisdictions, have been annexed to it.
And in Crenshaw v. Williams, 191 Ky. 559, 231 S.W. 45, reported in 48 A.L.R.,
commencing at page 5, the decision is summarized in the syllabus as follows:
1. A vendee of real estate is not entitled to damages for loss of his bargain upon inability
of the vendor to make good title, where the vendor acted in good faith and was guilty of
no positive or active fraud in the transaction.
make good title, where the vendor acted in good faith and was guilty of no positive or active
fraud in the transaction.
2. Mere failure of a vendor of real estate to refer the vendee to his record muniments of
title, or the judicial decisions bearing upon it, is not such fraud as to deprive him of the
benefit of the rule that damages for loss of bargain will not be awarded against a good-faith
vendor who is unable to convey a good title.
But, bearing in mind that, in this court's view, the crucial question is not so much the
principle of the benefit-of-bargain rule, or the good faith rule, as is the application of
those rules to the question now confronting us as to whether respondents have acted in good
faith or in bad faith in respect to the actual facts and circumstances in the instant case, and
particularly the question of law involved as to whether, in our determination and conclusion
of the matter, the respondents acted in good faith, or in bad faith.
In that connection, we shall refer to the article upon the subject Fraud and Deceit, 23
Am.Jur., sec. 80, pp. 857-858, as follows:
Sec. 80.Superior Knowledge or Means of Knowledge.Knowledge that the other
party to a contemplated transaction is acting under a mistaken belief as to certain facts is a
factor in determining that a duty of disclosure is owing. There is much authority to the effect
that if one party to a contract or transaction has superior knowledge, or knowledge which is
not within the fair and reasonable reach of the other party and which he could not discover by
the exercise of reasonable diligence, or means of knowledge which are not open to both
parties alike, he is under a legal obligation to speak, and his silence constitutes fraud,
especially when the other party relies upon him to communicate to him the true state of facts
to enable him to judge of the expediency of the bargain.
Some courts have gone so far as to hold that each party is bound in every case to
communicate to the other his knowledge of material facts, provided he knows the other to
be ignorant of them and they are not open and naked or equally within the reach of his
observation, unless they are open to common observation, are apparent on inspection,
are such as are not discoverable at first view, or are not visible to the eye.
his knowledge of material facts, provided he knows the other to be ignorant of them and they
are not open and naked or equally within the reach of his observation, unless they are open to
common observation, are apparent on inspection, are such as are not discoverable at first
view, or are not visible to the eye. It has also been held that if a vendor of property knows, or
has reasonable ground to believe, that unless he does make the disclosure the purchaser will
be liable to be misled to his injury, then it is his duty in good conscience to make it; and if he
does not make it, he is liable to the purchaser for the damages which the latter sustains.
It is very apparent that the respondents, in their dealings in regard to the transaction in
question, acted with superior knowledge, which was not within the reasonable and fair reach
of the other party, and which he could not discover by the exercise of reasonable diligence. In
the instant case, Masini's means of knowledge being inferior, or the material facts not being
equally within the reach of his observation, the respondents were under a serious obligation to
speak. Their failure to do so constitutes fraud, especially when the other party relies upon
him to communicate to him the true state of facts to enable him to judge of the expediency of
the bargain.
We refer, also, to Pomeroy's Equity Jurisprudence, fourth edition, vol. 2, upon the subject
of Actual Fraud, and that of Constructive Fraud, commencing in sec. 872, on page 1800,
and concluding with sec. 974, on page 2115. Reference now is made, particularly, to sec. 900,
to and including section 902, pages 1870 to and including 1877. The writer of this opinion
has, for many years, referred often to that very excellent and standard textbook, in regard,
especially, to principles of equity in relation to fraud, both actual and constructive, mistake,
impossibility of performance, and other kindred subjects.
Many indications appear from the testimony, and in certain matters appearing in the
record, that the respondents did not exercise that consideration and solicitude for the
appellant's interest as the appellant had the right to believe that they reasonably could have
done, nor such, in honesty and fair dealing, they were required, at least in equity, to do.
the right to believe that they reasonably could have done, nor such, in honesty and fair
dealing, they were required, at least in equity, to do. They were so extremely negligent, in
fact, especially as to Mrs. Quilici in concealing, or, at least, in failing to disclose fully the
interest of her afflicted sister, Mary Scossa, that we wonder what any or all of the factors
surrounding such relationship and that of her husband, Angelo Quilici, might have disclosed.
We are very much impressed, in view of the entire situation as same appears in the record,
that the silence of respondents and their failure to disclose what Louise Quilici must have
known, or could easily have determined by inquiring of her attorney, was not altogether
inadvertent. Soon thereafter, Angelo Quilici stated to Masini that Louise Quilici had, in
effect, changed her mindthat she did not wish to sell, and intended to return to Masini his
money (the check for $5,000 Masini had paid to them, less the sum of $1,000 involved in a
certain hay transaction, leaving $4,000). It may well be true that the reason of the
concealment of the respondents was that they were not too sure whether or not they wished to
carry through the transaction; that they might later wish to be excused, and might undertake
to rescind same. Their vacillation was indicated by the fact that very soon thereafter Angelo
said Louise did not wish to sell and convey the property. It is not at all improbable that they,
or one of them, at least, may have been conscious of a mental reservation to the effect that
Louise intended, therefore, not to make diligent effort to expedite, by proper legal
proceedings, the sale of the interest of her sister, Mary Scossa, or, at least, that she might have
preferred to leave the matter in abeyance as to commencing any proceedings to sell and
convey Mary Scossa's interest, at least until she had further time and opportunity to make up
her mind. So, her silence as to that phase of the matter may have been intentional throughout.
Also, Angelo Quilici's disclosure that she did not wish to sell may have accentuated her
inclination not to sell such undivided one-half interest.
inclination not to sell such undivided one-half interest. Perhaps, as often comes to mind in
dealing with such questions, the old-time figure of speech of one wishing to have his cake
and also to eat it too, occurs as appropriate.
So, before stating any definite determination as to the question of fraud, whether actual or
constructive, we must analyze to a reasonable extent, and discuss, the matter of the
application or Petition for Authority to Sell Ward's Estate and for Order of Sale, subscribed
and sworn to before John R. Ross, notary public, and filed the 14th day of December, 1945,
and the Order Denying Petition for Sale of Real Property, signed by the Honorable Clark J.
Guild, district judge, and filed the 13th day of February, 1946.
The petition above mentioned presents to us, in our consideration of this case, a rather
unusual situation, and especially so when we bear in mind that Angelo Quilici stated to
Masini, upon the occasion of Masini's calling to see Quilici a few days after the agreement
was signed, that Louise had said, in effect, that she had changed her mind and did not wish to
sell the ranch, and intended or hoped soon to return the money to Masini which appellant had
paid when the agreement was signed.
On page 133 of the transcript, vol. II, folio 397, Mr. Ross, attorney for respondents, asked
Masini, on cross-examination (February 2, 1948, at the trial):
Q. (By Mr. Ross) And what did I say had to be done? A. (Masini) You told me you had to
go through Court.
Q. (Ross) Now, was that the first time that you knew about Mary's interest in the
property? A. (Masini) No, I knew of it before that. I knew a few weeks afterwardsa few
days. I kept going to the Ranch and Angelo told me to take my money back and Louise don't
want to sell and anyhow I think it was they finally say on account of Mary's being in there
they couldn't sell anyhow.
In that connection we will mention the observation of Judge Hatton, in his opinion above
mentioned, on page 40, folios 119-121, of the record on appeal, vol. I:
It has been held that a vendor may not speculate on his contract of sale, proceeding on it
if found to be profitable and repudiating it if unprofitable. The plaintiff testified that after the
agreement was made and on his calling at the ranch, Mr. Quilici stated, in effect, that his wife
had decided she did not wish to sell. It could well be that the defendants had learned that they
had made a bad bargain, as indicated by the proofs, and that their desire to withdraw from the
agreement was shown by statements made by Mr. Quilici. The evidence, however, does not
indicate an attempt by defendants to repudiate the sale. There was an inability to sell,
independent of any wish on the part of the defendants.
An application was made in the guardianship matter to obtain the approval of the
attempted sale. In view of the law on the subject (Stats.1945), that proceeding was futile, and,
so far as the sale involved here is concerned, it would have been futile if the petition and the
procedure thereon had been regular and had resulted in an order to sell the interest of Mary
Scossa. The plaintiff was under no duty or obligation to bid at such a sale. The Court does not
consider that the proceeding in the guardianship matter bears evidence of bad faith. (Italics
ours.)
Those expressions by the learned judge present, to our minds, the crux of the matter. Was
there fraud or bad faith on the part of the respondents in changing their minds as to the sale
and creating a situation indicating impossibility to sell, or was their action entirely in good
faith, irrespective of the fact that, in Judge Hatton's language, it has been held that a vendor
may not speculate on his contract of sale, proceeding on it if found to be profitable and
repudiating it if unprofitable; and irrespective of the fact that it could well be that the
defendants had learned that they had made a bad bargain, as indicated by the proofs, and
that their desire to withdraw from the agreement was shown by statements made by Mr.
indicated by the proofs, and that their desire to withdraw from the agreement was shown by
statements made by Mr. Quilici. (Italics ours.)
We have a very high regard for Judge Hatton's views in such matters, and, to be entirely
fair, reiterate the expression by the learned jurist that:
The evidence, however, does not indicate an attempt by defendants to repudiate the sale.
There was an inability to sell, independent of any wish on the part of the defendants.
An application was made in the guardianship matter to obtain the approval of the
attempted sale. In view of the law on the subject (Stats.1945), that proceeding was futile, and,
so far as the sale involved here is concerned, it would have been futile if the petition and the
procedure thereon had been regular and had resulted in an order to sell the interest of Mary
Scossa. (Italics ours.)
The learned judge's above-mentioned conclusions are not facts, but, necessarily, constitute
merely his honest convictions and conclusions, predicated largely of course, upon the theory
urged by respondents' counsel. Much as we feel reluctant to do so, we are impelled to
disagree with both the view and the conclusion that respondents took such steps, reasonably
and with diligent effort, to have prepared sufficiently the proffered petition to sell the interest
of the ward in the property mentioned, and to have diligently presented the necessary facts to
have supported it.
We are impressed with the detailed presentation and arguments of appellant's counsel in
appellant's opening brief. In their written argument II, B, 5, under the caption, Respondents
abortive attempt to mitigate bad faith and fraud, appellant has ably and, as appears to us,
clearly, stated the facts disclosing the attempted effort to place before the district judge, the
Honorable Clark J. Guild, the alleged Petition for Authority to Sell Ward's Estate and for
Order of Sale, and the Order Denying Petition for Sale of Real Property, and the facts and
reasons which caused the attempted order of sale to be denied.
order of sale to be denied. The contentions of counsel for appellant, in their argument in said
brief, stating the alleged facts and descriptive acts and the steps alleged to have been taken by
respondents, appear strongly indicative of a preconceived plan and intention on the part of the
respondents to create, or bring about, a situation making futile and impossible the carrying
out of the agreement of sale between the appellant and respondents as to the property,
ostensibly owned by respondents, and which, it had been disclosed, upon or after the signing
of such agreement, was equally owned by Mary Scossa, and which could not, due to Mary
Scossa's incompetency, be disposed of or sold, because Louise Quilici, in view of the existing
facts, could not, as guardian, convey the one-half interest of Mary Scossa in the property to L.
Masini. On pages 49 to 53 of their opening brief, counsel for appellant have analyzed the
matter very fully, and, we believe, clearly disclosed why certain usual facts necessary to show
sufficient grounds for such sale of the interest of a ward in guardianship proceedings as
would justify the court to order such sale, could properly have been stated, but were patently
omitted, notwithstanding the fact that, in drafting such a petition, an attorney with the usual
or ordinary amount of ability could readily, we believe, have sensed the necessity of showing
such necessary grounds for the petition.
For instance, in the petition mentioned, the respondents' attorney, when requesting
authority to carry through, in compliance with the Statutes of 1945, c. 57, the alleged sale,
could, and should, we believe, have set forth the facts essential to have established that it
would be necessary or for the best interests of the ward to sell the real estate of the ward, in
that the income from the ward's estate was insufficient to support and maintain the ward, or
that it would be to the ward's benefit to reinvest the proceeds from the sale. It has not been
shown that at the time of the hearing before Judge Guild and from which the order denying
the sale of the ward's interest resulted, any facts were presented as to why the proposed
sale to Masini of the ward's one-half interest was, in proportion, below the price of
$40,000 determined in the agreement.
of the ward's interest resulted, any facts were presented as to why the proposed sale to Masini
of the ward's one-half interest was, in proportion, below the price of $40,000 determined in
the agreement. In fact, it was there set forth that the appraisers had appraised the ward's
interest at $20,000, and, also, that Mrs. Katie D'Andrea, a sister of Mary Scossa, the
incompetent, appeared and objected * * * and her testimony (contained in the Order
Denying Petition for Sale of Real Property) was taken in support of her objections which
were based on the fact that the $12,500.00 that would be received by the estate of the
incompetent on the basis of the Masini offer was far below the true value of the incompetent's
interest in the premises which she testified to be worth at least $20,000.00. (Italics ours.) It
should be emphasized that it was not the full price of $20,000 for Mary Scossa's interest to
which there was any objection, but because the respondents, by their own action not
sufficiently explained in the petition, assumed, by their allegations or statements in the
petition, to separate the value of the ranch, priced by the agreement at $40,000 for the entire
property, including both the real property and the personal property, to provide that the land
should be apportioned at the price of $25,000, and the personal property, including the
machinery, equipment, livestock and crops, should be apportioned at $15,000, leaving the
total value of the ward's estate at only $12,500, instead of the amount of $20,000 as
appraised. The amount of $12,500 for the ward's interest, being considerably less than even
two-thirds of the total value of the one-half interest in the entire ranch, which would have
been $13,333.33, Mary Scossa's interest on such basis of only $12,500 would have been
$833.33 less than two thirds of the appraised value. Consequently, the order of sale was
denied. How easy it would have been (in the words of appellant's counsel, on page 52 of
their opening brief) for the Quilicis to have increased their offer by $833.33 to bring it
within the requirements of the statute if they had desired to even put the court in a position
to act formally on their petitionl"
even put the court in a position to act formally on their petition!
It appears necessary to include herein the statements made by Louise Quilici in her said
petition (page 26 of the copy of Petition for Authority to Sell Ward's Estate and for Order of
Sale, in line 26, to and including page 28, line 14, same being folio 723, line 26, to and
including folio 728, line 14, vol. II record on appeal, pp. 242-244):
That the entire estate of the incompetent consists of an undivided one-half interest in and
to the Scossa Home Ranch, formerly known as the Herbold Ranch'; that there is no personal
property and/or money belonging to the incompetent at the present time; that the sole income
of the incompetent has been, and is, the rental your petitioner has paid to the estate for the use
of her undivided one-half interest in said ranch.
By way of explanation, petitioner points out to the Court that she is the owner of the other
undivided one-half interest in the ranch referred to, and that petitioner and her husband have
been in possession of, and have farmed the same, for more than ten years past; that all of the
personal property on said ranch including machinery, livestock and crops is the separate
property of petitioner and husband; that petitioner has filed her first account and report of
guardian' which account and report will show the Court in detail the moneys received and
disbursed by petitioner for and on account of the incompetent.
That on or about the 22nd day of November, 1945, one Lawrence Masini entered into an
agreement with petitioner to purchase the ranch owned by petitioner and Mary Scossa, the
incompetent, as tenants in common. A true copy of the agreement is attached hereto, marked
Exhibit A' and made a part hereof by reference. By virtue of said agreement the said
Lawrence Masini agreed to pay the sum of $40,000.00 as full purchase price for said ranch
together with all personal property, machinery, equipment, livestock and crops thereon. That
such offer was on the basis of $25,000.00 for the real property and $15,000.00 for the
personal property, machinery, equipment, livestock, and crops then on the ranch
belonging solely to petitioner and her husband; that on the basis of said offer the amount
of money coming to the incompetent would be the sum of $12,500.00.
such offer was on the basis of $25,000.00 for the real property and $15,000.00 for the
personal property, machinery, equipment, livestock, and crops then on the ranch belonging
solely to petitioner and her husband; that on the basis of said offer the amount of money
coming to the incompetent would be the sum of $12,500.00.
That the facts and circumstances upon which this petition is based are as follows: That as
hereinabove stated, the entire estate of the incompetent consists of an undivided one-half
interest in and to the Scossa Home Ranch of approximately 200 acres of land together with
water rights, situate about one mile south of the City of Yerington, in Lyon County, Nevada;
That petitioner is the owner of the other undivided one-half interest in said ranch; that
petitioner and her husband are sole owners of all of the personal property on said ranch
including machinery, equipment, livestock, and crops; that petitioner and her husband have
for the past ten years farmed and operated said ranch paying rental to the incompetent for her
share of the premises; that petitioner has accepted a payment of $5,000.00 from Masini and
the balance of the purchase price is to be paid upon approval of the Court of the sale of the
incompetent's interest; that the $12,500.00 which will be the incompetent's share of the
purchase price can be invested and used for the support and maintenance of the incompetent.
The foregoing allegations and statements in the petition are self-evident, and further
elucidation and comment seem superfluous.
Obviously, Mary Scossa's interest as to the personal property, including livestock,
machinery and other things personal, could not be frittered away or confiscated or simply
taken by the respondents, apparently without any legal action or any proceedings which are
disclosed by any statements in the petition.
On page 27 of the petition, respondents, referring to Mary Scossa, lines 13 to 16, inc.,
stated, as above quoted:
Mary Scossa, lines 13 to 16, inc., stated, as above quoted:
That on or about the 22nd day of November, 1945, one Lawrence Masini entered into an
agreement with petitioner to purchase the ranch owned by petitioner and Mary Scossa, the
incompetent, as tenants in common. A true copy of the agreement is attached hereto, marked
Exhibit A' and made a part hereof by reference.
Under such facts and in view of the other unexplained portions of such petition to sell, it
nowhere appears how the ownership or title of Mary Scossa's one-half interest as co-owner or
tenant in common of the ranch, including the personal property, was, by any lawful or
justifiable action, dispossessed from her, and had become, as to such personal property,
possessed by Louise Quilici and her husband.
Admittedly, on page 27 of the petition, respondent, Louise Quilici, in lines 1 to 9, points
out to the court that she is the owner of the other undivided one-half interest in the ranch
referred to, and that petitioner and her husband have been in possession of, and have farmed
the same, for more than ten years past; (Louise Quilici as a tenant in common, assisted by
her husband, Angelo Quilici, apparently referring to Louise as tenant in common, the other
co-tenant being Mary Scossa) that all of the personal property on said ranch including
machinery, livestock and crops is the separate property of petitioner and husband. And then
it is stated, on pages 26-27, that the sole income of the incompetent has been, and is, the
rental your petitioner has paid to the estate for the use of her undivided one-half interest in
said ranch.
By what means or method, in the absence of explanation, did all of the personal property
on said ranch including machinery, livestock and crops become the separate property of
petitioner and husband? We are always solicitous that the interests of one under disability be
carefully safeguarded. Undoubtedly this could, and should, have been done by respondents,
fully and completely. We believe, however, that if a sincere endeavor to accomplish such
safeguarding had been diligently prosecuted by, or on behalf of, respondents, a proper
adjustment could have been had, which undoubtedly would have preserved Mary Scossa's
interest intact, without defeating the Masini agreement.
sincere endeavor to accomplish such safeguarding had been diligently prosecuted by, or on
behalf of, respondents, a proper adjustment could have been had, which undoubtedly would
have preserved Mary Scossa's interest intact, without defeating the Masini agreement. A
proper accounting, we believe, could have been had, which would have properly protected
both the Quilicis and the ward, Mary Scossa. Furthermore, we have not been able to find
from the evidence in the record any facts or any basis to establish that: By virtue of said
agreement the said Lawrence Masini agreed to pay the sum of $40,000.00 as full purchase
price for said ranch together with all personal property, machinery, equipment, livestock and
crops thereon. That such offer was on the basis of $25,000.00 for the real property and
$15,000.00 for the personal property, machinery, equipment, livestock, and crops then on the
ranch belonging solely to petitioner and her husband; that on the basis of said offer the
amount of money coming to the incompetent would be the sum of $12,500.00.
Upon as full a consideration of the entire record as I have been able to give it, and I have
studied same with due care and the desire to reach a correct determination and solution of the
entire situation as appears in the record, I have been unable to discover or find that there is, or
has been, good faith on the part of respondents, or that there has been an absence of fraud on
their part.
As to respondents' theory, so strongly urged when Louise Quilici made oath to her answer
and cross-complaint, June 20, 1946, to the effect that on or about December 14, 1945, first
learning that she could not sell and convey the undivided interest of her ward filed her
petition praying for an order to sell all of the right, title and interest of the said Mary Scossa,
this court, it is believed, would have been much more willing to have believed and
determined, in our opinion and decision, that there was an absence, at least of actual fraud
and bad faith, were we not required to investigate the petition and proceedings in connection
with the guardianship matter.
Judge Hatton, at the time of the trial, February 2, 1948, had before him, and considered, a
copy of the proceedings in Judge Guild's court in relation to the petition to sell the ward's
interest and the court denying such order of sale, and, notwithstanding the learned judge's
opinion following the trial in the First judicial district court, in and for the county of Lyon,
No. 3274, in which he referred to the clearly obvious contradictions and inconsistencies
plainly apparent as between the allegations of said answer and cross-complaint to the effect
that there was suppression and concealment, in comparison to the very different theory
advanced, for the first time at the trial, by the respondents, to the effect that the appellant,
Masini, was repeatedly informed, by respondents and by the witness Bednar, that before a
sale could be had the approval of the court was necessary, nevertheless, the learned jurist,
confining the issues to the complaint of appellant and the denials of the answer and
cross-complaint of respondents, stated, in said opinion, there remains for the Court to
consider, the issue of fraud. The able jurist, as to the question of fraud, failed to find fraud or
bad faith. Referring to the fact that Judge Hatton discussed, as we have heretofore pointed
out, that it was futile, or would have been, in view of the situation as shown by the facts of
the petition and the order denying the petition to sell, and the difficulties involved, for the
respondents to have accomplished the carrying through of the transaction between the
appellant and respondents, the judge stated: The Court does not consider that the
proceedings in the guardianship matter bear evidence of bad faith. And, under the
circumstances, that court, in effect, considered it impossible to carry out the agreement. On
the other hand, we believe that there was, in our judgment, no such impossibility of
performance as may have appeared. At least, it is our belief that if the respondents and their
able attorney had, earnestly and in good faith (notwithstanding that Louise Quilici had told
her husband and he had informed Masini that she did not wish to sell but would return
Masini's money to him), seen fit to have endeavored, with reasonable and due diligence,
honestly and fairly to have accomplished the sale of Mary Scossa's interest, we can see no
good and legitimate reason why it could not have been accomplished.
seen fit to have endeavored, with reasonable and due diligence, honestly and fairly to have
accomplished the sale of Mary Scossa's interest, we can see no good and legitimate reason
why it could not have been accomplished. We believe the paramount and only real difficulty
which prevented the carrying out of the agreement was respondents' designed and clearly
conceived intention not to do so.
It is believed that (in common parlance, if it may be so stated) the respondents determined,
fraudulently and in bad faith, to sabotage the agreement, and thereby, intentionally and
designedly, to make the carrying through of the agreement impossible of performance. Such
impossibility, we believe, was of their own wrongful volition and action, and for purely
selfish purposes, and was, therefore, fraudulent. Reversal is, therefore, inevitable.
The question remaining is, to what extent this court may properly indicate, upon sending
the case back for a new trial, the disposition which should be made of it by the lower court.
We find that there was no repudiation on the part of appellant, in his failure to accept the
receipt by him of the check drawn in favor of Louise Quilici in the amount of $4,000, on or
about November 22, 1945, and later returned, addressed by her to L. Masini, and inclosed in
the envelope mailed by John R. Ross, Esq., attorney for respondents, with a letter on his
letterhead, dated February 7, 1946, nor do we find any repudiation in the declination to accept
the check, under the facts which we have fully considered nor in any of his acts in returning
the said check to Louise Quilici, and which has been admitted for the purpose of the instant
case.
This court should, we believe, upon returning the case, and all exhibits and all matters
constituting the files thereof, to the court below, indicate to the court that, in view of the
changing conditions which time has necessarily wrought, and in view of the practical and
legal situation which the respective attorneys have impliedly, if not expressly, indicated, it is
our considered opinion that only the issue of damages should be considered and
determined by the district court of the said First judicial district, in and for the county of
Lyon.
if not expressly, indicated, it is our considered opinion that only the issue of damages should
be considered and determined by the district court of the said First judicial district, in and for
the county of Lyon. We have no desire, nor would we consider it proper, to indicate, in any
degree, what the court should do as to the nature, or kind, of such proposed damages, nor
what the extent or amount thereof should be. It may be that the court below may determine
that the evidence before that court and in the record, in relation to damages, may, in that
court's view, prove to be sufficient to enable such damages to be ascertained and determined,
without trying the facts anew; or, on the other hand, the attorneys for one or both of the
parties may desire further and additional evidence upon the question of damages, or some
phase thereof, if the district court should so determine. That matter should and will be left
entirely within the discretion of the court below, as will be, also, the matter of costs.
Upon the conclusion of a new trial in the lower court, and its findings and judgment,
proper provision to the effect that the amount of $4,000 still in the hands of the respondents,
and lawful interest at the rate of 7% per annum, from such time as that court shall determine,
upon such principal amount, to be paid to the appellant should, of course, be included in the
judgment, and, upon such judgment, interest and costs being hereafter fully paid by the
respondents to the appellant, that such agreement of sale made and executed November 22,
1945, may be, if the lower court so finds, rescinded.
It is ordered, therefore, that the judgment of the First judicial district court of the State of
Nevada, in and for the county of Lyon, and that court's order denying appellant's motion for a
new trial, be, and are hereby, reversed, and that a new trial in the said district court be had, in
accordance herewith.
Badt and Eather, Justices (concurring specially).
We concur in the order of reversal and remand for new trial, limited to the issue of
damages. The trial court found in effect that there had been a concealment by the Quilicis
of the fact of Mrs.
court found in effect that there had been a concealment by the Quilicis of the fact of Mrs.
Scossa's interest in the real estate (the record does not disclose that she owned any interest in
the personalty) but that such concealment was not with fraudulent intent, and based its
judgment for the defendants upon the one ground of impossibility of performance of the
contract. That there had been no reasonable and good faith efforts to perform on the part of
the defendants is clear from the analysis in the foregoing opinion, of the proceedings had in
the guardianship court (insofar as the real estate is concerned) and from a consideration of the
applicable provisions of the code governing proceedings in the matter of guardians' sales. Our
concurrence therefore is upon the sole ground that the court's sustaining of the defense of
impossibility of performance was error.
July 25, 1950.
Per Curiam:
Rehearing denied.
____________
67 Nev. 373, 373 (1950) State v. Williams
THE STATE OF NEVADA, Plaintiff and Respondent, v.
JAMES WILLIAMS, Appellant and Defendant.
No. 3584
June 8, 1950. 219 P.2d 184.
James Williams was convicted in the Fourth Judicial District Court of Elko County, Taylor
H. Wines, Judge, of murder in the first degree and was sentenced to death, and he appealed.
The Supreme Court, Badt, J., held that judgment would not be reversed because of the alleged
fact that defendant's confession which was admitted, had been given before defendant was
taken before a committing magistrate, that the fact that a confession is taken before a
defendant is taken before a committing magistrate, does not render the confession
inadmissible, that District Court and jury had right to believe testimony of undersheriff that
defendant's confession was given without any promises being made to defendant as claimed
by defendant, and that evidence was sufficient to justify jury's finding of wilfulness,
deliberation and premeditation necessary to support a verdict of first-degree murder.
Affirmed.
1. Criminal Law.
Where at no point in the trial court in murder prosecution did defendant ever object to the introduction of
his confession on ground that it had been given before defendant was taken before a committing magistrate,
and virtually everything contained in the confession was testified to by the defendant when he voluntarily
took the stand in his own behalf, and on appeal defendant refused to controvert recital in the brief of the
state and in the state's oral argument that defendant was in fact taken before a committing magistrate
promptly, conviction would not be reversed on ground that confession was given before defendant was
taken before a committing magistrate.
2. Criminal Law.
Fact that confession is obtained before defendant is taken before a committing magistrate, does not of
itself render the confession inadmissible. N.C.L.1929, sec. 10744.
3. Criminal Law.
Where defendant in murder prosecution testified that his confession was made solely because of alleged
promise of district attorney that if defendant would sign the confession, he would receive a sentence
of only two or three years, and that undersheriff assured defendant that defendant
could rely on the alleged promise of the district attorney, but undersheriff testified
that no promises were made to defendant, court and jury had right to disbelieve the
testimony of the defendant and to believe testimony of the undersheriff, and it was
not the province of the supreme court on appeal to pass on the credibility of the
defendant and the undersheriff.
would receive a sentence of only two or three years, and that undersheriff assured defendant that defendant
could rely on the alleged promise of the district attorney, but undersheriff testified that no promises were
made to defendant, court and jury had right to disbelieve the testimony of the defendant and to believe
testimony of the undersheriff, and it was not the province of the supreme court on appeal to pass on the
credibility of the defendant and the undersheriff.
4. Homicide.
Evidence was sufficient to justify finding of jury as to wilfulness, deliberation, and premeditation
necessary to support verdict of first-degree murder, notwithstanding fact that defendant had consumed large
quantities of wine, whiskey, and beer prior to the homicide.
George F. Wright and F. Grant Sawyer, both of Elko, for Appellant.
Alan Bible, Attorney General, George P. Annand and Robert L. McDonald, Deputy
Attorneys General and A. L. Puccinelli, District Attorney of Elko County, Elko, for
Respondent.
OPINION
Appellant was convicted of murder in the first degree and sentenced to death. He appeals
from the judgment and from the order denying his motion for new trial. The appeal presents
three points for our consideration. Using appellant's own language, they are as follows:
1. That the confession was taken after the defendant had been taken into custody and
prior to the time that defendant was taken before a committing magistrate; that an undue
delay in taking defendant before a committing magistrate renders the confession procured
inadmissible;
2. That the District Judge erred in ruling that the confession was admissible over the
objection of counsel in that the weight of the evidence indicated that the confession was
obtained due to promises and inducements from the District Attorney and from
Under-Sheriff, Jess Harris.
from the District Attorney and from Under-Sheriff, Jess Harris.
3. The verdict should be reduced to second degree murderthe reason given for this
assertion being that the evidence shows that appellant's state of intoxication was such that he
was deprived of the power to form a design, to plan, deliberate upon and purpose the death of
another; that the act was the result of impulse, not deliberation, so that appellant could not be
guilty of murder in the first degree.
A consideration of the facts first becomes necessary.
The Southern Pacific Railroad and the Western Pacific Railroad run in a general easterly
and westerly direction through the town of Deeth, in Elko County, Nevada, and at Deeth are
separated by a matter of a quarter of a mile or more. Appellant Williams and his victim
Abraham Gutierrez, called throughout the case by his nickname Pardner, and hereinafter
thus referred to, were both employed as laborers for the Southern Pacific, and each occupied
living quarters furnished by the Southern Pacific. LeRoy Smith, also employed as a laborer by
the Southern Pacific, lived in a boxcar which had been converted into a dwelling between
one-quarter mile and one-half mile from the bunkhouse occupied by Williams. Williams and
Smith were Negroes. Pardner was a Mexican, and lived with another Mexican referred to as
Preacher or The Preacher. Williams, Smith, Pardner and Preacher and other laborers had
engaged in a drinking bout all of Saturday and Sunday, October 30 and 31, 1948, making
numerous purchases of gallons and half-gallons of wine and pints of whiskey, and some beer
from a local store. There is no question but that vast quantities of wine and whiskey and some
beer were consumed by all of the parties during those two days.
On Saturday night the section foreman and the pumper left on a deer hunt, from which
they did not return before Sunday night. Williams was left in charge of operating the pump
and of generally looking after things, including, as the testimony is interpreted by appellant,
"watching that no one molested Mrs.
watching that no one molested Mrs. Maud Svedin, the foreman's wife, who lived near the
section houses. Appellant emphasizes the fact that Mrs. Svedin, though stating that Pardner
had not made any improper advances to her, testified that when Williams took Pardner home
Saturday night, Pardner said to her, Mrs. Paul [Mrs. Paul Svedin], aren't you going to kiss
me goodnight; aren't you going to kiss me goodbye? She immediately sent him home but
denied that she asked Williams to keep Pardner away from her or that she had ever discussed
the matter with Bob Taelour (the pumper) or Buddy Seymour (a section worker). When
Pardner was talking to Mrs. Svedin, he also asked Mrs. Svedin's young daughter to sit with
him in the living room. He wanted to know her size so that he could order her a dress for a
Christmas present. He had also at one time asked her to take a walk with him. We mention
these things because of appellant's contention that under the influence of all of the wine and
whiskey consumed by him that Saturday and Sunday his duty to protect Mrs. Svedin from
Pardner assumed large and unnatural proportions.
The defendant, taking the stand on his own behalf testified in considerable detail, as to
what had happened all of that Saturday and Sunday; as to where he went and what he did; as
to the comings and goings of others; as to the numerous purchases of wine and whiskey and
some beer; as to many conversations had; as to meetings in one bunkhouse or another; as to
his frying some pork chops for Pardner. Then late Sunday night he lay down in his bunk to
sleep. He then testified as follows:
When they came to my house, well then Willie and Lonnie were there talking. Lonnie had
come in and Lonnie was talking, and, they come to my house. And I said then I didn't want
them in, and when I said I didn't want them in, they get a piece of iron and goes to knocking
on the door; the Preacher does; and Pardner had a knife, made out of a case knife, a dirk. And
when Preacher was knocking on the door, I go and open the door then, and I told them, I
says, you fellows go away; I don't want you fellows in my house.
door then, and I told them, I says, you fellows go away; I don't want you fellows in my house.
Well, they said, we all work for the railroad too, so we can go into any of these houses that
we want to. So then I told them, yes, that is right, that you does work for the railroad, but the
railroad gives me this house and they give you all your house over there, so, you can't come
and take my house. They say, we come because we know that you have got something to
drink; and I told them you can't come in my house. And then Preacher started in with that
piece of pipe and I didn't have anything, so, I reaches down and picks up a big piece of coal
and I throwed it at him and I told him to get out. And the Preacher walks away, and Pardner
has this dirk in his hand. And the Preacher says: I'll fix him. And Pardner says: I'll kill him.
And the Preacher goes to his house and Pardner starts going to his house and I break and ran
* * Pardner had a dirk, made out of one of these files; no, it was one of those long table
knives and he took a file and made a dirk out of it. It was really keen on the end and sharp on
both sides * * *
They says to me, what he says, well, you ought to kill him; why don't you kill him.
Preacher says to Pardner. I mean Pardner says to Preacher, he says, why don't you kill him?
and Preacher goes, starts in the house, and he says I will fix him and as he says that then I
break and runs * * * I left while he was still in my apartment * * * Then, I goes through Mrs.
Svedin's yard and keeps straight by the liquor store and goes right straight to LeRoy Smith. I
don't have any idea how long it took to get from my bunkhouse over to Smitty's [LeRoy
Smith's] house, but it would be very short time, I do know * * *
I goes over to Smitty's house and when I get there, I knocks on the door and didn't anyone
answer, and I knocks on the door again, and didn't anyone answer, and then I goes around to
the other side and I knocks, and didn't anybody answer. And then I says, well, if he's been
drinking all the time, something could have been the matter with him, so I gets up to the
window and looked in and I couldn't see or hear anybody, but there was a light in the
cabin.
the matter with him, so I gets up to the window and looked in and I couldn't see or hear
anybody, but there was a light in the cabin. So then I takes a box on the side of the wall and
pushed it over by the window and breaks the glass and crawled in the window, I do. And
there wasn't anybody in there. I get the rifle because I knows that the gun is just above the
head; the head of the bed; it was held there with two nails, just for the rifle, to hang on. I get
this rifle and then there was a whole box of shells there and I get some of those shells and I
goes back over there; walking slowly back to my own place * * The clip holds six shells. I
took that gun and took some shells and headed back to the bunkhouses.
Well, before I got over there, when I goes by the liquor store, it was closed, so I got the
liquor store man to open his store up; I went over to Mr. Johnson's house and got a half gallon
of wine and I went to drinking it there * * * I was drinking wine just opposite his house there;
right back of the store * * * So then I proceeded walking slowly down to my house. I goes to
my house and I looks to see if Willie is there and he is still there; I did that because I was
afraid that they might do something to Willie. I goes in and Willie is there laying on the bed
asleep in his bed. And while Willie is laying there, I goes to drinking again. And then I goes
and knocks on the Pardner's door * * * I knocked on Pardner's door and Pardner told me:
You'd better not come in; if you come in, I'll kill you. So, I told him, well, you told me that
already that you was going to kill me and you've already run me away from my house, so now
it's either you're going to kill me or I'll kill you. You can come out now. And I started pushing
the door a little in Pardner's house; it wasn't locked or anything. And when I came in he raised
up on the bed. Then, that was when I shot him * * * He raised up in bed. He raised up while
he was in bed. I was standing by the wall just as you come out in the kitchen going into the
living room. I was just standing right against that wall, right by the petition * * * I would
say I shot something like about four or five times."
right by the petition * * * I would say I shot something like about four or five times.
Asked by his counsel concerning the gun, he testified: I don't know whether the clip was
full; I don't really know. The gun has a little band on there and there is a little clip that you
press and the clip will fall out; I looked and saw some shells in it and I pushed it back in.
He then testified of his return to his own house, drinking some more and taking a gallon
and a half of wine over to Smith's house and tells of conversations with one or more of the
other men in which he stated that he had killed Pardner and of the refusal of the others to
believe him. He asked that the officers be sent for cause I didn't want to run off. He testified
further as follows in response to questions put to him by his counsel:
I am going to ask you again, Tiny [Williams], why you went to all that trouble to get the
police?
A. Well, the reason why, the reason I wanted to get the police was because what I had
done, I figured I had a reason to do it, and I didn't want to run away andafter I had did
itand lay it to somebody else.
Q. Did you figure, Tiny, that you were justified in doing what you didthat you had a
reason for it? A. I did; for the reason what they had been doing to Mrs. Svedin.
Q. Tiny, do you have any idea how much liquor you drank on Sunday? A. I really couldn't
say because I drank so much I couldn't sayliquor and wine altogether.
On cross-examination the defendant went over much of the same ground and while
consistently maintaining that he was very drunk, he had a rather clear recollection of
everything that happened. After again testifying that he broke and ran when he saw that
Pardner had a knife, he testified:
Q. When you broke and ran were they coming after you? A. Pardner went to his house
and Preacher was going in his house.
Q. Precisely. You broke and ran when both men were walking away from you; is that
right?
were walking away from you; is that right? Is that correct? A. That is correct.
Q. And you went to Smitty's house? A. That is right.
Q. How did you walk from your place to Smitty's house? A. I went through by Mrs.
Svedin.
Q. Well, now, in order to get to Mrs. Svedin, from your place, and then down to Smitty's,
tell the Court and Jury how you would have to go? A. There is a little trail that goes through
there. The trail goes right through by Mrs. Svedin, right up toright up the alley to the liquor
store, by the liquor store straight on through.
Q. Did you walk along that trail that night? A. Yes; its a trail that goes up through in
there.
Q. So now, you testify that you walked straight across; is that correct? A. You can't walk
straight across; you get to this alley and you go up the alley to the liquor store and straight
from there.
In explaining why he broke and ran while Pardner and Preacher had turned their backs and
were walking away from him, he testified: Well, the Preacher was supposed to be going and
getting a gun too. That is what he said; that he was going to get something and fix me * * *
And Pardner sayskill him * * * and I broke and ran because I knowedhe always said he
had a gun.
The cross-examination further emphasized the fact of his breaking into Smith's house to
get the gun, of his ascertaining that the gun was loaded by removing and replacing the clip of
shells, of his return to the store, getting the proprietor up and buying more wine. Well,
afterwards I thought of Willie up there in my house and I was wondering if they had done
anything to him; hurt him; so, I wanted to go back and see if he was all right. He then went
to his own house, the lights were on, Willie was asleep, Williams walked across the yard to
Pardner's house. He again recounted the shooting substantially as he had testified on direct
examination.
substantially as he had testified on direct examination. As to Pardner's position, he testified:
He was laying down and raised up when I came in.
It is unnecessary to set forth the confession signed by appellant. In substance the facts
stated therein are the same as the facts testified to by the appellant on the witness stand. The
transcript comprising several hundred pages contains a great deal more testimony not only by
the defendant but by many other witnesses for both the state and the defendant. For the
purpose of considering the points raised on this appeal we find it unnecessary to make further
reference thereto.
1. With reference to appellant's assertion that the record shows that he was not taken
before a committing magistrate until December 14, 1948, forty-three days after he was taken
into custody on November 1, 1948, the respondent's brief asserts the fact to be in accordance
with the following chronology of events. October 31, 1948, deceased shot and killed by
defendant; November 1, defendant arrested; November 3 (after holding of coroner's inquest)
complaint filed charging defendant with first-degree murder; November 3, defendant brought
before the justice of the peace of Elko township (Elko is some 35 miles west of Deeth),
advised of the charge contained in the complaint, and preliminary hearing set for November
9, 1948, thereafter continued to November 10, 1948; November 3, 1948, at approximately
5:30 p. m., several hours after he had been brought before the committing magistrate,
confession signed; November 10, preliminary hearing completed and defendant held to
answer; November 23, new complaint filed, followed by preliminary hearing (in which
appellant was again held to answer and upon which he was arraigned and tried), which filing
of such new complaint was occasioned by the ruling of the district court by reason of
appellant's challenge, through his attorneys, of the legality of the original information. Under
this chronology of events respondent asserts that appellant was brought before a committing
magistrate within forty-eight hours rather than after a delay of forty-three days as
asserted by appellant, and that appellant was as a matter of fact brought before a
committing magistrate before signing his confession.
brought before a committing magistrate within forty-eight hours rather than after a delay of
forty-three days as asserted by appellant, and that appellant was as a matter of fact brought
before a committing magistrate before signing his confession. While counsel for appellant
state in their reply brief that they feel constrained to stay within the purview of this record as
presented before this court [and not] to impose upon this court by stating alleged facts or
arguments which are not a part of, and do not appear as any proceeding in this matter, they
do not controvert any of the statements in respondent's brief with reference to such first
proceedings.
The only place in the record before us showing that appellant was taken before a
committing magistrate on December 14, 1948, forty-three days after he was taken into
custody on November 1, appears in the trial court's Judgment and Sentence, filed April, 18,
1948, and which likewise appears verbatim in the minutes of the court of that date, in the
preliminary or introductory recitals whereof the court said in part: James Williams, the Court
informs you that on the 23rd day of November, 1948, the district attorney of Elko County,
Nevada, filed a complaint against you in the name of James Williams in the justice court,
Elko township, in the County of Elko, State of Nevada, and that thereafter and on the 14th
day of December your preliminary hearing was had upon said charge of murder in the first
degree in said justice court * * * For the purpose of the learned trial judge's making of the
record there was no occasion to mention the fact that this was a new or second complaint or
that the defendant had successfully challenged the legality of an earlier information based
upon an earlier complaint under which the defendant had on a prior date been brought before
the committing magistrate. But more significant perhaps is the fact that when the confession
was offered in evidence the only objection made by the defendant was that his confession had
been signed solely by reason of the district attorney's promise that if the defendant would sign
the confession, he would not "have to do over two or three years" at the penitentiary, and
the undersheriff's assurance that the defendant could rely upon the promise of the district
attorney.
he would not have to do over two or three years at the penitentiary, and the undersheriff's
assurance that the defendant could rely upon the promise of the district attorney. After the
state had had the written confession marked for identification and identified by the
undersheriff as the instrument read to and signed by the defendant and before it was
introduced in evidence, defendant's counsel stated: If the Court please, I presume this is no
doubt an attempt to introduce into evidence some document purportedly signed by Mr.
Williams. If this involves a confession, I would like to ask, and I think it is only fair, that the
jury be excused and the matter of its admissibility be gone into by the court before we
proceed further. (Italics supplied.) The state made no objection to such request and the court
excused the jury. The undersheriff then testified briefly to the voluntary signing of the
confession on November 3, 1948, following his arrest on November 1. The deputy sheriff
was cross-examined at some length, and reiterated that he had brought Williams to the district
attorney at the former's request, that he signed the confession voluntarily after being advised
that he did not have to sign it and that it could be used against him, and that no promises of
any kind had been made. The defendant then took the stand and testified that he had signed it
because of the assurances given him: I signed it because of what you told me * * * I only
signed that on account of what you say * * * I only signed this because of what you say you
would do if I sign it. In ruling on an objection to certain cross-examination at this point, the
court stated to the district attorney: * * * the question is whether or not he was offered an
inducement. I think you should confine your examination to that. The court then questioned
the defendant and the defendant repeated to the court: Well, he told me, he says, if you will
tell me what happened, I will give you my promise, this word; he said that if you will tell me,
you won't go to the penitentiary for a long time; I will see that you don't do over two or three
years."
years. The court then of its own motion called the district attorney's secretary and examined
her concerning her taking down in shorthand the statements made by the defendant. Neither
party had theretofore called the secretary. After she was excused the court announced that it
would take the noon recess till 1:45 p. m., and stated: At that time the court will rule on this
matter. On reconvening, the court ordered the record to show the absence of the jury and the
fact that it had been excused for the purpose of taking evidence on the admissibility of an
alleged confession, and stated: This is the time appointed for the ruling upon the
admissibility of the said confession. It then ruled that the confession was admissible. The
jury was recalled, and the undersheriff and the defendant were both examined and
cross-examined before the jury and testified substantially as they had in the jury's absence.
Before pronouncing sentence upon the jury's verdict of guilty of murder of the first degree
and fixing the death penalty, defendant moved for a new trial, which motion was denied by
the court. The point now under discussion was not raised in the motion for new trial, in the
objection to the admission of the confession or at any other time prior to such assignment, as
error, in appellant's opening brief.
1. It will thus appear that at no point in the proceedings in the court below did the
defendant ever object to the introduction of the confession upon the ground that it had been
given before defendant was taken before a committing magistrate. Had objection been made
on such ground, or had such point been raised on the motion for new trial, not only would the
trial court have had an opportunity to pass on the same, but the facts concerning the earlier
proceedings would have been made a part of the record and would be before us on this
appeal. In addition, as we have noted above, virtually everything contained in the confession
was testified to by the defendant when he voluntarily took the stand in his own behalf. The
defendant's challenge of the absence of these earlier proceedings from the record, while
refusing to controvert the recital of such earlier proceedings as made in the respondent's
brief and in its oral argument to this court, must, under the circumstances, be determined
to be without merit.
proceedings from the record, while refusing to controvert the recital of such earlier
proceedings as made in the respondent's brief and in its oral argument to this court, must,
under the circumstances, be determined to be without merit.
2. In support of the contention that the confession was inadmissible because obtained after
defendant was taken into custody and prior to the time that he was taken before a committing
magistrate, appellant cites sec. 10744, N.C.L.1929, reading: The defendant must, in all
cases, be taken before the magistrate without unnecessary delay. He then refers to Upshaw v.
U.S., 335 U.S. 410, 69 S.Ct. 170, 93 L.Ed. 100. Respondent concedes that under the Upshaw
case and under its reference to McNabb v. U. S., 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819,
therein referred to, the federal rule precludes the admission of the confession when obtained
before the defendant was taken before a magistrate. However in the recent case of State v.
Boudreauo 67 Nev. 36, 214 P.2d 135, this court held, following the majority rule in the state
courts, that such situation does not of itself render the confession inadmissible. We adhere to
the ruling there made, and hold the point to be without merit.
3. 2. As to appellant's contention that the confession was inadmissible because made only
as the result of the district attorney's alleged promises, we may say simply that appellant's
testimony in this respect was flatly contradicted by Undersheriff Harris, who testified that no
promises were made and that he had brought appellant to the district attorney's office at
appellant's request. Both the district judge in the first place, and the jury in the second,
evidently disbelieved the testimony of appellant and believed that of the undersheriff. This
they had a right to do. The learned district judge, with commendable care and caution, not
only questioned the witnesses himself, but insisted on calling the district attorney's secretary
for examination. It is not our province, on this appeal, to pass upon the credibility of these
respective witnesses.
respective witnesses. We must hold that the point is without merit.
4. 3. We are satisfied that, despite the quantities of wine, whiskey and beer consumed by
appellant, there was ample evidence to justify the jury's finding of such wilfulness,
deliberation and premeditation as were necessary to support a verdict of first-degree murder.
State v. Jukich, 49 Nev. 217, 242 P. 590. Pardner and Preacher, after being refused
admittance to appellant's cabin, left and were returning to their own cabin, leaving appellant
at home, behind locked doors, with Willie and Lonnie. Appellant left, walked a distance of
between a quarter and a half mile to Smith's boxcar, found both doors locked, broke in
through a window, took Smith's gun from its rack, removed the clip to ascertain that it was
loaded, replaced the clip, walked slowly back, got the storekeeper up to get another bottle of
wine, drank some of the wine, went back to his own cabin, found that Willie was there safely
sleeping, then went across the street to Pardner's cabin, pushed open the door, went through
the kitchen to the opening to the bedroom, and shot Pardner in his bed, not once, but four or
five times.
By instruction No. 23, the court instructed the jury as follows: The jury is instructed that,
while intoxication is no defense to the committing of a crime, a person may be under the
influence of intoxicating liquor to the extent necessary to render him incapable of committing
the crime of murder in the first degree and if you find from the evidence that defendant had
consumed a quantity of liquor sufficient to render him incapable of wilfulness, deliberation or
premeditation, you cannot reach a verdict of first degree murder.
In instruction No. 24, after covering the necessity of proof beyond a reasonable doubt that
the killing was deliberate and premeditated, the jury was instructed:
In considering whether the killing was deliberate and premeditated, you should consider
the evidence, if any, of drunkenness. If the defendant was drunk at the time of the alleged
killing and was too much intoxicated to form such a deliberate and premeditated purpose,
then he cannot be found guilty of murder in the first degree.
to form such a deliberate and premeditated purpose, then he cannot be found guilty of murder
in the first degree.
It is true that drunkenness is no excuse for the commission of an offense, but
nevertheless, the jury must consider any evidence of drunkenness and determine whether it
was sufficient to so cloud the mind of the defendant as to interfere with the formation of a
deliberate and premeditated purpose to kill.
If, after considering all of the evidence, there is reasonable doubt in your mind as to the
existence on the part of the defendant of such a deliberate, premeditated purpose, you cannot
find the defendant guilty of murder in the first degree.
Appellant assigns no error in any of the instructions given, or in the rejection of any
requested instructions. Other than the admission of the confession, no error is claimed in the
admission or rejection of any of the evidence, or in the conduct or argument of the district
attorney, or in the consideration of the case by the jury. In addition to the briefs and oral
argument, we have carefully read and considered the entire transcript of the evidence and are
satisfied that the jury returned a just verdict.
The judgment and the order denying defendant's motion for a new trial are affirmed, the
petition for modification of the judgment by reducing the degree of the crime is 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.
____________
67 Nev. 388, 388 (1950) Granite Oil v. Douglas County
THE GRANITE OIL SECURITIES, INC., A Corporation, Appellant, v. DOUGLAS
COUNTY, A Political Subdivision of the State of Nevada; JAMES W. TEIPNER, Jr. and
JAMES W. TEIPNER, Sr., A Copartnership, Doing Business Under the Firm Name and Style
of T AND T ENGINEERING COMPANY; and DOUGLAS INDUSTRIES, INC., A
Corporation, Respondents.
No. 3596
June 8, 1950. 219 P.2d 191.
Action by the Granite Oil Securities, Inc., against Douglas County, a political subdivision
of the State of Nevada, and others, in tort for the destruction of plaintiff's airplane due to a
fire at an airport owned by the county and operated by another. The First Judicial District
Court for Douglas County, Clark J. Guild, Judge, rendered a judgment dismissing the action
as to the county, and the plaintiff appealed. The Supreme Court, Badt, J., held that the county
was authorized by the Municipal Airports Act to engage in the airport business in a
proprietary capacity and having so engaged was not protected by the rule of sovereign
immunity from liability for torts.
Judgment reversed, and cause remanded with directions.
1. Municipal Corporations.
When a municipal corporation acts in its private corporate or proprietary capacity it may be sued for its
torts.
2. Counties.
In absence of statute, a county engaged in business in proprietary capacity is not protected by rule of
sovereign immunity from liability for torts in that capacity.
Language of statute must be construed in such a manner as to bring it within legislative authority and
make it consistent with validity of statute in which it is used.
4. Counties.
Under the Municipal Airports Act providing for maintenance and operation of airports and navigation
facilities by municipalities and counties, declaration that operation of airport should be deemed to be
in furtherance of a public and governmental function is directed to general rule
restricting activities of counties to public and governmental purposes as subdivisions
of the state, and is in justification of powers granted and is not a declaration of
immunity of counties from liability for torts committed in exercise of such powers.
should be deemed to be in furtherance of a public and governmental function is directed to general rule
restricting activities of counties to public and governmental purposes as subdivisions of the state, and is in
justification of powers granted and is not a declaration of immunity of counties from liability for torts
committed in exercise of such powers. N.C.L.1929, secs. 289-293; Laws 1947, c. 215, sec. 24.
Exemption of municipality for torts committed in proprietary capacity cannot be claimed under a statute
unless exemption is clearly and expressly given.
6. Counties.
Under the Municipal Airports Act providing for operation of airports and air navigation facilities by
counties, county was authorized in its discretion to engage in airport business in proprietary capacity and
having so engaged was not immune from liability for torts committed in the capacity. N.C.L.1929, secs.
289-293; Laws 1947, c. 215, sec. 24.
John R. Ross and Paul D. Laxalt, both of Carson City, for Appellant.
Grover L. Krick, District Attorney of Douglas County, of Minden, and Ernest S. Brown, of
Reno, for Respondents.
OPINION
This appeal presents for our consideration the question, of first impression in this state, of
whether a county of this state in exercising a private or proprietary function, under the
circumstances and statutory authorization involved, may be liable for damages for its tort.
Appellant, as plaintiff below, filed its complaint against Douglas County and others alleging
the execution on June 15, 1948 of a lease from respondent Douglas County to Douglas
Industries, Inc., whereunder the latter was granted the right to use and operate what was
known as Tahoe-Douglas Airport and its facilities from July 1, 1948, to July 1, 1949, and that
the lessee thereafter operated said airport for profit under the terms of the said lease
agreement. The lease agreement, attached as an exhibit, stated in its preamble that the
county was the owner and in control of the airport and desired to secure revenue from
said property, and in that connection entered into the agreement.
as an exhibit, stated in its preamble that the county was the owner and in control of the airport
and desired to secure revenue from said property, and in that connection entered into the
agreement. Some of the provisions thereof were as follows:
1. The lessee had the right to the use of said airport and to operate a coffee shop and
cocktail bar thereon. 2. It agreed to carry public liability insurance in a reasonable amount
covering its acts and operations thereon. 4. The county agreed to maintain the airport and its
buildings thereon. 5. The lessee was given an option to renew for an additional year. 6. The
lessee agreed to pay $100 a month rental. 7. The First Party [Douglas County] agrees to
install facilities, tanks and pumps for gasoline, and radio equipment at said airport, and the
second Party agrees to pay to First Party one cent royalty on all gasoline sold at the airport by
the Second Party. 8. Douglas County agreed to employ a man on full time to perform such
work as might be required by both parties. 14. Second Party [Douglas Industries, Inc.] agrees
to use diligent efforts to promote increased aeronautical activities at the airport, and to secure
persons who wish to base their aeronautical activities at the airport, either as fixed-base users
or non-scheduled air carriers, or as lessees. 17. The lessee agreed to keep adequate records
and books of account open to the county's inspection and to render monthly accountings. 20.
It agreed to carry industrial and accident insurance on all employees and to keep the
premiums paid sixty days in advance. The lease also contained numerous protective clauses
for the benefit of the county.
The complaint then alleges that by virtue of the contract Douglas County did install
facilities, gasoline tanks, pumps and other equipment and employed a man to work in and
about the airport, and through its county commissioners entered into a contract with T and T
Engineering Company for the purchase and installation of two gasoline pumps with
necessary equipment, including electric switches, starting switches, electric motors,
wiring, etc., all of which were installed by the said engineering company with the
knowledge, consent and approval of Douglas County in what was known as a "gas pit";
and that by reason of negligence in the matter of such installation, the lack of safety
devices, etc.,
of two gasoline pumps with necessary equipment, including electric switches, starting
switches, electric motors, wiring, etc., all of which were installed by the said engineering
company with the knowledge, consent and approval of Douglas County in what was known
as a gas pit; and that by reason of negligence in the matter of such installation, the lack of
safety devices, etc., resulting in a continuous leaking and accumulation of gasoline and
explosive gases, an explosion and fire resulted, destroying plaintiff's airplane which was at
the time stored in the county's hangar on said airport. Separate and several counts of
negligence are alleged with considerable particularity, and the sufficiency of the pleading in
such regard is not challenged. Plaintiff filed a claim with the county, which was disallowed,
and the filing of the complaint followed. Damage of $13,000 was alleged for the total
destruction of the plane, plus the sum of $5,000 for loss of six months' use thereof. Douglas
County demurred (1) for want of facts, (2) for the court's lack of jurisdiction of the county or
the subject matter, and (3) that the plaintiff does not have legal capacity to sue this
defendant. The district court sustained the demurrer and thereafter entered judgment
dismissing the complaint against the defendant county. This appeal followed.
The legislature of Nevada, by Stats.1928, p. 10, passed An Act authorizing and
empowering any city or county or any town or any municipal corporation in the State of
Nevada to acquire land and construct and complete improvements thereon necessary or
convenient to the maintenance or operation of airports, the flying and landing of aircraft, and
the maintenance and operation of hangars for storing aircraft; permitting use for said purposes
of property owned for park purposes; providing for the incurring of indebtedness and the
issuing of bonds for said purposes, and for the levying of taxes therefor; declaring such use to
be a public use; and matters in connection therewith. The act is found in secs.
secs. 289-293, N.C.L.1929. Section 1 of this act authorizes any city, county, town or
municipal corporation in the state to acquire and use real property within or without its
corporate limits upon which might be erected and maintained necessary airport facilities
including hangars, mooring masts, places for flying, taking off and landing of aircraft and the
storage of the same when not in active use, together with lights, radio equipment, service
shops, etc., to such extent as might be necessary or convenient; to levy taxes for the purpose;
reciting that lands previously acquired for park purposes might be used for such airport
purposes, appurtenances, appliances or other conveniences necessary or useful in connection
therewith.
Section 1 of An Act in relation to county contracts, approved March 16, 1895,
Stats.1895, c. 96, p. 88, had prohibited any member of any board of county commissioners
from voting on any contract extending beyond his term of office. Stats.1945, c. 151, p. 239,
repealed said act insofar as it applied to airports and permitted the execution of agreements or
leases of real and personal property within the counties for use and occupancy as airports,
airport facilities, or airport service to whom and upon such conditions and terms as they
deem proper, for a term or terms not exceeding twenty (20) years.
In 1947 the legislature of Nevada enacted an act known as the Municipal Airports Act,
Stats.1947, c. 215, p. 713. The title indicates that it is an act providing, among other things,
for acquisition, construction, maintenance, operation, and regulation by municipalities and
counties of airports and air navigation facilities * * *, declaring such to be a public purpose; *
* * authorizing leasing of airports, supplying of services in airport operation, * * *
authorizing joint action by municipalities and other public agencies * * *; and to make
uniform the law with reference to public municipal airports. As used in the act
municipality means any county, city or town of this state. Broad powers are given to such
municipalities for the acquisition and operation of airports.
given to such municipalities for the acquisition and operation of airports. Such powers are
detailed over many sections and many pages and need not be detailed here. Powers therein
given to the governing body are defined to mean the governing body of a county or
municipality. Agreements are authorized between any two or more such public agencies
participating in the acquisition, maintenance and operation of airports, which agreements may
specify, among other things, the proportionate interest of each public agency in the property,
facilities and privileges involved, the proportion to be borne by each agency in the costs of
acquisition, construction, installation of equipment, etc., as well as the proportion of the
expense of maintenance, operation, etc., and the distribution of the proceeds received and
the assumption or payment of any indebtedness arising from the joint venture. The public
agencies thus acting jointly pursuant to the authority of the act are further authorized to create
a joint board consisting of members appointed by the governing body of each participating
agency. The powers of such joint board are defined in some detail and in particular such
board may exercise on behalf of its constituent public agencies all the powers of each with
respect to such airport * * *. The joint board may enter into leases. Its resolutions, rules and
regulations, when approved by the respective constituent public agencies, have the same force
and effect in the several jurisdictions involved as the ordinances, resolutions, etc., of each
such agency would have in its own jurisdiction. A joint fund is created into which moneys are
deposited as provided by the joint agreement. Each of the constituent public agencies must
provide its own share of the fund. Federal, state or other contributions or loans, as well as
revenues obtained from the joint operation of the airport must be paid into the joint fund, and
disbursements therefrom are made by order of the joint board. It becomes important to
consider in its entirety sec. 24 of the act which reads as follows:
24. The acquisition of any land or interest therein pursuant to this act, the planning,
acquisition, establishment, development, construction, improvement, maintenance,
equipment, operation, regulation, protection, and policing of airports and air navigation
facilities, including the acquisition or elimination of airport hazards, and the exercise of
any other powers herein granted to municipalities and other public agencies, to be
severally or jointly exercised, are hereby declared to be public and governmental
functions, exercised for a public purpose, and matters of public necessity; and in the case
of any county, are declared to be county functions and purposes as well as public and
governmental; and in the case of any municipality other than a county, are declared to be
municipal functions and purposes as well as public and governmental.
pursuant to this act, the planning, acquisition, establishment, development, construction,
improvement, maintenance, equipment, operation, regulation, protection, and policing of
airports and air navigation facilities, including the acquisition or elimination of airport
hazards, and the exercise of any other powers herein granted to municipalities and other
public agencies, to be severally or jointly exercised, are hereby declared to be public and
governmental functions, exercised for a public purpose, and matters of public necessity; and
in the case of any county, are declared to be county functions and purposes as well as public
and governmental; and in the case of any municipality other than a county, are declared to be
municipal functions and purposes as well as public and governmental. All land and other
property and privileges acquired and used by or on behalf of any municipality or other public
agency in the manner and for the purposes enumerated in this act shall and are hereby
declared to be acquired and used for public and governmental purposes and as a matter of
public necessity, and, in the case of a county or municipality, for county or municipal
purposes, respectively.
Strangely enough not only does the complaint make no mention of the fact that the
operations of Douglas County and of its lessee, or the agreement involved, were in pursuance
of the 1947 act, but the elaborate briefs of both counsel fail to mention it, and it was not until
the oral argument that such Uniform Airport Act was called to the attention of the court.
The opinion of the district court is based largely upon its conclusion that under the terms
of the agreement it appeared that Douglas County engaged only to maintain the airport while
Douglas Industries, Inc., engaged to operate it. The italics were used by the district court.
Respondent county however did not advance such theory to this court and both parties
conceded, impliedly at least, that the activities of Douglas County were such as to include
therein actual functions in the operation of the airport. The learned district judge, however,
wisely considered the 1947 act which, as noted, both parties ignored in their briefs.
parties ignored in their briefs. In the last analysis the learned district judge found in favor of
sovereign immunity of counties from suit in failure of direct statutory authority waiving their
immunity and in failure of any contrary holding by this court.
1. It is well-settled law, frankly conceded by the respondent county, that when a municipal
corporation acts in its private, corporate or proprietary capacity, it may be sued for its torts.
Respondent contends however that (with the exception of some jurisdictions which are not in
harmony with the rule in this state) such rule has never been extended to counties, and that
the rule in Nevada is that counties are political subdivisions of the state and are not liable for
torts in the absence of legislative authority; and that by reason of such rule of law the
question of whether or not an airport by a county is a proprietary function becomes totally
immaterial. In support of this contention respondent relies on Schweiss v. First Judicial
District Court, 23 Nev. 226, 45 P. 289, 34 L.R.A. 602, and McKay v. Washoe General
Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d 78. It is our opinion that neither of these two
cases may be said to control the present controversy.
In Schweiss v. District Court petitioner sought a writ prohibiting his prosecution for
selling liquor without a license required by an ordinance of Virginia City, on the ground that
the legislature (Stats. 1895, p. 73) had passed an act incorporating Storey County and
including therein the city of Virginia and the town of Goldhill. The court analyzed the
legislative act in detail and, in declaring it unconstitutional, made the remark, unnecessary to
its decision, relied upon by counsel. The court there said: Clearly, a county is not a
municipal corporation. If it were, there would have been no occasion for this act changing
Storey county into a municipality. It is, at the most, only a quasi corporation, and possesses
only such powers, and is subjected to only such liabilities, as are specially provided for by
law. It does not, under its facts, touch the question we are considering.
But more strongly respondent relies upon McKay v. Washoe General Hospital, 55 Nev.
336
Washoe General Hospital, 55 Nev. 336, 33 P.2d 755, 756, 36 P.2d 78. Respondent takes the
following out of its context and contends that it is controlling here: It is the well-recognized
general rule that a county, which is but a political subdivision of a state (a quasi corporation,
Schweiss v. First Judicial District Court, 23 Nev. 226, 45 P. 289, 34 L.R.A. 602), cannot be
sued without legislative consent (15 C.J. 568,
1
Story on Agency [9th Ed.] 319).
It should be noted however that the action was not against Washoe County but against
Washoe General Hospital and certain other persons as members of the board of hospital
trustees for damages resulting from the negligence of a hospital nurse. The complaint alleged
the organization of Washoe General Hospital pursuant to Chap. 169, Stats. 1929, which
authorized the establishment of a hospital for the benefit of the inhabitants of any county and
authorized such hospital to treat pay patients. This court there defined the issue as whether
the defendants can be sued at all. It further stated: The liability of an organization created
by statute must be determined under an interpretation of the statute creating it, and, though
the defendant hospital was not created by a legislative act, it was organized pursuant to such
an act, and we must look to the intention of the Legislature in enacting the law authorizing the
organization of defendant hospital, in reaching a conclusion in this case.
The court further said that it was the plain intention of the legislature to set up a public
institution which should own no property, have no income and no method of raising money,
and hence no liability to pay anything, and not the legislative intent to make such institution
liable in damages. The opinion closed by saying: "Furthermore, the failure of the
Legislature to provide that the defendant [the hospital, not the county] might sue and be
sued is a conclusive reason why this action cannot be maintained."
____________________

1
Strangely enough, this citation (while not in point because the county was not a party defendant in the
McKay case) goes on to say * * * a county is liable for its torts when it is acting, not as a governmental agent,
but as a private corporation, or is performing special duties imposed on it with its consent, or voluntarily
assumed by it. Id. 569, n. 69.
Furthermore, the failure of the Legislature to provide that the defendant [the hospital, not the
county] might sue and be sued is a conclusive reason why this action cannot be maintained.
On rehearing the court again emphasized the question involved as being whether the
defendants can be sued at all. It is clear therefore that the question involved in the instant
case, namely, whether a county can be sued in damages for tort for acts performed in a private
and proprietary capacity was not involved. As noted, Washoe County was not a party to the
action, and the court did not even discuss the question of whether or not the operation of a
county hospital was a governmental function. As to this question see, generally, 26 Am.Jur.
595; Borchard, Governmental Liability in Tort; 34 Yale Law Journal, 246.
Respondent now urges (in its oral argument) that we must look to the provisions of 1947
act to reach a determination as to the county's liability just as this court in the McKay case
examined the 1929 statute to determine the liability of Washoe General Hospital. This is true
only in a sense, for if Douglas County is otherwise liable in damage for tort by reason of its
negligent acts in its proprietary capacity, we may then look to the 1947 act to see whether
immunity from suit was afforded by the legislature.
Respondent stands squarely on the contention that a county, being a political subdivision
of the state, cannot be sued in tort, regardless of the nature of the function, without legislative
authorization.
In the annotation to Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101
A.L.R. 1151, 1167 (which held the county liable for its negligence in treating a pay patient in
its hospital, as acting in a proprietary capacity), the status of case law on the subject is stated
as follows: Although in some cases (see Dillwood v. Riecks (1919) 42 Cal.App. 602, 184 P.
35; Hollenbeck v. Winnebago County (1880) 95 Ill. 148, 35 Am.Rep. 151, and O'Brien v.
Rockingham County (1923) 80 N.H. 522, 120 A.254, infra), the view has been expressed
that as a county is merely a subdivision of the state, its activities are invariably public and
governmental, in the following cases the possibility of the exercise, by a county, of private
or proprietary functions, with a consequent loss of immunity from liability, is recognized:"
Cases are then cited from the United States Circuit Court, Alabama, Hawaii, Idaho,
Illinois, Michigan, Missouri, New York and Pennsylvania.
120 A.254, infra), the view has been expressed that as a county is merely a subdivision of the
state, its activities are invariably public and governmental, in the following cases the
possibility of the exercise, by a county, of private or proprietary functions, with a consequent
loss of immunity from liability, is recognized: Cases are then cited from the United States
Circuit Court, Alabama, Hawaii, Idaho, Illinois, Michigan, Missouri, New York and
Pennsylvania. To these must now be added North Carolina in a case later discussed. From the
states indicated as holding contra, we are disposed to remove California, for in two later cases
than in the one above cited, California has clearly indicated its adherence to the rule for the
liability of a county for torts of its officers where the county is acting in a proprietary
capacity. Leach v. Dinsmore, 22 Cal.App.Supp.2d 735, 65 P.2d 1364; Calkins v. Newton, 36
Cal.App.2d 262, 97 P.2d 523, 526. In both of these cases the functions performed by the
counties were held to be governmental, so that these two cases cannot be said to be directly in
point, but the meaning is unmistakable. Calkins v. Newton is of particular importance for its
analysis of Henderson v. Twin Falls County, supra, and its apparent agreement with the Idaho
case as well as other recent decisions
2
holding that the rule of sovereign nonliability, as
such, should be abandoned and that a county should be held to the same degree of liability for
tort as a municipality in the exercise of a function that is not governmental, but proprietary.
While it is said that the doctrine holding counties liable for torts committed in the exercise
of proprietary functions has been of much later development than a similar doctrine for
municipalities, we find that doctrine clearly expressed in the early case of Hannon v. County
of St. Louis, 62 Mo. 313, decided in 187
6
. There the county made a contract for laying a
water pipe from a city to the county insane asylum, and an excavation caved in and killed
one of the workmen.
____________________

2
Bell v. City of Pittsburgh, 297 Pa. 185, 146 A. 567, 64 A.L.R. 1542; Wilcox v. Erie County, 252 App.Div.
20, 297 N.Y.S. 287; Smith v. Westchester County, 253 App.Div. 725, 300 N.Y.S. 201.
city to the county insane asylum, and an excavation caved in and killed one of the workmen.
It was held that the duty in which the county was engaged was not one imposed by law upon
all counties but a self-imposed one and that quoad hoc the county was a private corporation,
engaged in a private enterprise. In Coburn v. San Mateo County, C.C., N.D.Cal., 75 F. 520,
decided in 1896, the county kept tearing down the plaintiff's gate and fence to open up a road
to Pebble Beach, and the court not only granted an injunction but awarded damages. We cite
these as among the early cases. Later cases are overwhelmingly in support of the liability of
counties for tort when acting in their proprietary capacity. Coburn v. San Mateo County, C.C.
1896, 75 F. 520; Jones v. Jefferson County, 1920, 206 Ala. 13, 89 So. 174; Matsumura v.
County of Hawaii, 1908, 19 Hawaii 18, 21 Ann.Cas. 1338; Anduha v. Maui County, 1927, 30
Hawaii 44; Henderson v. Twin Falls County, 56 Idaho 124, 50 P.2d 597, 101 A.L.R. 1151;
Symonds v. Board of Sup'rs of Clay County, 1874, 71 Ill. 355; Jennings v. Peoria County,
1915, 196 Ill.App. 195; Gunther v. Cheboygan County, 1923, 225 Mich. 619, 196 N.W. 386;
Moross v. Hillsdale County, 1928, 242 Mich. 277, 218 N.W. 683; Hannon v. St. Louis
County, 1876, 62 Mo. 313; Hughes v. Monroe County, 1895, 147 N.Y. 49, 41 N.E. 407, 39
L.R.A. 33; Markey v. Queens County, 1898, 154 N.Y. 675, 49 N.E. 71, 39 L.R.A. 46; Lefrois
v. Monroe County, 1900, 162 N.Y. 563, 57 N.E. 185, 50 L.R.A. 206; Moest v. City of
Buffalo, 1906, 116 App.Div. 657, 101 N.Y.S. 996; O'Brien v. Westchester County, 1919, 189
App.Div. 13, 177 N.Y.S. 507; Cleveland v. Town of Lancaster, 1933, 239 App.Div. 263, 267
N.Y.S. 673; Kelley v. Cumberland County, 1910, 229 Pa. 289, 78 A. 276; Bell v. City of
Pittsburgh, 1929, 297 Pa. 185, 146 A. 567, 64 A.L.R. 1542; Cousins v. Butler County, 1919,
73 Pa.Super. 86.
But more convincing than any of the foregoing authorities and directly on the point
involved is the case of Rhodes v. City of Asheville, 230 N.C. 134, 52 S.E.2d 371, 376, under
a statute in all material respects similar to our own Uniform Airport Act of 1947 and
containing a section virtually identical with sec.
376, under a statute in all material respects similar to our own Uniform Airport Act of 1947
and containing a section virtually identical with sec. 24 hereinabove quoted in full. Plaintiff
brought the action against the city, the county and others for the wrongful death of his
intestate who appeared at the airport late at night to present himself as a passenger and was
shot by a guard employed by the airport which was conducted jointly by the city and the
county. The court first held that in the operation of an airport the county was acting in a
proprietary as distinguished from a governmental capacity. In the North Carolina case, as in
this case, the court remarked that the identical question before it was one of first impression
in that jurisdiction, and we refer to the opinion in that case for its very careful discussion of
the so-called airport cases decided in the various jurisdictions in this country as applied to the
liability of municipal corporations, and for its conclusion that no case has been cited contrary
to the holding that the construction, operation and maintenance of an airport by a municipality
is a proprietary as distinguished from a governmental function, and that municipalities may
be held liable in tort for the negligent operation thereof except where expressly exempted by
statute. Turning its attention then to the liability of counties for such activities, the court said:
The appellants take the further position that a county in this jurisdiction is empowered only
to perform governmental functions and, therefore, cannot act in a proprietary capacity.
After concurring in the view that a county when acting in its governmental capacity cannot
be sued without legislative sanction and that ordinarily it acts only in a governmental
capacity, the court said: But when it undertakes, with legislative sanction, to perform an
activity which is proprietary or corporate in character, such a county may be liable in tort to
the same extent as a city or town would be if engaged in the same activity. And our statutes
authorizing municipalities to construct, operate and maintain airports are made applicable
to counties by G.S. 63-57, which reads as follows: '{a) The purposes of this article are
specifically declared to be county purposes as well as generally public, governmental and
municipal, {b) The powers herein granted to all municipalities are specifically declared to
be granted to counties in this state, any other statute to the contrary notwithstanding.'
to construct, operate and maintain airports are made applicable to counties by G.S. 63-57,
which reads as follows: (a) The purposes of this article are specifically declared to be county
purposes as well as generally public, governmental and municipal, (b) The powers herein
granted to all municipalities are specifically declared to be granted to counties in this state,
any other statute to the contrary notwithstanding.'
It might be wise to exempt municipalities from tort liability in connection with the
construction, operation and maintenance of airports, if so, we think the exemption should be
expressly granted by the Legislature, rather than by judicial decree. Airports are here to stay
and will be used extensively by the public in the future. However, transportation by air has
not been developed to a point so as to make the construction, operation and maintenance of
the average airport a profitable enterprise. That is why private capital is not available for this
purpose.
2. We agree with the North Carolina court that if immunity is to be granted, it must be
accomplished by the legislature. Perhaps even more convincing than some of the reasoning of
the North Carolina court are the provisions of the 1947 act authorizing agreements between
two or more cities and counties defining the proportionate interest of each in the property,
facilities and privileges, the duties and liabilities of each in the operation, including the
assumption or payment of indebtednesses arising from the joint venture, the operation of
the joint fund into which all proceeds are put and from which all disbursements are drawn,
etc. It is difficult to conceive of language which more aptly and more effectively places the
county in precisely the same position as the municipality in the operation of such joint
enterprise of maintaining and operating an airport. The entire structure of such a joint
enterprise would fail if as a matter of law the municipality would be liable for its torts while
the county would not.
3-5. Respondent contends that the very wording of the 1947 act declaring that the
operation of the airport should be deemed to be in furtherance of a public and
governmental function is a declaration of sovereign immunity.3 Replying to a similar
contention the Supreme Court of North Carolina on rehearing in Rhodes v. City of
Asheville, 230 N.C. 759, 53 S.E.2d 313, said: "We cannot attribute to the language used
the force and effect urged by appellants.
the 1947 act declaring that the operation of the airport should be deemed to be in furtherance
of a public and governmental function is a declaration of sovereign immunity.
3
Replying to a
similar contention the Supreme Court of North Carolina on rehearing in Rhodes v. City of
Asheville, 230 N.C. 759, 53 S.E.2d 313, said: We cannot attribute to the language used the
force and effect urged by appellants. Instead, we must construe it in such manner as to bring it
within the legislative authority of the General Assembly and make it consistent with the
validity of the statute in which it is used. This is in accord with the applicable rule of
construction.
Such rule of construction has been enunciated on many occasions by this court. The
reference to the apparent purpose of the declaration that airport operation is a public and
governmental function as being to support the validity of the statute, is undoubtedly directed
to the general rule restricting the activities of counties to public and governmental purposes as
subdivisions of the state. Like the North Carolina court, we believe the declaration to be
simply in justification of the powers granted. As applied to statutes creating municipal
corporations, each of the three separate opinions of the justices of this court in Pardini v. City
of Reno, 50 Nev. 392, 263 P. 768, recognized the rule that exemption from liability cannot be
claimed unless it is clearly and expressly given. In this view we find it unnecessary, for the
purposes of this case, to adopt the further holding of the North Carolina court that the
determination of what is or what is not a governmental function is a judicial question which
can in no event be determined by the legislature.
____________________

3
Thus giving to the statutory declaration of governmental and public function as great an effect as the
Tennessee statute, which, after declaring such function, went on to provide: * * * and no action or suit shall be
brought or maintained against any municipality, or its officers, agents, servants or employees, in or about the
construction, maintenance, operation, superintendence, or management of any municipal airport. Stocker v.
Nashville, 174 Tenn. 483, 126 S.W.2d 339, 124 A.L.R. 345.
In justice to the learned district judge we must say that his opinion does not indicate that
the Rhodes case was ever called to his attention. This is probably due to the fact that his
opinion is dated July 21, 1949. The Rhodes case was first decided March 23, 1949, and the
rehearing denied May 11, 1949, and it is quite possible that the case did not come to the
attention of the court, perhaps not to the attention of counsel when this case was argued
below.
Despite the fact that appellant's opening brief discussed Rhodes v. Asheville at length as
being the only reported case on all fours with the present appeal, respondent's answering brief
ignored the case entirely. Likewise as to Henderson v. Twin Falls County, 56 Idaho 124, 50
P.2d 597, 101 A.L.R. 1151. Respondent simply comments that the case is poorly reasoned,
was decided by a divided court, and that the dissenting opinion relied upon McKay v. Washoe
General Hospital, 55 Nev. 336, 33 P.2d 755, 36 P.2d 78. We do not think the Idaho case
poorly reasoned and we think the dissenting opinion misconceived the effect of the McKay
case.
6. We hold that Douglas County was authorized by statute, in its discretion, to engage in
the airport business in its proprietary capacity, and, having so engaged, was not protected by
the rule of sovereign immunity from liability for its torts in that capacity; and that the
statutory declaration that such activity, if entered into, was a public and governmental
function, for a public purpose, and a matter of public necessity, was not equivalent to a
declaration of immunity.
The judgment dismissing the action as to respondent Douglas County is reversed, and the
cause is remanded to the district court for the entry of an order by that court overruling
respondent's demurrer to appellant's complaint and directing respondent to serve and file its
answer thereto within such time as may appear proper. Appellant is allowed its costs.
August 1, 1950.
Per Curiam:
Rehearing denied.
____________
67 Nev. 404, 404 (1950) Jones v. District Court
ROBERT E. JONES, as District Attorney of Clark County, Nevada, Petitioner, v. EIGHTH
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County
of Clark, and the HONORABLE TAYLOR H. WINES, Judge Thereof, Presiding In
Department No. 1, Respondents.
No. 3620
June 23, 1950. 219 P.2d 1055.
Petition in prohibition by Robert E. Jones, as District Attorney of Clark County, Nevada,
against the Eighth Judicial District Court of the State of Nevada, in and for the County of
Clark, and the Honorable Taylor H. Wines, Judge thereof, presiding in the Department No. 1
to test the sufficiency of a complaint seeking to remove petitioner from office of District
Attorney for alleged neglect of duty and malfeasance in office. The Supreme Court, Badt, J.,
held that the complaint was insufficient as to the first, third and fourth counts but was
sufficient as to the second count.
Peremptory writ of prohibition issued as to the first, third and fourth counts and as
to the second count, the peremptory writ denied and the alternative writ vacated.
1. Prohibition.
Prohibition was the proper remedy to test the jurisdiction of the trial court in a proceeding seeking to
remove the petitioner from office of district attorney for alleged neglect of duty and malfeasance in office.
2. District and Prosecuting Attorneys.
In order to warrant a district attorney's removal from office, the act of malfeasance must have a direct
relation to and be connected with the performance of official duties and the conduct charged must be
something that the defendant did in his official capacity.
Count of complaint seeking to remove petitioner from office of district attorney for alleged negligence in
filing an accusation against sheriff of the county was insufficient as failing to allege an act of malfeasance
or misdemeanor in office where it did not appear that the sheriff was about to perform an official act or that
he was intimidated into doing, or refraining from doing it. N.C.L.1929, secs. 2073, 2074, 2076, 10013,
10048, 10424, 11327, 11328; secs. 4860, 4861, as amended.
A wide discretion is vested in prosecuting attorneys with reference to the prosecution of parties for crime
which must be exercised in good faith and it is not an arbitrary discretion.
5. Evidence.
It is well known that innumerable matters are brought to attention of district attorneys throughout the year
and that they in exercise of their discretion, determine in many cases that neither a prosecution nor an
investigation is warranted.
Count of complaint seeking removal of petitioner as district attorney for neglect of duty or nonfeasance in
office because of failure to investigate or prosecute one voting without right of franchise because he had
allegedly been convicted of a felony was insufficient where there was ample implication in the count that
the district attorney did exercise his discretion against prosecution of the voter. N.C.L.1929, sec. 2494;
Const. art. 2, sec. 1.
Count of complaint for removal of petitioner as district attorney for alleged neglect of duty or
nonfeasance in office in failing to initiate abatement proceedings against an alleged place of prostitution
was insufficient where it did not appear that the county commissioners ever directed the district attorney to
notify the persons responsible for the place of prostitution. N.C.L.1929, sec. 2043.
8. Officers.
Statutory removal proceedings are highly penal in their effect and quasi criminal in their nature.
9. Officers.
In statutory removal proceedings of public officers matters of proof, defense, and questions as to whether
the remedy of removal should be adjudged, are for the trial judge.
Count of complaint for removal of district attorney for alleged neglect of duty and malfeasance in office
for presenting a bill for expenses incurred, knowing that no expense was incurred and collecting the
amount from the county was sufficient without negativing that the payment of expenses by another might
have been a mere gratuity or a loan to the petitioner to be repaid by him.
Jones, Wiener, Jones & Zenoff, of Las Vegas, Thatcher, Woodburn & Forman, and M. A.
Diskin, all of Reno, for Petitioner.
George E. Marshall, of Las Vegas, for Respondents.
OPINION
1. This petition tests the sufficiency of the allegations of a complaint in the district court
seeking to remove petitioner from the office of district attorney of Clark County for neglect
of duty and malfeasance in office. Petitioner contends that the trial court is without
jurisdiction to proceed by reason of the fact that no one of the four counts set forth in the
complaint alleges acts of neglect of duty, misfeasance, nonfeasance, or malfeasance such as to
justify his removal from office as district attorney of Clark County. That prohibition is a
proper remedy in the premises was determined by this court in Buckingham v. Fifth Judicial
District Court, 60 Nev. 129, 102 P.2d 632.
The proceedings below were commenced under the provisions of secs. 4860 and 4861,
N.C.L.1929, as amended.
1
The district court overruled the defendant's demurrer and was
about to proceed to hear the evidence in a summary manner as required by the statute when
we halted the proceedings by an alternative writ. The petition for the peremptory writ was
thereafter submitted upon presentation of written briefs and oral argument.
____________________

1
Sec. 4860. Any person now holding or who shall hereafter hold any office in this state, who shall refuse or
neglect to perform any official act in the manner and form prescribed by law, or who shall be guilty of any
malpractice or malfeasance in office, may be removed therefrom as hereinafter prescribed.
Sec. 4861. Whenever any complaint in writing, duly verified by the oath of any complainant, shall be
presented to the district court, alleging that any officer within the jurisdiction of said court has been guilty of
charging and collecting any illegal fees for services rendered or to be rendered in his office, or has refused or
neglected to perform the official duties pertaining to his office as prescribed
the peremptory writ was thereafter submitted upon presentation of written briefs and oral
argument. The petition recites the status of the defendant as the district attorney of Clark
County, the official status of the respondent court and judge, the filing of the removal
complaint and the presentation and overruling of the defendant's demurrer thereto. A copy of
the amended removal complaint is annexed as an exhibit, which, after recital of formal
matters, sets out four counts. We have thought best to dispose of the first, third and fourth
counts before directing our attention to the second.
The first count is recited in the following language: That the defendant on or about the
2nd day of September, 1949, made a criminal accusation against one Glen Jones, the duly
elected, qualified and acting Sheriff of the County of Clark, State of Nevada, in that the said
defendant accused the said Glen Jones of being an accomplice in the burglary of the residence
of one Jack C. Cherry, in the City of Las Vegas, County of Clark, State of Nevada, and
demanded the resignation of the said Glen Jones as Sheriff of the County of Clark, State of
Nevada, or in the alternative that the said defendant would then and there file a burglary
complaint against the said Glen Jones accusing him of participation in the said burglary of the
said Jack C. Cherry home, which said burglary was committed on or about the 29th day of
July, 1949. The said defendant then and there, well knowing that there was no basis
whatsoever or at all for such accusation and no evidence to support such accusation, and that
said accusation was negligently and recklessly made with the intent then and there to
intimidate the said Glen Jones in his official capacity as Sheriff of the County of Clark,
State of Nevada, and further to bring about the unwarranted resignation of said Glen
Jones, as Sheriff of said County of Clark, State of Nevada."
____________________
by law, or has been guilty of any malpractice or malfeasance in office, it shall be the duty of the court to cite the
party charged to appear before him on a certain day, not more than ten or less than five days from the time when
said complaint shall be presented, and on that day, or some subsequent day not more than twenty days from that
on which said complaint is presented, shall proceed to hear, in a summary manner, the complaint and evidence
offered by the party complained of, and if, on such hearing, it shall appear that the charge or charges of said
complaint are sustained, the court shall enter a decree that said party complained of shall be deprived of his
office.
recklessly made with the intent then and there to intimidate the said Glen Jones in his official
capacity as Sheriff of the County of Clark, State of Nevada, and further to bring about the
unwarranted resignation of said Glen Jones, as Sheriff of said County of Clark, State of
Nevada.
In discussing this count, counsel for the respective parties have included in their briefs
rather exhaustive treatises upon the distinctions between neglect of duty, misfeasance,
nonfeasance and malfeasance. We do not find it necessary to indulge in a lengthy
consideration of the differences and the distinctions. They were considered at some length by
this court in Buckingham v. Fifth Judicial District Court, 60 Nev. 129, 102 P.2d 632.
2, 3. The first count, as above set forth, patently attempts to allege an act of malfeasance,
somewhat synonymous with malpractice in office, and constituting an act of commission as
distinguished from an act of omission. Respondents frankly concede that in order to warrant
removal from office the act of malfeasance must have a direct relation to and be connected
with the performance of official duties; that the conduct charged must be something that the
defendant did in his official capacity. Indeed respondents cite the case of Wilson v. Highland
Park, 284 Mich. 96, 278 N.W. 778, 116 A.L.R. 352, as supporting this rule. The rule is
supported by many other authorities and is based on sound reason. We think the first count of
the complaint fails to measure up to this requirement. The district attorney is not alleged to
have filed any charge or accusation before any committing magistrate nor did he threaten to
prosecute the sheriff on any such complaint.
2
It does not appear that the sheriff was about to
perform some official act and that he was intimidated into doing or refraining from doing
any official act.
____________________

2
Sec. 2073, N.C.L.1929, constitutes the district attorney in each county as the public prosecutor. Sec. 2074
requires him to attend the district courts for the transaction of criminal business and, in some instances, the
justices' courts, and to conduct all prosecutions on behalf of the people for public offenses. Sec. 2076 requires
him to draw indictments when required by the grand jury. Sec. 11328
official act and that he was intimidated into doing or refraining from doing any official act.
Respondents in their answering brief assert that the allegations of this count show that the
district attorney was violating the provisions of sec. 10013, N.C.L.1929, which declares that a
person shall be guilty of gross misdemeanor who by threat, force, etc., shall attempt to deter
or prevent an officer from performing a duty imposed upon him by law. It is clear however
that such situation is not alleged. Respondents also cite sec. 10424 defining coercion, and sec.
10048, which defines the misdemeanor of intimidating a public officer with intent to induce
him, contrary to his duty to do or make or to omit or delay any act, decision or
determination, but this count alleges no facts to bring the case within the purview of these
sections. It is clear to us that this count of the complaint was not drafted with any thought of
charging petitioner with either a misdemeanor or a gross misdemeanor. Respondents insist
that this count of the complaint reflects upon petitioner herein in his official capacity as
district attorney. They also insist that if the district attorney had filed the threatened complaint
it would then have been his duty under the statute to prosecute the same. Giving full force to
these assertions, it still does not appear that the district attorney performed any such act in his
official capacity as to constitute malpractice or malfeasance, or as to constitute anything more
than heated, possibly rash, statements to the sheriff. We are of the opinion that this count does
not state sufficient facts to constitute a cause for removal.
Passing the second count for the moment, we turn to the third count of the complaint. This
count is in the following language: That during the month of July, 1949, complaint was
made to defendant as District Attorney of the County of Clark, State of Nevada, that one
Dave Stearns, a resident of Clark County, Nevada, did violate the election laws of said
State of Nevada in that he voted in a general election held in Precinct No.
____________________
provides for the filing of informations by the district attorney pursuant to the provisions of sec. 11327, which
authorizes the district courts to try prosecutions upon information as well as under indictment. The filing of a
complaint (apparently with a committing magistrate) does not appear to be imposed by any statute as an
official duty of the district attorney.
1949, complaint was made to defendant as District Attorney of the County of Clark, State of
Nevada, that one Dave Stearns, a resident of Clark County, Nevada, did violate the election
laws of said State of Nevada in that he voted in a general election held in Precinct No. 18 in
the City of Las Vegas, County of Clark, State of Nevada, on or about November 5, 1946, he,
the said Dave Stearns, having no right of franchise on or about November 5, 1946, by reason
of having been, prior to said general election held on or about November 5, 1946, convicted
of a felony, and that on or about said November 5, 1946, the said Dave Stearns' civil rights
had not been restored to him; that defendant, although having such complaint before him, did
wilfully and deliberately fail to perform his duty by failing to investigate or prosecute the said
Dave Stearns for said alleged violation of the election laws of the State of Nevada, to-wit,
Section 2494, Nevada Compiled Laws, 1929, and that said defendant did neglect the duties of
his office by deliberately and wilfully refusing to investigate or prosecute the said alleged
violation, which came to his attention and of which he had knowledge subsequent to the
month of July, 1949, and which he was required by law to investigate or prosecute, as is
prescribed by the laws of the State of Nevada, violated his sworn and statutory duty as
District Attorney for the County of Clark, State of Nevada.
4-6. This count patently attempts to allege an act of nonfeasance, or, as put by respondents
in their brief, neglect to perform an official duty * * * an act of omission. Respondents refer
us to Speer v. State, 130 Ark. 457, 198 S.W. 113, State on Inf. McKittrick v. Wallach, 353
Mo. 312, 182 S.W.2d 313, 155 A.L.R. 1, and other cases, which indicate the duty of the
prosecuting attorney to initiate proceedings against parties who he knows or has reason to
believe have committed crimes. These cases hold that the wide discretion vested in
prosecuting attorneys with reference to the prosecution of parties for crime must be
exercised in good faith, and is not an arbitrary discretion.
of parties for crime must be exercised in good faith, and is not an arbitrary discretion. Many
of these cases arose in connection with the district attorney's refusal to prosecute anti-liquor
or anti-gambling laws. In the allegations of this count, however, we find ample implication
that the defendant district attorney did, as a matter of fact, exercise his discretion against the
prosecution which he is accused of neglecting. Section 56 of the General Election Law of
1917, being sec. 2494, N.C.L., provides that every person not entitled to vote who
fraudulently votes shall be guilty of a felony. This is apparently the only statute seeking to
implement sec. 1 of article II of the Constitution of Nevada, being N.C.L. sec. 42, which
provides that no Person who has been or may be convicted of treason or felony in any state or
territory of the United States, unless restored to civil rights, shall be entitled to the privilege
of an elector. The complaint alleges that one Dave Stearns voted in the November, 1946
election without right of franchise because he had theretofore been convicted of a felony
and that his civil rights had not been restored, and that complaint was made to the district
attorney, who wilfully and deliberately failed to perform his duty by failing to investigate or
prosecute Stearns for such alleged violation. So far as can be ascertained from the complaint,
it was not indicated in which of the forty-eight states or in which of the territories Stearns had
been convicted of a felony, or what other information or evidence had been placed before the
district attorney. So far as can be ascertained from the allegations contained in this count the
complaint thus alleged to have been made to the district attorney may have been entirely
casual and under circumstances that did not seem to warrant the intensive investigation that
may well have been involved. It is well known that innumerable matters are brought to the
attention of the district attorneys of the several counties of the state throughout the year, and
that the district attorneys, in the exercise of their discretion and for reasons which they
deem sound, determine in many cases that neither a prosecution nor an investigation is
warranted.
of their discretion and for reasons which they deem sound, determine in many cases that
neither a prosecution nor an investigation is warranted. Under this count we see nothing other
than such a situation, and do not find that it constitutes a ground for removal for neglect of
duty or nonfeasance in office.
7. The fourth count of the complaint for removal is in the following language: That on or
about the 22nd day of March, 1949, the Board of County Commissioners of the County of
Clark, State of Nevada, caused a resolution to be adopted ordering and requiring the
abatement of a nuisance, to-wit, of the Roxie Motel situate about four miles in a
Southeasterly direction from the City of Las Vegas, County of Clark, State of Nevada, on the
ground that said Roxie Motel was then and there being conducted as a house of prostitution,
and that thereafter, and on, to-wit, the 23rd day of March, 1949, a copy of said resolution was,
by Glen Jones, Sheriff of the County of Clark, State of Nevada, served upon one Eddie
Clippinger, R. Stovall and Charles Barbee, as required by law, and that thereafter the said
defendant wilfully failed, neglected and refused to abate said nuisance or to take any steps
whatsoever or at all to so abate said nuisance and that said nuisance continued to operate and
exist to the knowledge of defendant thereafter with the exception of the period of
approximately one week until, to-wit, September 29, 1949, at which time said nuisance
ceased for a period of approximately two weeks, and that the said nuisance has continued
thereafter to operate and is operating now, all of which facts were and are known to said
defendant, and all of which is contrary to and in violation of the laws of the State of Nevada.
We have set forth in the margin
3
the statute under which the board of county
commissioners apparently acted.
___________________

3
Sec. 2043. Whenever, in any county of this state, the county commissioners of said county shall have
knowledge, either by personal observation, complaint in writing, or other satisfactory evidence, that a nuisance
exists within the limits of said county, as defined by section 3346 of the Compiled Laws of Nevada [ 9051,
post] it shall be the duty of said board of county commissioners to
which the board of county commissioners apparently acted. The commissioners, having
knowledge that the Roxie Motel was operating as a house of prostitution and therefore
constituting a nuisance, caused a resolution to be adopted ordering and requiring its
abatement. (We may ignore as inconsequential the failure of the board to record its order of
abatement in the minutes.) However it did not, as provided in the statute, direct the district
attorney to notify the persons responsible to abate the nuisance. Instead it caused a copy of the
resolution to be served by the sheriff on three named persons. It does not appear that the
district attorney ever saw the resolution or any notice that may or may not have accompanied
it or had any opportunity to pass upon the sufficiency thereof or upon its compliance with the
provisions of sec. 2043. It is alleged that thereafter the said defendant [the district
attorneypetitioner herein] wilfully failed, neglected and refused to abate said nuisance or to
take any steps whatsoever or at all to so abate said nuisance and that said nuisance continued
to operate and exist to the knowledge of defendant * * * It does not appear that the three
persons who were served with the copy of the resolution (whether or not the same was
accompanied by any additional notice) were the operators, proprietors or agents of the Roxie
Motel or were the person or persons responsible for such nuisance. If the count is based
upon the neglect of duty or nonfeasance of the district attorney, it must be by reason of his
neglecting to obey the direction of the county commissioners to notify the persons
responsible for the nuisance and in failing thereafter to obey the mandate of the statute
directing him to bring an action to abate the same.
_____________________
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.
attorney, it must be by reason of his neglecting to obey the direction of the county
commissioners to notify the persons responsible for the nuisance and in failing thereafter to
obey the mandate of the statute directing him to bring an action to abate the same. But it does
not appear that the commissioners ever directed him to notify the persons responsible. An
attorney, skilled in the practice of the law and carrying out a purely statutory abatement
proceeding, would undoubtedly have proceeded carefully, with his finger upon the statute so
to speak, to see that all preliminary requirements and conditions precedent had been met.
Ordinarily neither the members of a board of county commissioners nor the county clerk
acting as clerk of such board are attorneys and it is not surprising that in the hands of those
unskilled in the law the essential preliminary requirements for an abatement proceeding were
not met. We are satisfied that under the proceedings recited in this count of the removal
complaint it cannot be said that the district attorney was guilty either of neglect of duty or
nonfeasance in failing to initiate abatement proceedings against the Roxie Motel.
We now revert to the second count of the removal complaint. It reads as follows: That on
or about the 29th day of August, 1949, the said defendant, Robert E. Jones, in company with
Jack C. Cherry, on County business, traveled to Boise, Idaho, and returned, concerning the
matter of the aforesaid Cherry burglary, and on, to-wit, the 7th day of September, 1949, the
said Robert E. Jones, defendant, presented his bill to the County of Clark, State of Nevada,
the same being in the proper form as prescribed by law, in the sum of $109.55 for expenses
incurred on said trip in pursuance of the business of the County of Clark, State of Nevada,
and on, to-wit, the 9th day of September, 1949, the said bill was approved by the Board of
County Commissioners of the County of Clark, State of Nevada, and paid by Clark County
Warrant No. 5429 in the amount of $109.55, and the defendant received payment therefor
and accepted and has enjoyed the use and benefit of said payment, knowing full well that
no expense was incurred by said defendant and that the entire expense of said trip was
paid by the said Jack C.
and accepted and has enjoyed the use and benefit of said payment, knowing full well that no
expense was incurred by said defendant and that the entire expense of said trip was paid by
the said Jack C. Cherry, all of which is contrary to the Statutes of the State of Nevada in such
cases made and provided.
In asserting that this count likewise does not state facts sufficient to constitute a cause for
removal, petitioner apparently recognizes the force of its allegations because he devoted the
major portion of his opening and reply briefs to this count.
Petitioner relies on a number of cases which express the view that in order to allege a
proper cause of action for the removal of an officer, for malfeasance, it must appear that the
act complained of must have been the result of wilful conduct, corrupt motives,
conscious wrong, evil purpose, bad purpose, intent to defraud, corruption, evil
intent or motive, with a corrupt or fraudulent intent, etc.
The facts of those cases distinguish them from the case presented under the wording of the
amended complaint. In State ex rel. Hammond v. Missildine, Co. Attorney, 215 Iowa 663,
245 N.W. 303, 304, for example, the requirement that wilful conduct and corrupt motives
must appear was opposed to the presence of mere error of judgment either as to law or fact.
In Law, Co. Attorney v. Smith, 34 Utah 394, 98 P. 300, 309, the question of an intent to
defraud was opposed to the mere act of filing an unauthorized claim. In Commonwealth v.
Wood, 116 Ky. 748, 76 S.W. 842, 843, the absence of any evil intent or motive was
opposed to a charge that the county officer had wilfully and unlawfully issued a liquor license
after a vote establishing local option for the town. In Ponting v. Isaman, 7 Idaho 581, 587, 65
P. 434, 436, certain acts as charged were actually illegal, but removal was denied because
the officer acted honestly, and without intent to defraud his county. Similar distinctions
appear throughout. Nor is Buckingham v. Fifth Judicial District Court, 60 Nev. 129, 102 P.2d
632, 635, authority for the proposition, as stated by petitioner, that fraud or corruptness
must be alleged.
Nev. 129, 102 P.2d 632, 635, authority for the proposition, as stated by petitioner, that fraud
or corruptness must be alleged. On the contrary, this court there said: The wrongful act must
be made to appear by the description employed * * *. (Emphasis supplied.) Petitioner
emphasizes the insufficiency of the clause here used to the effect that the defendant received
the money from the county knowing full well that the entire expense of the trip had been
paid by Cherry. The force of the allegation lies not so much in the fact that petitioner knew
full well that the entire expense was paid by Cherry but that, as the entire expense of the trip
had been paid by Cherry, no expense had been incurred by petitioner. Petitioner insists that
the complaint itself alleges that the expenses were incurred. This is not accurate. The
complaint alleges that the district attorney presented his bill * * * for expenses incurred * *
* knowing full well that no expense was incurred. Petitioner also contends that respondents'
brief also alleges that the expenses were incurred, but we do not read it that way. If we look to
the description employed (to use the words of Mr. Justice Orr in the Buckingham case) we
find that no expenses were incurred but that the defendant, well knowing this, nevertheless
submitted a claim that they were incurred and collected the amount of the claim from the
county. It is not made necessary, as insisted by petitioner, that we indulge in two
presumptions, first, that the claim was illegal, and second, that it was submitted with a
corrupt intent. It would add nothing to the description employed to append the statement
that the claiming and collecting of county money as expenses incurred, knowing full well that
no expense was incurred, was with fraudulent intent. Petitioner plausibly and reasonably
presents many examples of district judges and other officers presenting claims for per diem,
mileage and other expense despite the fact that they are invited to meals by friends or ride in
the cars of others. This method of argument is not without its force, but many elements would
have to be considered to complete the analogy and it would be of no assistance to build up
and examine a number of hypothetical cases.
it would be of no assistance to build up and examine a number of hypothetical cases.
Petitioner relies strongly on State ex rel. Fletcher v. Naumann, 213 Iowa 418, 239 N.W.
93, 81 A.L.R. 483, 484, in which the collection of mileage from the county, though the
officer traveled at no expense to himself, was not considered to be a ground for removal. But
the Iowa statute was in no way concerned with expenses incurred. It simply allowed ten
cents a mile for every mile traveled. Code 1927, sec. 5125, I.C.A. sec. 331.22. Later it
amended its statute by eliminating the allowance for mileage when the officer was
gratuitously transported. We do not find it necessary to discuss the cases found in the
annotation to this case at 81 A.L.R. 493.
Both parties have devoted much time to three Utah cases. They are Law, Co. Attorney v.
Smith, 34 Utah 394, 98 P. 300; Skeen v. Craig, 31 Utah 20, 86 P. 487; and Atwood v. Cox,
88 Utah 437, 55 P.2d 377, 393. The Atwood case thought that the Law case had trouble with
the language used in the Skeen case, but counsel seem to have trouble with all of them. The
ultimate conclusion reached by the Utah court was that for an officer to be guilty of filing an
illegal claim he must have done so knowing that he was doing wrong or at least under such
circumstances that any reasonable person who had done the same thing would have known
that he was doing something wrong. This eliminated the necessity of the allegation of
fraudulent intent, which was the entire subject of discussion in the two earlier Utah cases. It is
in accordance with our own reasoning.
8-10. It is suggested that the payment of the expenses by Cherry may have been a mere
gratuity, or may have constituted a loan to petitioner, to be repaid by him, but we do not
consider that it was necessary for the complaint to negative these or other possibilities. We
agree with the many authorities submitted by petitioner to the effect that these statutory
removal proceedings are highly penal in their effect and quasi criminal in their nature.
Matters of proof, matters of defense, questions as to whether the drastic remedy, in
summary proceedings, of removing from office an official elected by the people for a fixed
term, should be adjudgedall these are for the trial judge.
as to whether the drastic remedy, in summary proceedings, of removing from office an
official elected by the people for a fixed term, should be adjudgedall these are for the trial
judge. In this regard we adopt for the court the language used by McCarran, C. J., in his
concurring opinion in Ex Parte Jones and Gregory, 41 Nev. 523, 173 P. 885, 888: The
statute which gives rise to this proceeding is one for the removal of certain officers. It is a part
of our law, made so by legislative will. The whole procedure is denominated as being
summary; hence it precludes the right to jury trial. Into the hands of the district judge this
statute lays one of the most sacred duties, that of removing an individual from the enjoyment
of public position of trust and honor. The law, in my judgment, contains nothing which
recommends itself to the spirit of democracy. It partakes of none of the progressive
inspiration which gave rise to the historic scene at Runnymede. It is an extreme and
extraordinary measure, intended only for extreme and extraordinary occasions. It is fraught
with seriousness and a demand for extreme caution both from the standpoint of him who
prefers the charge and him who listens and pronounces judgment. On both it places that high
degree of responsibility which is always attendant when the reputation and good name of men
are in the balance. It clothes the district judge with a responsibility sacred and potential, and
exacts from that officer the highest degree of unbiased judgment, in the formation of which it
appears to me proof of the accusations should attain the dignity of exceeding a reasonable
doubt.
As to the first, third and fourth counts of the complaint filed in the district court for the
removal of petitioner from the office of district attorney of Clark County, the peremptory writ
of prohibition will issue. As to the second count, the peremptory writ is denied and the
alternative writ vacated. No costs are allowed.
____________
67 Nev. 419, 419 (1950) McDonald v. Beemer
JOSEPH F. MCDONALD, Petitioner, v. ELWOOD H. BEEMER, as County Clerk and Ex
Officio Clerk of the Board of County Commissioners, Washoe County, Nevada,
Respondent.
No. 3628
June 27, 1950. 220 P.2d 217.
Original proceeding in mandamus by Joseph F. McDonald, against Elwood H. Beemer, as
County Clerk and ex officio Clerk of the Board of County Commissioners, Washoe County.
The Supreme Court, Eather, J., held that, since the special act establishing commissioner
districts in the county of Washoe was prohibited by the Constitution of the State, the Act of
1865, creating boards of county commissioners in the counties of the State, was controlling,
and that thereunder a candidate for commissioner was only required to be a qualified elector
of the county in which election was sought, and not of any particular district, and that
therefore respondent was required to accept and file petitioner's declaration of candidacy for
the office of county commissioner of Washoe County.
Order in accordance with opinion.
1. Mandamus.
Where county clerk has refused to file declaration of candidacy from qualified individual, determination
of validity of clerk's action is necessary to prevent serious embarrassment in regard to election of said
county, and closing date for filing of declaration of candidacy is rapidly approaching, mandamus is proper
remedy for individual whose declaration was refused.
2. Statutes.
As general rule, if statute be either special or local or both and comes within one or more of cases
enumerated under section of Constitution restricting legislative powers, such statute is unconstitutional, and
further, if statute be special or local but does not come within any of the cases enumerated in the
aforementioned section of the Constitution, its constitutionality depends upon whether general law can be
made applicable. Const. art. 4, secs. 20, 21.
3. Statutes.
County business covers almost everything that concerns administration of county government, and
includes election or appointment of its officers and employees, amount of their
compensation, and how, when, and from what fund it is to be paid.
appointment of its officers and employees, amount of their compensation, and how, when, and from what
fund it is to be paid. Const. art. 4, sec. 20.
4. Statutes.
If act regulating internal affairs of county excludes from its operation counties or localities similarly
situated and in like relation to legislative purpose, classification is not uniform and is faulty as being local
and special. Const. art. 4. secs. 20, 21, 25, 26.
5. Counties, Towns.
Under section of Constitution requiring legislature to establish system of county and township
government which shall be uniform throughout state, since system of government consists of powers,
duties, and obligations placed upon political organization and scheme of officers charged with their
administration, if system is to be uniform, it is necessary that these powers, duties and obligations shall be
same in each county, that same officers shall be provided, and that responsibilities of government shall be
divided among them in same manner. Const. art. 4, sec. 25.
6. Statutes.
Act establishing commissioner districts in county of Washoe and providing for election of members of
board of county commissioners thereof was special law regulating county and township business and as
such, was prohibited by Constitution. Const. art. 4, secs. 20, 21, 25, 26.
7. Counties.
In absence of procedure in accordance with section of general act defining manner of electing county
commissioners which provides for division of county into commissioner districts, manner of electing
county commissioners for Washoe County was governed by act creating boards of county commissioners in
several counties of state and defining their duties and powers. Laws 1933, c. 30; N.C.L.1929, secs. 1935 et
seq., 1964.
8. Counties.
Qualified elector and resident of Washoe County was entitled to have his declaration of candidacy for
office of county commissioner of Washoe County filed by county clerk and ex officio clerk of board of
county commissioners of said county, notwithstanding that such individual refused to register as resident of
particular district of county as required by act establishing commissioner districts in county of Washoe and
providing for election of members of board of county commissioners thereof. Laws 1933, c. 30;
N.C.L.1929, sec. 1935 et seq.; Const. art. 4, secs. 20, 21, 25, 26.
Echeverria & Young, of Reno, for Petitioner.
Harold O. Taber, District Attorney, Washoe County, of Reno, for Respondent.
OPINION
By the Court, Eather, J.:
This application for a writ of mandamus presents squarely for determination the
constitutionality of an act of the legislature applying to Washoe County alone, and dividing
that county into two commissioner districts.
1. Petitioner alleges that he is a citizen, taxpayer and legally qualified voter of Washoe
County; that respondent is the county clerk and ex officio clerk of the board of county
commissioners of said county and is charged with the duty of accepting and filing a
declaration of candidacy from any qualified individual who desires to be a candidate for
district office voted for wholly within one county, and that a declaration of candidacy for the
office of county commissioner of Washoe County, Nevada, may be properly filed with
respondent; that petitioner has attempted to file with respondent such declaration of
candidacy, properly executed and acknowledged, together with the statutory filing fee, and
complying in all respects with the requirements for such filing; that respondent refuses to
accept such filing unless petitioner registers as a resident of a particular district of said
county; that in addition to his interest in being a candidate, petitioner, as a taxpayer, desires to
have said county properly and validly governed and to exercise his franchise in a valid
election and that the matters involved are of public and general interest to the people of said
county and that the determination thereof is necessary to prevent serious embarrassment in
regard to the elections of said county; that the closing date for filing declarations of candidacy
is rapidly drawing near (July 17, 1950), and that a prompt determination of the matter is vital
to the interests of the public and the taxpayers and electors of Washoe County. That
mandamus is the proper remedy under such circumstances has heretofore been held by this
court. State ex rel. Fall v. Kelso, 46 Nev. 128, 208 P.424. Respondent's answer to the petition
admits all of the allegations thereof, but recites that respondent is prohibited from
accepting petitioner's declaration of candidacy for the office of county commissioner,
absent the statement therein that the petitioner is a qualified elector and resident of the
district for which he is a candidate, by the provisions of chap.
thereof, but recites that respondent is prohibited from accepting petitioner's declaration of
candidacy for the office of county commissioner, absent the statement therein that the
petitioner is a qualified elector and resident of the district for which he is a candidate, by the
provisions of chap. 30, Statutes of Nevada, 1933, p. 25, entitled An Act to establish
commissioner districts in the county of Washoe, and providing for the election of members of
the board of county commissioners thereof, and reading as follows:
Section 1. Within ninety days after the passage and approval of this act the board of
county commissioners of Washoe County shall divide said county into two commissioner
districts, with the following boundaries for each of said commissioner districts:
(a) All that portion of Washoe County known as the voting precincts of Reno and Verdi,
and all that portion of the county of Washoe south of the city of Reno shall be known as
commissioner district No. 1.
(b) All the remaining portion of Washoe County not included within the boundaries of
district No. 1 as described in subdivision (a) of this section, shall be known as commissioner
district No. 2.
Sec. 2. At the general election in 1934 and at each general election thereafter there shall
be elected in district 2 a commissioner who shall serve for two years. At the general election
in 1934 and at each general election thereafter there shall be elected in district 1 a
commissioner who shall serve for four years.
Sec. 3. The board of county commissioners of said Washoe County shall establish
election precincts within such county in such manner that each and every election precinct
shall be wholly within some one of said commissioner districts.
Sec. 4. Candidates for the office of county commissioner for the respective districts shall
be qualified electors and residents of the districts for which they are candidates. (Italics
supplied.)
Petitioner's reply asserts that this act is unconstitutional and reiterates his prayer for the
writ commanding respondent to accept petitioner's declaration of candidacy without the
requirement insisted upon by respondent.
Our attention is first directed to An Act to create a Board of County Commissioners in
the several counties of this State and to define their Duties and Powers, Statutes 1865, P.
257, as amended, being sections 1935 et seq. N.C.L., which act provides for the election of
county commissioners by the qualified electors of each county and definitely requires that
such commissioners be themselves qualified electors of their respective counties. It is the
contention of petitioner that this general act must govern the matter of the election of county
commissioners for Washoe County unless the commissioners, acting under the authority and
in the manner provided in a later general act of the legislature proceed to divide the county
into commissioner districts.
Such later general act is that enacted by Statutes 1893, P. 33, being An Act to define the
manner of electing County Commissioners, sections 1 and 4 of which, being respectively
sections 1964 and 1967, N.C.L.1929, read as follows:
Commissioner Districts. 1. Whenever twenty per cent or more of the qualified electors
of any county in this state shall petition the board of county commissioners of their county to
that effect, it shall be the duty of the county commissioners of such County, on or before the
first Monday in July preceding any general election, to divide the county into three districts to
be known as commissioner districts.' Such division shall be made to conform to the
established boundaries of election precincts or wards, and each and every election precinct or
ward shall be wholly within one of the commissioner districts herein provided for. Each
commissioner district shall embrace, as near as may be, one-third of the voting population of
the county, to be determined by the vote cast at the last general election, and shall consist
of adjoining precincts; provided, that in case not more than three election precincts or
wards exist in the county, then each election precinct or ward shall constitute a
commissioner district."
the vote cast at the last general election, and shall consist of adjoining precincts; provided,
that in case not more than three election precincts or wards exist in the county, then each
election precinct or ward shall constitute a commissioner district.
Electors. 4. County commissioners shall be elected by the qualified electors of the
county wherein they reside as other county officers are now elected.
2. It first becomes necessary to lay the 1933 act alongside the constitutional provisions
having to do with the legislative powers. Section 20 of article IV of the state constitution,
N.C.L., sec. 71, reads in part: Legislative Powers Restricted. 20. The legislature shall not
pass local or special laws in any of the following enumerated cases, that is to say: * * *
regulating county and township business; regulating the election of county and township
officers * * *.
Section 21 of said article being sec. 72, N.C.L., reads as follows: Laws General And
Uniform. 21. In all cases enumerated in the preceding section, and in all other cases where a
general law can be made applicable, all laws shall be general and of uniform operation
throughout the state.
Section 25 of said article, being sec. 76, N.C.L., reads as follows: County Government.
25. The legislature shall establish a system of county and township government, which shall
be uniform throughout the state.
Section 26 of said article, being section 77, N.C.L., reads in part as follows: County
Commissioners. 26. The legislature shall provide by law for the election of a board of
county commissioners in each county * * *.
It is first apparent that, as a general rule, if a statute be either special or local or both and
comes within one or more of the cases enumerated under section 20 of article IV of the
constitution, such statute is unconstitutional; and further, if the statute be special or local but
does not come within any of the cases enumerated in section 20, its constitutionality depends
upon whether a general law can be made applicable.
can be made applicable. Washoe County Water Conservation District v. Beemer, 56 Nev.
104, 116, 45 P.2d 779. See also McDermott v. County Commissioners, 48 Nev. 93, 227 P.
1014, with reference to special laws regulating county and township business, being one of
the additional enumerated cases recited in section 20 of article IV of the constitution. It is not
pretended or claimed that the 1933 act applies to any other than Washoe County, or may be
defended under the rules of permissible classification as discussed in State v. Donovan, 20
Nev. 75, 15 P. 783, and the cases therein referred to.
3. In Singleton v. Eureka County, 22 Nev. 91, 35 P. 833, the legislature, by Statutes 1893,
p. 80, authorized the sheriff of Eureka County to appoint a night watchman at a fixed salary
payable by the county, being an amendment of the act of 1869 authorizing the county
commissioners of Eureka County to appoint one night watchman for the town of Eureka. In
that case, 22 Nev. at page 101, 35 P. at page 836, Bigelow, J., in concurring said: There are
several other constitutional provisions with which the act seems to conflict, but there is one
with which the conflict is clear, and that is that no local or special law shall be passed
regulating county and township business. That the law is local to Eureka County cannot be
denied, and to some extent it certainly regulates the business of that county. County business'
may be defined as covering almost everything that concerns the administration of the county
government. It includes the election or appointment of its officers and employes, the amount
of their compensation, and how, when, and from what fund it is to be paid. This act directs
how the watchman is to be appointed, upon which subject there have been three different
regulations. It regulates its business by making it responsible for the watchman's salary,
which otherwise it would not be. It directs that the county's money shall be taken from its
treasury, and paid to one who otherwise would have no claim upon it. It fixes the amount
which the county must pay, and by reference to the manner of payment of the salaries of
other county officers, it directs how, when, and from what fund the money is to be paid.
must pay, and by reference to the manner of payment of the salaries of other county officers,
it directs how, when, and from what fund the money is to be paid. This is a regulation of
county business, within the meaning of the constitution, concerning which local laws are
forbidden.
4, 5. The principal opinion written by Murphy, C. J., in which Belknap, J., concurred,
stated that * * * If the act * * * regulating the internal affairs of a county, excludes from its
operation counties or localities similarly situated, and in like relation to the legislative
purpose, then the classification is not uniform, and is faulty as being local and special.
Turning again to Judge Bigelow's concurring opinion, we find attention drawn to the evils of
legislation affecting but one localitythe fact that the same is invariably referred to the local
members and passed without scrutiny from the other representatives and without any feeling
of responsibility on their part, thus often leading to improper combinations among the
members and even to vicious legislation that would not be permitted were it to affect the
whole state. Judge Bigelow then points out:
Among a number of provisions in the constitution directed against this evil is the one
requiring the legislature to establish a system of county and township government which shall
be uniform throughout the state. To a certain extent the system to be adopted was left to the
discretion of the legislative body, but the requirement is absolute that, whatever the system
may be, it must be uniform; indicating that this uniformity was a more important
consideration with the constitution makers than the plan to be adopted. These limitations
upon the power of the legislature should be executed by the courts in the same spirit in which
they were adopted, and so as to prevent legislation sought to be guarded against.
A system of government consists of the powers, duties, and obligations placed upon the
political organization, and the scheme of officers charged with their administration.
administration. If the system is to be uniform, it is necessary that these powers, duties, and
obligations shall be the same in each county; that the same officers shall be provided, and the
responsibilities of government be divided among them in the same manner; otherwise the
system is not uniform, for, as here used, the word means that the county governments to be
established are in all essential particulars to be alike.
6-8. It is clear to the court that the 1933 act hereinabove quoted comes directly within the
prohibition of each and all of sections 20, 21, 25 and 26 of article IV of the constitution and
that in the absence of procedure in accordance with the act of 1893, p. 33, regulating the
manner in which counties may be divided into commissioner districts, State ex rel. Kearns v.
Streshley, 46 Nev. 199, 209 P. 712; State ex rel. Fall v. Kelso, 46 Nev. 128, 208 P. 424, the
manner of electing county commissioners for Washoe County is governed by the provisions
of the act of 1865, p. 257, as amended, being sections 1935 et seq., N.C.L.
Let the peremptory writ as prayed for issue. Such writ shall be effective only in the
absence of the establishment of commissioner districts in accordance with the act of 1893, p.
33, being sections 1964 et seq., N.C.L. No costs awarded.
____________
67 Nev. 428, 428 (1950) Dillon v. Dillon
ELIZABETH ROTHERHAM DILLON, Appellant v.
KENNETH P. DILLON, Respondent.
No. 3622
July 5, 1950. 220 P.2d 213.
Action by Elizabeth Rotherham Dillon against Kenneth P. Dillon for divorce. The Second
Judicial District Court, Washoe County, Harry M. Watson, Presiding Judge, granted a decree
of divorce to the defendant, and the plaintiff appealed from an order refusing a new trial and
from the final judgment. The defendant moved to strike the transcript of testimony, to strike
22 listed papers embodied in the record on appeal, to dismiss the appeal from the order, and
to dismiss the appeal from the final judgment. The Supreme Court, Badt, J., held that the
record did not support the appeal from the order, and that the appeal from the final judgment
was timely.
Motion to strike the enumerate, documents and transcript granted, motion to dismiss
appeal from order granted, and motion to dismiss appeal from judgment denied.
Where affidavit, order and proof of publication of summons, summons, affidavit of mailing, demand for
bill of particulars, notice of motion and motion for order of allowance, bill of particulars, proposed findings
of fact and conclusions of law, objections and exceptions to proposed findings, notice of decision,
stipulation, rulings on motion for new trial, notice of intention so to move, notice of order refusing new
trial, and various clerk's minutes were not incorporated in bill of exceptions, all would be stricken out on
appeal. N.C.L.1929, secs. 8828, 9385.81, 9385.84, 9385.86.
Transcript served and filed late would be stricken out on appeal.
Where record did not support appeal from order denying motion for new trial, motion to dismiss appeal
would be granted.
4. Judgment.
Final judgment is rendered when judgment is orally pronounced by trial court.
5. Divorce.
Generally, awarding of costs in divorce action is not a matter of right, but rests in sound discretion of trial
court.
6. Divorce.
Although divorce action is statutory, it partakes of nature of equitable proceeding in course of which
injunction, mandamus, appointment of receiver and other equitable writs and orders may be employed.
7. Divorce.
Where oral judgment in divorce action was silent as to costs, it was not the final judgment, and an appeal
taken within six months after rendition of formal decree, but more than six months after oral
pronouncement was timely. N.C.L. 1929, secs. 8927, 9465; N.C.L.1931-1941 Supp., sec. 9385.60.
T. L. Withers, of Reno, for Appellant.
L. D. Summerfield and A. R. Schindler, both of Reno, for Respondent.
OPINION
Respondent husband, who was granted a decree of divorce from the appellant wife by the
district court, has (1) moved to strike the transcript of Testimony and Proceedings, certified
by the official court reporter; (2) has moved to strike twenty-two listed papers embodied in
the Record on Appeal; (3) to dismiss the appeal from the order denying appellant's motion
for new trial; and (4) to dismiss the appeal from the final judgment.
The chronology of the various filings is as follows:
September 8, 1949, oral judgment pronounced.
September 9, 1949, notice of decision served and filed.
March 3, 1950, order denying new trial filed and notice thereof served.
March 8, 1950, the judgment and decree of divorce filed.
April 29, 1950, notice of appeal from judgment and from order denying new trial, and
bond on appeal served and filed.
from order denying new trial, and bond on appeal served and filed.
May 23, 1950, record on appeal and reporter's transcript of testimony and proceedings
served and filed.
1, 2. Sections 9385.81, 9385.84 and 9385.86, so far as applicable to the present motions,
are set forth in the margin.
1
No bill of exceptions was ever settled by stipulation of the
parties or certificate of the district judge. The papers enumerated in the motion to strike
comprise twenty-two instruments which, under the provisions and definitions of our statute,
do not comprise a part of the judgment roll. Section 8828, N.C.L.1929
2
. The question is not
new to this jurisdiction. Under consistent rulings of this court the twenty-two listed
documents, being neither incorporated in a bill of exceptions nor comprising a part of the
judgment roll, must be stricken and the transcript must likewise be stricken for late service
and filing.
____________________

1
9385.81. BILL OF EXCEPTIONS, HOW AND WHEN FILED. 31. At any time after the filing of the
complaint and not later than twenty (20) days after final judgment, or if a motion be made for a new trial, then
within twenty (20) days after service of written notice of the decision upon such motion * * * any party to an
action or proceeding may serve and file a bill of exceptions to such judgment or any ruling, decision, order, or
action of the court, which bill of exceptions shall be settled and allowed by the judge or court, or by stipulation
of the parties, by attaching thereto or inserting therein a certificate or stipulation to the effect that such bill of
exceptions is correct, contains the substance of the proceedings relating to the point or points involved and has
been settled and allowed, and when such bill of exceptions has been so settled and allowed it shall become a part
of the record in such action or proceeding.
Transcript of Proceedings may Constitute Bill of Exceptions. Bills of exceptions shall be made up and
prepared as follows, and not otherwise:
(1) A transcript of the proceedings, certified by the court reporter, appointed by the court, under authority of
law, or by agreement of the parties, to be a full, true, and correct transcript thereof, may be served and filed, and
when so filed shall be and constitute the bill of exceptions of the proceedings relating to the point or points
involved, as therein set forth, without further stipulation or settlement by the court; provided, however, that on
motion duly noticed, the court may at any time correct any error in such transcript by appropriate amendment
thereto. The transcript of the proceedings, certified by the court reporter, as herein
for late service and filing. Craig v. Harrah, 65 Nev. 294, 195 P.2d 688, 66 Nev. 1, 201 P.2d
1081; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581, 118 P.2d 702; Blouin v.
Blouin, 66 Nev. 137, 206 P.2d 608; and the cases therein referred to.
3. The record being then bare of support of the appeal from the order denying the motion
for new trial, the motion to dismiss the appeal from such order must be granted. Blouin v.
Blouin, supra.
4. This leaves for our consideration respondent's motion to dismiss the appeal from the
judgment. As hereinabove quoted, the judgment was orally pronounced from the bench
September 8, 1949. The formal judgment and decree of divorce was filed March 8, 1950. The
notice of appeal from the judgment was served and filed April 29, 1950. The statute requires
such appeal to be taken within six months from the rendition of the judgment.
____________________
provided, together with all other matters, exhibits, motions, papers or orders, required to be incorporated in a bill
of exceptions, when so incorporated in the bill of exceptions, as herein provided, and when such bill of
exceptions has been so settled and allowed, as herein provided, it shall become a part of the record in such
action or proceeding.
9385.84. REQUIREMENT OF ACT MUST BE ADHERED TO. 34. Bills of exceptions provided for
by this act must be prepared, served, and filed, as herein provided, and not otherwise * * *.
9385.86. WHEN RIGHT TO FILE BILL WAIVED. 36. 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 * * *.

2
The documents which respondent moves to be stricken are as follows: 1. Affidavit for publication of
summons; 2. Order for publication of summons; 3. Summons; 4. Proof of publication; 5. Affidavit of mailing; 6.
Defendant's demand for bill of particulars; 7. Notice of motion and motion for order for allowances; 8. Affidavit
of defendant; 9. Plaintiff's demand for bill of particulars; 10. Plaintiff's bill of particulars; 11. Proposed findings
of fact and conclusions of law; 12. Objections and exceptions to proposed findings; 13. Notice of decision; 14.
Stipulation; 15. Rulings on motion for new trial and as to findings of fact and conclusions of law; 16. Notice of
intention to move for a new trial; 17. Notice of order refusing a new trial; 18. Clerk's minutes, May 31, 1949; 19.
Clerk's minutes, August 1, 1949; 20. Clerk's minutes, September 7, 1949; 21. Clerk's minutes, September 8,
1949; 22. Clerk's minutes, March 3, 1950.
taken within six months from the rendition of the judgment. Sec. 9385.60, N.C.L. Supp.,
1931-1941. If the oral pronouncement was the final judgment, the notice of appeal was too
late and gave this court no jurisdiction over the appeal. If the oral pronouncement was not the
final judgment and the formal judgment and decree was such final judgment, the appeal was
timely. It is true, as pointed out by respondent, that this court has several times held that a
final judgment is rendered when the judgment is orally pronounced by the trial court. Lewis
v. Williams, 61 Nev. 253, 123 P.2d 730, 125 P.2d 305, and cases therein cited.
The court minutes of September 8, 1949 show the following as the oral pronouncement of
the judgment: The court ordered the decree of divorce be granted to the plaintiff; that
plaintiff be directed to pay counsel for defendant the further sum of $100.00 additional
attorney fee. The reporter's transcript shows the oral order as follows:
Subject to discussion with reference to allowances which may be in the way of attorney
fees, which would have to come as alimony, it is the judgment and order of this Court that
plaintiff have judgment and decree of divorce as prayed, on the grounds of cruelty as alleged,
and as that term is defined by the law of the State of Nevada.
That the plaintiff pay in the way of allowance or alimony, intended to be paid as attorney
fees, $100 to or through counsel for and on behalf of the defendant and cross-complainant.
Appellant contends that this judgment, being silent as to costs, was not a final
pronouncement, and we are of the opinion that she is correct in such contention. Respondent
insists that in divorce actions the matter of costs and expenses is taken care of by a motion for
allowances under sec. 9465, N.C.L.1929, under which allowances were granted in the present
case, and under which an additional attorney fee of $100 was ordered by the oral judgment,
and that our general cost statute, sec.
8927, N.C.L.1929, has no application to actions for divorce. In support of this contention
respondent quotes a portion of sec. 29.02, 3 Nelson on Divorce and Annulment. The entire
section so far as applicable reads as follows: Costs in divorce suits, aside from attorneys'
fees for the wife, may be governed by special rule or statute, but are usually left in the
discretion of the court. The general rule, by statute in most states with respect to actions
generally, is to award costs to the successful party, and against the unsuccessful one. There is
no common law right to costs, however, which are entirely a creature of statute, and general
cost statutes are not necessarily deemed applicable to divorce suits. Sometimes it is deemed
just and proper to apportion the costs. In proper case, costs may be awarded against the wife,
or, in community property states, against community property.
5. Respondent also relies upon Falk v. Falk, 48 Cal. App.2d 780, 120 P.2d 724, cited in the
foregoing text, which case did indeed hold that certain limitations in the general statute
entitling the prevailing parties to costs did not apply in a divorce action, wherein costs might
be awarded in the discretion of the court. The circumstances of the Falk case do not apply
here. The general rule, as stated in 27 C.J.S., Divorce, sec. 196, page 873, is that the awarding
of costs in divorce actions is not a matter of right but rests in the sound discretion of the trial
court. A similar question as to the finality of a judgment that failed to tax the costs was before
this court, although not in a divorce action, in Magee v. Whitacre, 60 Nev. 202, 96 P.2d 201,
202, 106 P.2d 751, in which Orr, J., speaking for the court, said:
As to the second proposition, the trial court did not make an order relative to the costs
until the filing of the formal findings and formal judgment, on the 26th day of September,
1938, and no mention thereof was made in the decision of April 14, 1938. This is an action in
equity, and is clearly one in which the court is vested with discretion in the assessment of
costs, under Section 8927, N.C.L. The case of Perkins v. Sierra Nevada Silver Mining Co.,
N.C.L. The case of Perkins v. Sierra Nevada Silver Mining Co., 10 Nev. 405, 410, gives the
following definition of a final judgment: A judgment or decree is final that disposes of the
issues presented in the case, determines the costs, and leaves nothing for the future
consideration of the court.' This definition is cited with approval by this Court in the case of
Nevada First National Bank of Tonopah v. Lamb, 51 Nev. 162, 271 P. 691.
Reading the decision of the trial court in the light of the above definition, we find missing
one of the essentials, namely, it fails to determine the costs; hence to that extent it is not final,
and such determination not having been made until September 23, 1938, final judgment was
not entered until said date, and appellants had six months therefrom in which to appeal. The
appeal from the judgment was timely, and the motion to dismiss said appeal is denied.
(Emphasis by Justice Orr.) The opinion in the Lamb case was Per curiam.
6, 7. Respondent thinks that Magee v. Whitacre may be distinguished, first, because that
was an equity suit involving a number of parties and an intervener, and secondly, because as a
matter of fact costs were awarded by the formal judgment in that case, while the present
action is one for divorce and in which neither the oral judgment nor the formal decree did
award any costs. While it is true that a divorce suit is statutory in Nevada, Effinger v.
Effinger, 48 Nev. 209, 228 P. 615, 239 P. 801, it partakes of the nature of an equitable
proceeding, in the course of which injunction, mandamus, appointment of receiver and other
equitable writs and orders may be employed. Thompson v. Thompson, 49 Nev. 375, 247 P.
545, 547, 47 A.L.R. 569. Mr. Chief Justice Coleman in that case, after discussing various
authorities and some of the general statements made to the effect that matrimonial actions are
neither actions at law nor suits in equity but are statutory actions, points out that our
constitutional convention classified divorce suits as equitable in character.
divorce suits as equitable in character. When sec. 6 of article VI of the constitution, fixing the
jurisdiction of district courts, was under consideration, it was suggested that it might be well
to include cases of divorce, but in rejecting this contention it was stated: They are covered
already. Those are actions in equity, and it is provided that the district courts shall have
original jurisdiction in all cases in equity. Thompson v. Thompson, supra, quoting Marsh's
Constitutional Debates 653.
Nor is the situation changed by reason of the fact that the final decree did not allow costs.
Discretion to award costs was still in the court and therefore, under the authorities cited, the
oral pronouncement was not a final judgment, and the statutory period of six months within
which to appeal did not commence to run until six months after the rendition of the formal
judgment.
The motion to strike the enumerated twenty-two documents is granted. The motion to
strike the Transcript of Testimony and Proceedings is granted. The motion to dismiss the
appeal from the order denying appellant's motion for new trial is granted. The motion to
dismiss the appeal from the judgment is denied.
No costs are awarded.
_______________
67 Nev. 436, 436 (1950) State v. Butner
STATE OF NEVADA, Plaintiff and Respondent, v. OWEN CAUDLE BUTNER, Defendant
and Appellant.
No. 3545
July 6, 1950. 220 P.2d 631.
On petition for rehearing. The Supreme Court, Badt and Eather, JJ., held that a lay witness
was properly permitted, in exercise of discretion of trial judge, to express an opinion of the
sanity of accused at time of the murder for which accused was convicted.
Petition denied.
For former decision of Supreme Court which affirmed conviction for murder in the first
degree, see 66 Nev. 127, 206 P.2d 253.
Horsey, C. J., dissented.
1. Criminal Law.
A lay witness who had adequate opportunity for observation may, after stating the facts, give his opinion
as to the sanity or insanity of an accused.
2. Criminal Law.
The weight to be given testimony of a lay witness as to sanity or insanity of an accused is for jury.
3. Criminal Law.
The determination as to whether lay witness whose testimony is offered on issue as to sanity of an
accused, had sufficient observation of accused, is discretionary with trial judge.
4. Criminal Law.
An appellate court will not interfere with exercise of discretion of trial judge in making determination as
to whether lay witness whose testimony is offered on issue as to sanity of an accused had sufficient
observation of accused, in absence of an abuse of discretion.
5. Criminal Law.
A lay witness 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 lay witness was in a
highly precarious position because of danger to his own personal safety, was properly permitted in exercise
of discretion of trial judge to express an opinion in murder prosecution of the sanity of accused at time of
shooting.
6. Homicide.
The statute authorizing court to modify judgment of conviction by reducing degree of crime did not
permit reduction of crime from first-degree murder to second-degree murder where
evidence sustained conviction for first-degree murder. N.C.L.1931-1941 Supp., sec.
of crime from first-degree murder to second-degree murder where evidence sustained conviction for
first-degree murder. N.C.L.1931-1941 Supp., sec. 11032, subd. 6.
7. Homicide.
Power to commute sentence for first-degree murder from death to life imprisonment is vested exclusively
in the board of pardons and parole commissioners under statute, and supreme court did not have such
power. N.C.L.1929, sec. 10068, as amended St.1947, c. 91, p. 302.
Griswold & Vargas, of Reno, John R. Ross, of Carson City, Leslie E. Riggins, of Reno, for
Appellant.
Alan Bible, Attorney General, Homer Mooney, Assistant Attorney General, W. T.
Mathews, Special Assistant Attorney General, R. L. McDonald, Deputy Attorney General,
Harold O. Taber, District Attorney, John C. Bartlett and Gordon R. Thompson, Deputy
District Attorneys, all of Reno, for Respondent.
OPINION
By the Court, Badt and Eather, JJ.:
On May 4, 1950, after due and careful consideration, the undersigned two justices signed
an order, without opinion, denying the petition. Two months of more or less continuous
conferences failed to bring unanimity among the three members of the court, and we have felt
constrained to express our views as briefly as may be.
With Hon. Frank McNamee, district judge, assigned to this case by the governor of
Nevada by reason of the illness of the chief justice, we unanimously affirmed the judgment of
the district court on the jury's verdict of first-degree murder with the death penalty imposed.
State v. Butner, 66 Nev. 127, 206 P.2d 253. Thereafter the court, with the same personnel,
after due consideration but without opinion, denied a rehearing. Appellant has now filed a
second petition for rehearing, frankly admitting that he asserts as error the same assignment
as stated in his appeal and in his first petition for rehearingthat the trial court abused its
discretion in admitting the testimony of a lay witness to the effect that in his opinion the
defendant was sane at the time he shot and killed his estranged wife.
as stated in his appeal and in his first petition for rehearingthat the trial court abused its
discretion in admitting the testimony of a lay witness to the effect that in his opinion the
defendant was sane at the time he shot and killed his estranged wife. In the meantime
petitioner had sought a writ of certiorari from the Supreme Court of the United States upon
the ground that the admission of the testimony of such lay witness was a denial of due
process, 338 U.S. 950, 70 S.Ct. 479. That court however refused to issue the writ.
The petition must be denied.
We refrain from comment on the question of the propriety or legality of a second petition
for rehearing raising the same assignment of error disposed of in the opinion on the appeal
and raised in the first petition for rehearing.
1

We also refrain from comment on the legality or propriety of the consideration of such
second petition for rehearing by a member of the court who was disabled by illness from
participating in the consideration of the original appeal, from hearing the oral argument on
such appeal and from participating in the determination of the first petition for
rehearingwhen the district judge assigned to the case, and who sat in the appeal, heard the
arguments, wrote the unanimous opinion of the court and joined in the consideration of and
the
____________________

1
But see State v. Jon, 46 Nev. 418, 438, 211 P. 676, 217 P. 587, 30 A.L.R. 1443, in which Coleman, J.,
speaking for this court, said: Counsel for appellants have presented a second petition for a rehearing wherein
they urge a point not before suggested. This court has on several occasions held that a second petition for a
rehearing would not be entertained when urged by the same party. Brandon v. West, 29 Nev. 135, 85 P. 449, 88
P. 140; Ward v. Pittsburg Silver Peak Co., 39 Nev. 80-103, 148 P. 345, 153 P. 434, 154 order denying the
first petition for P.74. [q. v.]
The practice pertaining to petitions for rehearing is governed by rule 15, which applies to criminal and civil
cases alike, and the holding that a second petition for a rehearing will not be entertained in civil cases controls in
criminal cases as well. State v. Hazzard, 76 Wash. 586, 137 P. 143; Ross v. State, 16 Wyo. 285, 93 P. 299, 94 P.
217; People v. Northey, 77 Cal. 618, 19 P. 865, 20 P. 129.
order denying the first petition for rehearing, was still available.
2
Those questions are not
here passed upon.
We refer to the original opinion, State v. Butner, 66 Nev. 127, 206 P.2d 253, 255, for a
recital of the facts. We consider it proper however to repeat that lay witness Watkins, an
eyewitness to the shooting and whose acquaintance with the defendant covered a period of
from three to eight minutes, first testified to the facts and that from such facts he reached
the opinion that the defendant was sane at the time. On cross-examination he stated: 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.
1-5. No difficult question of law is involved. In this state and in virtually every other
jurisdiction in the United States
3
a lay witness (1) having had adequate opportunity for
observation, may (2) after stating the facts, (3) give his opinion as to the sanity or insanity of
the person involved, whereupon {4) the weight to be given to his testimony is a matter for
the jury's determination.
____________________

2
The general rule appears to be that the special or pro tempore judge retains jurisdiction until the final
determination of the case. See annotation 134 A.L.R. 1130; Fisher v. Puget Sound Etc. Co., 34 Wash. 578, 76 P.
107. The texts appear unanimously to support this view.
Section 4 of article VI of the state constitution provides: In case of the disability or disqualification, for any
cause, of the chief justice or either of the associate justices of the supreme court, or any two of them, the
governor is authorized and empowered to designate any district judge or judges to sit in the place or places of
such disqualified or disabled justice or justices * * *. The governor's proclamation refers to this section of the
constitution, to the chief justice's inability to participate in case No. 3545, The State of Nevada v. Owen Caudle
Butner, and designates Hon. Frank McNamee to hear and act in respect to said cause and said matter, and the
matters properly connected therewith until a decision therein has been finally reached, and I authorize him to
discharge according to law the duties of the said office and enjoy the same, together with all the powers and
privileges thereunto appertaining until said cause be finally decided and determined by the said supreme court.

3
In Massachusetts a nonexpert witness may not testify in criminal cases as to the sanity of the person in
question. In New York he may only characterize the acts of the person as rational or irrational.
of the person involved, whereupon (4) the weight to be given to his testimony is a matter for
the jury's determination. (5) In determining the sufficiency of the witness' observation of the
person whose sanity is in question, no court and no text writer,
4
out of the hundreds of cases
considered, has seen fit to lay down a rule of law, other than that (6) it lies in the sound
discretion of the trial judge, and that (7) the appellate court will not interfere with the exercise
of that discretion, unless (8) there has been an abuse thereof.
5
We adhere to the unanimous
opinion of this court on the appeal to the effect that there was no such abuse of discretion by
the trial court.
Petitioner asserts that the authorities are overwhelmingly opposed to the law asserted in
the unanimous opinion of this court, but this is simply not so. On the contrary, there is little,
if any, dissent as to any of the eight elements we have postulated above. The many cases cited
by petitioner in which the appellate courts have held that there was no abuse of discretion in
rejecting the proffered testimony, and the many cases cited by petitioner, in which the
appellate courts have held there was no abuse of discretion in admitting the proffered
testimony, all lend support to the view expressed in this court's opinion. That opinion
followed the rule laid down by this court in State v. Lewis, 20 Nev. 333, 22 P. 241, 246, in
which, after explaining the difficulty of laying down any general rule establishing the
requisite knowledge which a witness must possess to permit him to express his opinion, the
court said that he is a competent witness if he has had sufficient observation to enable him to
form a belief [on the subject]. And after holding further that the admissibility of this
character of testimony must necessarily be left, to a great extent, to the discretion of the
presiding judge," the court concluded: "[A]nd when the testimony is admitted, unless it
clearly appears that there has been an abuse of that discretion, the appellate court ought
not to interfere."
_____________________

4
In Montana, by statute, the right of lay witnesses to testify is limited to those having an intimate
acquaintanceship with the person.

5
In Nevada unless it clearly appears that there has been an abuse thereof. State v. Lewis, 20 Nev. 333, 22
P. 241, 246.
great extent, to the discretion of the presiding judge, the court concluded: [A]nd when the
testimony is admitted, unless it clearly appears that there has been an abuse of that discretion,
the appellate court ought not to interfere. State v. Plunkett, 62 Nev. 258, 265, 142 P.2d 893,
149 P.2d 101, followed the ruling in State v. Lewis. Petitioner seeks to distinguish the Lewis
case and the Plunkett case because in the former the witness had sufficient opportunity of
observation to arrive at a correct conclusion as to the defendant's sanity, and in the latter
case the proffered witness had not had sufficient opportunity of observation to be competent
to express a correct conclusion as to defendant's sanity. (Emphasis supplied.) Dr. Bromberg,
a psychiatrist called by defendant, testified that he was insane when he shot his wife. Dr.
Tillim and Dr. Work, psychiatrists called by the state, testified that he was sane. Which one of
them had sufficient knowledge to arrive at a correct conclusion? Dr. Anderson and Dr.
Valenta, not psychiatrists, testified that defendant was insane. Dr. DeCosta and Dr. Sanders,
not psychiatrists, testified that he was sane. Which of them had sufficient knowledge to
express a correct conclusion? An array of lay witnesses testified that in their opinion
defendant was insane. Besides Watkins (for the admission of whose testimony a reversal is
sought) other lay witnesses testified that in their opinion defendant was sane. Which of these
witnesses had had sufficient opportunity of observation to express a correct conclusion? It
is obvious that both groups, whether lay or expert, diametrically opposed as they were, could
not have arrived at correct conclusions. This attempt to distinguish the Lewis and Plunkett
cases is futile.
The reference to this array of expert and lay witnesses on both sides (to say nothing of the
actual facts of the case and the prior threats made by the defendant, and the eleven letters
written by defendant to his wife from Texas during the period preceding the homicide when
defendant's expert witnesses testified defendant was insane)6 also refutes the oft
repeated assertions in both the first and second petitions for rehearing that appellant is
being sent to his death on the testimony of Watkins.
when defendant's expert witnesses testified defendant was insane)
6
also refutes the oft
repeated assertions in both the first and second petitions for rehearing that appellant is being
sent to his death on the testimony of Watkins. The jury heard all this evidence.
Petitioner asks that in the event we do not reverse the judgment, we modify the same by
reducing the degree of the crime from first-degree murder to second-degree murder.
Subdivision 6 of sec. 11032, N.C.L. 1941 Supp., provides: 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.
With reference to this section this court in State v. Robison, 54 Nev. 56, 6 P.2d 433, 436,
said: 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.
6. The request for an order reducing the degree of the crime must accordingly be denied.
7. Petitioner asks further that, if we refuse to reverse the judgment, and if we also refuse to
reduce the degree of the crime from murder of the first degree to murder of the second degree,
we should nevertheless reduce the penalty from death to life imprisonment.
____________________

6
Neither these letters nor copies thereof appear to be included in the record on appeal. Respondent however,
in its reply to the second petition for rehearing, says: Each of said letters, it is submitted, was the product of a
well oriented, reasoning mind. Petitioner does not contradict this statement, and apparently his expert witnesses
did not testify contra.
reduce the penalty from death to life imprisonment. If appellant was insane when he shot his
wife, he should, under our law, suffer no penalty whatever. If he was sane, it was an atrocious
murder. He was accorded two separate hearings before the board of paroles and pardons of
this state. Those hearings were upon his first application for commutation of sentence and
later upon his second application for commutation of sentence. In both of these hearings he
was given full opportunity, through his counsel, to present such witnesses and such
arguments as he might desire. Both petitions were denied. The power to commute the
sentence from death to life imprisonment is vested exclusively in the board of pardons and
parole commissioners by the provisions of sec. 14 of article V of the state constitution. State
v. Moran, 43 Nev. 150, 182 P. 927. Initially, it is the exclusive function of the jury to fix the
penalty at either death or life imprisonment. Section 10068, N.C.L.1929, as amended. 1947
Stats., chap. 91, p. 302. The request to reduce the penalty from death to life imprisonment
must accordingly likewise be denied.
Petition denied.
Horsey, Chief Justice.
I dissent from the order of this court denying the certain petition of the defendant and
appellant, Owen Caudle Butner, for a second rehearing and reconsideration in the
above-entitled cause, which was filed in this court on the 6th day of April, 1950, whereby it
was petitioned that the decision and judgment rendered by the court be modified, for the
reasons and upon the grounds in such petition set forth, and that, for such purpose, this court,
upon its own motion and pursuant to the provisions of rule XV of the rules of the supreme
court of the State of Nevada, recall the remittitur in said cause, theretofore, on or about the
12th day of August, 1949, filed with the clerk of the Second judicial district court of the State
of Nevada, in and for the county of Washoe.
On the 12th day of April, 1950, a hearing upon a petition for a writ of habeas corpus being
then in progress and about to be concluded before this court, and the petitioner having
conceded that there was not sufficient basis or ground for petitioner's discharge upon habeas
corpus, and that same should be dismissed, the petitioner thereupon presented, and requested
this court to consider, the above-mentioned petition for a second rehearing and
reconsideration.
I, as chief justice, pursuant to my duties to preside in this court upon that occasion, had
read carefully such petition for a rehearing, and was impressed (among other statements and
allegations) with the following statements on pages 1 and 2 thereof:
The petitioner respectfully requests such rehearing and reconsideration upon the ground
that palpable error and grievous wrong exist in connection with the previous rulings of this
Honorable Court in sustaining the action of the Trial Court in permitting the witness Jack
Watkins to express an opinion, over the objection of the petitioner, as to the sanity of the
petitioner, such opinion being based only upon acquaintance, observation and knowledge for
an admitted period of 3 to 8 minutes, and during such period, by the witness' own admission,
he was under great strain, stress and nervous excitement, and upon the further proposition and
ground that under all of the evidence adduced in this cause as to the intoxication of petitioner,
the verdict of the jury finding the defendant guilty of murder in the first degree and affixing
the death penalty, and the sentence of the Trial Court imposing upon the defendant the death
penalty, should be reduced and mitigated in accordance with the power and jurisdiction
existing in this Honorable Court, pursuant to the provisions of Subsection 6, Section 11032,
N.C.L.1931-41 Supp., to reduce the said sentence from the death penalty to one of life in
prison.
At the outset, petitioner respectfully and humbly states to this Honorable Court that in
requesting this rehearing and reconsideration, petitioner is not unmindful or unaware of
the previous consideration of this Honorable Court given to the points in question and the
previous determinations of this Court in connection therewith, and were it not for the fact
that petitioner is under a sentence of death, petitioner would refrain from presenting this
petition to the Court in deference to this Court's previous consideration and to the general
policy of finality in determination.
rehearing and reconsideration, petitioner is not unmindful or unaware of the previous
consideration of this Honorable Court given to the points in question and the previous
determinations of this Court in connection therewith, and were it not for the fact that
petitioner is under a sentence of death, petitioner would refrain from presenting this petition
to the Court in deference to this Court's previous consideration and to the general policy of
finality in determination. On the other hand, petitioner, with the same degree of respect and
humility, states to this Honorable Court the sincere, conscientious and absolute conviction of
himself and his counsel that the existing determination standing presently as the law of the
State of Nevada, with reference to the admissibility of the opinion of the witness Jack
Watkins, is erroneous in principle, is contrary to the common law of England and to nearly all
adjudicated law otherwise existing in the United States, and should not stand as the law of the
State of Nevada.
It seemed to me that there was sufficient merit to justify further consideration as to
whether or not an error of law by the honorable trial court of the Second judicial district
court, department No. 2, had occurred in relation to the overruling of the objection and the
admission in evidence of the testimony of the witness, Jack Watkins, and that it appeared
entirely reasonable to believe that this court, consequently, had failed fully to give sufficient
force and effect to the reasoning ably set forth in such petition for a second rehearing.
It seemed unreasonable to believe, according to my view, that the testimony of said
Watkins, upon the basis of his having an acquaintance with Butner of only the short period of
from three to eight minutes, as appears in the record, was competent, or, on the other hand,
whether such evidence was properly admissible.
Other reasons also appeared to me, at the time and prior thereto, worthy of consideration.
Among such reasons were matters stated by the late Mr. Chief Justice Taber in his able
opinion in the case of Wood v. State, 60 Nev. 139, 104 P.2d 1S7, on pages 140 and 141 of
60 Nev., and on page 1SS of 104 P.2d, as follows:
Taber in his able opinion in the case of Wood v. State, 60 Nev. 139, 104 P.2d 187, on pages
140 and 141 of 60 Nev., and on page 188 of 104 P.2d, as follows:
The second paragraph of rule XV of this court reads: 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.'
The only case cited by appellant in support of his position that we should entertain his
present motion, even after judgment of affirmance and denial of petition for rehearing, is In re
Rothrock, 14 Cal.2d 34, 92 P.2d 634. In that case a motion to recall the remittitur was granted
because, in issuing it, the court had inadvertently assumed that no motion for a new trial had
been made, when in fact such a motion had been made. We are not confronted here with that
or any similar situation. Furthermore, that case recognizes the rule that a remittitur will be
recalled when, but only when, inadvertence, mistake of fact, or an incomplete knowledge of
the circumstances of the case on the part of the court or its officers, whether induced by fraud
or otherwise, has resulted in an unjust decision. See 23 Cal.Law Review 354-356. In the
article on Criminal Law in 8 Cal.Jur., at p. 641, 613, the rule is thus stated: When a
remittitur has been regularly issued and filed, and there has been no violation of law or the
rules of the appellate court, and no mistake of facts and no fraud or imposition practiced by
the prevailing party upon the court or upon the losing party, the jurisdiction of the appellate
court over the case is at an end. The judgment is final and the court is without power to recall
its remittitur.'
In the case at bar the remittitur was regularly issued, and there has been no inadvertence,
fraud, imposition, false suggestion, misapprehension or mistake of fact. Furthermore, the
court is of opinion that there is no error either in the opinion and decision on appeal or in the
opinion and decision on petition for rehearing.
Analyzing the language there employed by Mr. Chief Justice Taber, in referring to In re
Rothrock, 14 Cal.2d 34, 92 P.2d 634, the matters upon the basis of which a remittitur would
be recalled, as above set forth, include, among other factors, an incomplete knowledge of the
circumstances of the case on the part of the court or its officers. It was clearly apparent that
I, due to illness, was absent from the court for precisely three months, to wit, from the 17th
day of February, 1949, to the 17th day of May, 1949, and during that time was unavoidably
prevented from performing my duties as a member of the court and as its presiding officer.
The opinion in State v. Butner, 66 Nev. 127, 206 P.2d 253, was filed in this court May 10,
1949, only seven days before I returned to the court. The opinion, by the Honorable Frank
McNamee, district judge, was written and completed prior thereto, and, such district judge
having been commissioned by his excellency, the governor, to sit in my place and stead
during my temporary disability and absence, it was, of course, entirely proper that said district
judge should also serve with the other justices of this court, Senior Justice Milton B. Badt and
Junior Justice Edgar Eather, in considering, acting upon and making proper disposition of the
first petition for rehearing, which was, by such Justices Badt and Eather, and District Judge
McNamee, denied on, or as of, the 11th day of August, 1949. The notation appended to the
order was: Horsey, C. J., being absent on account of illness, the Governor designated Hon.
Frank McNamee, Judge of the Eighth Judicial District, to sit in his stead.
Long thereafter, however, to wit, April 12, 1950 (which was nearly eleven months after my
above-mentioned return, to wit, on May 17, 1949, and about eight months after the said first
petition for rehearing was denied) was the time at which the petition for a second rehearing
and reconsideration (filed April 6, 1950) was, while this court was then in session, on said
12th day of April, 1950, presented by petitioner's counsel.
counsel. It was apparent that unless the remittitur had been ordered recalled, then and there,
by this court from the court below, this court would have lost jurisdiction. The carrying into
effect and operation of the execution of the judgment and sentence of the petitioner had been
stayed and held in abeyance merely by the stipulation of the state and the defendant (the
petitioner) until the conclusion of the proceedings then in progress before this court, and as
soon as such habeas corpus proceeding would have ended, and the petitioner ordered
remanded, such jurisdiction would, necessarily, have terminated. There seemed no alternative
possible except by recall of the remittitur. Certainly, there would have been no legal
justification for further proceeding upon habeas corpus, when petitioner's counsel had
conceded there was no further basis therefor, and consented to a dismissal of that proceeding.
I, in discussing the matter before this court and respective counsel, in open court and in the
presence of the petitioner, referred to the fact that I had had an incomplete knowledge of the
circumstances of the case on the part of the court or its officers, due to the fact that the case
was argued before this court on behalf of the defendant, Butner, while I was ill, and I had not
had the benefit of the argument in the hearing upon the appeal, nor as to the first petition for a
rehearing, the latter having been considered and denied by Mr. Justice Badt, Mr. Justice
Eather and District Judge McNamee. And yet, in order to prevent loss of jurisdiction and to
prevent the early carrying into effect of the sentence of death, I, as it clearly appeared to me,
was required to act, intelligently and properly, then and there, in association with the other
justices, during the above-mentioned session of court, on April 12, 1950, or else it would
forever, at least from a practicable standpoint, have been too late for any further
consideration, no matter how reasonable and impelling the facts and statements in the petition
for a second rehearing and reconsideration appeared to be. So, knowing, as I did, that I had
"an incomplete knowledge of the circumstances of the case on the part of the court or its
officers," which would require further study, and, also, that a serious error of law
{meaning, in effect, such a "violation of law" as was referred to by Mr.
that I had an incomplete knowledge of the circumstances of the case on the part of the court
or its officers, which would require further study, and, also, that a serious error of law
(meaning, in effect, such a violation of law as was referred to by Mr. Chief Justice Taber in
Wood v. State, supra), according to many authorities presented in said first petition for
rehearing, had occurred, I, together with Mr. Justice Eather, concurring, ordered the remittitur
to be returned from the Second judicial district court to this court. Mr. Justice Badt dissented.
Such error of law as that to which Mr. Chief Justice Taber referred, on page 141 of 60
Nev. on page 188 of 104 P.2d in Wood v. State, as embodying the language in 8 Cal.Jur. at
page 641, sec. 613, was as follows: When a remittitur has been regularly issued and filed,
and there has been no violation of law or the rules of the appellate court, and no mistake of
facts and no fraud or imposition practiced by the prevailing party upon the court or upon the
losing party, the jurisdiction of the appellate court over the case is at an end. (Italics mine).
The converse is, of course, true, and it is as clearly implied that if a violation of law or
error of law has occurred, the remittitur will be recalled. There is no constitutional provision,
or statute, which I have been able to find or which has been brought to my attention (in
which, upon an occasion such as occurred on April 12, 1950, in such proceeding, and in
which the question was whether the remittitur should be recalled in order that the members of
the court could feel free to consider the petition for a second rehearing and reconsideration) in
which the chief justice was not entitled to act, in the interest of justice, precisely as I did, in
the instant proceeding. Further reference should be made, also, to said case of In re Rothrock,
14 Cal.2d 34, 92 P.2d 634, and, particularly, to the further authorities on pages 636 and 637
therein, in which are cited the case of Rowland v. Kreyenhagen, 24 Cal.
Kreyenhagen, 24 Cal. 52; also a note in 23 California Law Review at page 354; also the case
of State v. Ramirez, 34 Idaho 623, 203 P. 279, 280, 29 A.L.R. 297. See, also, State v.
Hawkins, 121 S.C. 290, 114 S.E. 538, 27 A.L.R. 1083 (containing an able statement of
various phases of questions as to the right of a supreme court to recall its remittitur upon
sufficiently good reasons or causes).
It would, in the circumstances at the time, on April 12, 1950, have been entirely
inexpedient, if not altogether impracticable, to have determined that the Honorable Frank
McNamee, district judge, should, then and there, have been considered to have been still
commissioned to sit in the subsequent and much later proceeding, in which sufficient merit
appeared from the facts and statements of the petition as to have justified the recalling of the
remittitur. As to whether such a special judge during the temporary illness of the regular
judge should have continued to act eight months later, for the purpose of a further or second
petition for rehearing and reconsideration, or whether the present regular justice should have
served as to that particular proceeding, reference is made to a valuable and well-considered
annotation entitled, Substitution of Judge in Criminal Case, such annotation being in
connection with the case of Commonwealth of Pennsylvania v. Joseph Thompson, Appt., 328
Pa. 27, 195 A. 115, also reported in 114 A.L.R. 432, and in which such annotation
commences on page 435 and continues to and including page 443.
Some consideration will now be given to the aforementioned case of In re Rothrock, supra,
and particularly to some of the matters included in the Rothrock opinion, to wit, on pages 636
and 637 of 92 P.2d. Certain excerpts contain pertinent paragraphs in relation to the basis for a
second rehearing and reconsideration and the recalling of a remittitur under proper
circumstances. Such excerpts and paragraphs, from which quotation is made, are,
respectively, taken from the above-mentioned cases of Rowland v. Kreyenhagen, supra, and
State v. Ramirez, supra.
supra, and State v. Ramirez, supra. In said case of In re Rothrock, supra, on said pages 636
and 637, of 92 P.2d, is the following:
A mistake of fact on the part of an appellate court which results in prejudicial error or a
miscarriage of justice affords a proper ground for recall and correction of the remittitur. This
is well settled. Exceptions to the general rule that an appellate court loses all control and
jurisdiction over a cause after the remittitur has been issued by its order and filed in the court
below, were declared in this state in 1864, in the case of Rowland v. Kreyenhagen, 24 Cal.
52. It was there said: * * * This general rule rests upon the supposition that all the
proceedings have been regular, and that no fraud or imposition has been practiced upon the
Court or the opposite party; for if it appears that such has been the case, the appellate Court
will assert its jurisdiction and recall the case. Against an order or judgment improvidently
granted, upon a false suggestion, or under a mistake as to the facts of the case, this Court will
afford relief after the adjournment of the term; and will, if necessary, recall a remittitur and
stay proceedings in the Court below. This is not done, however, upon the principle of
resumption of jurisdiction, but upon the ground that the jurisdiction of the Court cannot be
divested by an irregular or improvident order. In contemplation of law, an order obtained
upon a false suggestion is not the order of the Court, and may be treated as a nullity. If, under
color of such an order, the proceedings have in part found their way back to the Court below,
yet in law they are considered as still pending in the appellate Court, and that Court may take
such steps as may be necessary to make the fact and law agree.' This doctrine is quoted with
approval in Trumpler v. Trumpler, 123 Cal. 248, 55 P. 1008, and Isenberg v. Sherman, 214
Cal. 722, 7 P.2d 1006.
In a note in 23 California Law Review at page 354, which digests numerous authorities
on the subject, the following conclusion is expressed: It would appear from these cases that
a remittitur will be recalled when, but only when, inadvertence, mistake of fact, or an
incomplete knowledge of all the circumstances of the case on the part of the court or its
officers, whether induced by fraud or otherwise, has resulted in an unjust decision.'
from these cases that a remittitur will be recalled when, but only when, inadvertence,
mistake of fact, or an incomplete knowledge of all the circumstances of the case on the part of
the court or its officers, whether induced by fraud or otherwise, has resulted in an unjust
decision.'
In State v. Ramirez, 34 Idaho 623, 203 P. 279, 280, 29 A.L.R. 297, a criminal case
wherein the defendant had been convicted of murder and his punishment had been fixed by
the jury at death, the supreme court of the state of Idaho had under consideration the question
of its power to recall a remittitur. The ground urged in support of the motion to recall was
that counsel failed to fully brief and argue the question of the power of this court to modify
the judgment by reducing the penalty to life imprisonment, and that this court was led into
error by reason of a suggestion that it was without such power.' After reviewing authorities
from many jurisdictions, and quoting the doctrine of Rowland v. Kreyenhagen, supra, as
being in conformity with the preponderance of judicial authority, the court concluded that a
proper case for the exercise of its power to recall and correct its mandate was presented,
saying: This court, upon respondent's suggestion, assumed, although it did not decide, that it
had no power to reduce the penalty fixed by the jury. We do not mean to be understood as
inferring that fraud or imposition was practiced upon this court by either of the parties
connected with the cause, but if the court fell into error it was by reason of the fact that
counsel failed to properly brief and present the question now under consideration. The
questions involved here are of the utmost importance to appellant, and every consideration of
justice demands that this court determine its power both to recall the remittitur and to reduce
the punishment in this case, and that the punishment be reduced if the facts do not warrant the
imposition of the death penalty. While the circumstances of this case do not require the
adoption of so broad a rule as is followed in New York or Oklahoma, yet there is ample
authority to justify us in holding that this court retains jurisdiction of an appeal, during
the term at which a judgment is rendered, where such judgment was inadvertently given,
in consequence of a false suggestion * * *.' See, also, Municipal Bond Co. v.
of so broad a rule as is followed in New York or Oklahoma, yet there is ample authority to
justify us in holding that this court retains jurisdiction of an appeal, during the term at which
a judgment is rendered, where such judgment was inadvertently given, in consequence of a
false suggestion * * *.' See, also, Municipal Bond Co. v. City of Riverside, 138 Cal.App. 267,
32 P.2d 661; Haydel v. Morton, 28 Cal.App.2d 383, 82 P.2d 623; 2 Cal. Jur., p. 1068, sec.
634; note 84 A.L.R. 579, 591, et seq.; 3 Am.Jur., p. 754, par. 1264; 5 Cor.Jur.Secundum,
Appeal and Error, sec. 1996, p. 1561.
In the instant case, it is my view, after most careful consideration from the record, that the
trial court (perhaps due to pressure of time and insufficient opportunity for full consideration,
as is often the case in the midst of such trials), in the matter of the testimony of Jack Watkins,
apparently did not fully conceive or realize the full import and effect of the many authorities
which clearly have held that in order for a lay witness to be qualified or competent to testify
upon the question of whether or not a person alleged to have committed a serious crime was
sane or insane at the time of the commission of the act, such witness, in order that such
evidence may be deemed admissible, must have been then in possession of sufficient
association, acquaintance and knowledge as to have justified the witness in reaching a
sufficiently sound and reasonable conclusion. Not only is it unwise and valueless to permit
any such evidence when no sufficient foundation has existed or upon which same may be
predicated, but, on the contrary, it is, unquestionably, misleading and dangerous.
Referring to the trial court in which the Honorable A. J. Maestretti presided, in the Second
judicial district court, in and for the county of Washoe, Department 2, I truly believe that it
was highly erroneous for the learned district judge to have overruled the objection and to have
permitted the witness, Jack Watkins, to have testified that in his (Watkins') opinion Owen
Caudle Butner was sane, notwithstanding the admitted fact that on December 30, 1947,
the only time Watkins had ever seen Butner, or had any acquaintance, association or
knowledge of him whatever, was upon that occasion, concerning which he testified in
detail and which covered only from three to eight minutes.
Butner was sane, notwithstanding the admitted fact that on December 30, 1947, the only time
Watkins had ever seen Butner, or had any acquaintance, association or knowledge of him
whatever, was upon that occasion, concerning which he testified in detail and which covered
only from three to eight minutes.
After reading and considering many of such authorities, and finding no contrary view
whatever based upon evidential fact rather than conjecture or conclusion, it appears clear that
the said honorable district judge was mistaken in his conception, and that such ruling and
order in admitting such evidence by way of ultimate conclusion to the effect that Butner, at
the time of the shooting of the deceased, was sane, was erroneous, and, in my view,
constituted reversible error.
Such misconception in conceiving the existence of sufficient opportunity for observation,
association, acquaintance and knowledge, in the matter of Jack Watkins' visit of not more
than about eight minutes, as to enable Watkins to have become intelligently and reasonably
informed as to the subject's mental condition, is almost beyond the pale of any substantial
credence or reasonable belief, as will be treated and dealt with further on in this dissenting
opinion, particularly in discussing some of our own Nevada cases, especially State v. Lewis,
20 Nev. at pages 333 to 363, 22 P.2d 241, wherein Mr. Chief Justice Hawley, one of the
greatest jurists who ever served upon this court, has cited many authorities upon the question
involved in that case, which is similar in its facts and reasoning to the instant Butner case, and
I find myself unable to question the efficacy, soundness, salutary principle and strength of
such reasoning.
But, before reaching that opinion and the other Nevada cases, and, in connection with
some of them discussing certain phases and questions at some length, and, as to others,
merely referring to them, I shall state, further, that, as a basis for recalling said remittitur, on
April 12, 1950, one of the principal reasons, as above indicated, was because of there being
too short a time, from three to eight minutes, in which Jack Watkins could have acquired,
reasonably, from any common-sense viewpoint, sufficient observation, acquaintance or
knowledge upon which he could have predicated an opinion of any value or admissibility,
as to Butner's mental condition.
indicated, was because of there being too short a time, from three to eight minutes, in which
Jack Watkins could have acquired, reasonably, from any common-sense viewpoint, sufficient
observation, acquaintance or knowledge upon which he could have predicated an opinion of
any value or admissibility, as to Butner's mental condition.
Likewise, referring again to In re Rothrock, supra, and, particularly, to Rowland v.
Kreyenhagen, supra, I shall refer, particularly, again to one sentence of the opinion in In re
Rothrock, on page 636 of 92 P.2d, as follows: A mistake of fact on the part of an appellate
court which results in prejudicial error or a miscarriage of justice affords a proper ground for
recall and correction of the remittitur.
Much may be said, also, as to the statement as to fraud or imposition as justifying, in a
proper case, the recalling of the remittitur. And it would reasonably appear that permitting the
witness, Jack Watkins, to give such opinion to the effect that petitioner, Owen Caudle Butner,
was sane upon the occasion in question, in view of the absence of any substantial
acquaintance or knowledge on his part, was so mistaken, even so grossly careless and
negligent in its effect, as to have amounted to imposition. There was ample justification,
therefore, for the recalling of the remittitur.
The question of mistake of law is so apparent as to require little further mention or
reference. The facts above detailed, at length, as to the admissibility of the conclusion of Jack
Watkins to the effect that Butner was sane, after the trial court had overruled defendant's
objection and permitted Watkins to testify to such opinion or conclusion, thereby placing
same before the jury and in the record, constituted, in my view, at least, such a
misconception, not only of fact but of law, as to have constituted error of law, and, in
consequence, same was, and is, reversible error.
In this Nevada Supreme Court there is no case (except the very recent instant case of State
v. Butner, supra,) in which the rule or doctrine in relation to permitting a lay witness to
express an ultimate opinion or conclusion as to whether or not a subject is sane or insane
is at variance with or different from the great weight of authority upon that question.
supra,) in which the rule or doctrine in relation to permitting a lay witness to express an
ultimate opinion or conclusion as to whether or not a subject is sane or insane is at variance
with or different from the great weight of authority upon that question. No witness, insofar as
I have been able to find, has been permitted, in any well considered case in the federal or state
courts, except in the states of New York and Massachusetts, with, perhaps, one or two
exceptions, to state, without clearly or well-defined qualifications or conditions, his ultimate
opinion or conclusion to the effect that the mental condition of the person involved is sane or
insane.
One of the most comprehensive and exhaustive treatments of the subject which has come
to my attention is in connection with the case of State of Washington, v. Schneider, 158
Wash. 504, 291 P. 1093, 72 A.L.R. 571. A valuable annotation in connection with that case is
captioned, as to subject matter, Competency of Testimony of Nonexperts on Question of
Sanity or Insanity in Criminal Cases. The reported case of State v. Schneider, supra,
commences on page 571 of 72 A.L.R. and said annotation immediately follows, on page 579
thereof, to and including page 587. The general rule, in section I of the said annotation, and
the subject matter, on page 579, is as follows:
I. General Rule.
In all, with the exception of two jurisdictions, it is held that in criminal cases nonexpert
witnesses will not be permitted to express a general opinion as to sanity; nor can they give an
opinion independent of the facts and circumstances within their own knowledge; but they
may detail the relevant facts known to them, and thereupon express an opinion as to the
sanity of the person whose mental condition is being investigated. The value of such
testimony will depend largely on the opportunities of the witnesses for correct observation of
the appearance and conduct of the person whose mind is claimed to be unsound, as well as
the character of such appearance and conduct."
is claimed to be unsound, as well as the character of such appearance and conduct.
Then follows a vast collection of cited cases, arranged alphabetically as to states and the
District of Columbia, and which includes representative cases from about forty territorial
jurisdictions. The rules in New York and Massachusetts are exceptional. On page 586, of 72
A.L.R., referring, in the annotation, to the subheading II. Rule in New York, it is stated: In
New York the general rule is slightly modified, so that a nonexpert witness may testify as to
the acts of the person whose sanity is in question, and characterize them as rational or
irrational, but may not give an opinion as to sanity or insanity. (Citing many New York
cases.)
And on page 587, of 72 A.L.R., referring to subheading III. Rule in Massachusetts, is the
following statement of the rule: In Massachusetts the general rule is repudiated, and under
no circumstances is nonexpert testimony competent in criminal cases, on the question of
sanity or insanity. (Italics mine.)
In such a vast collection of representative cases, as above stated, and eliminating New
York and Massachusetts for the reasons set forth, all of them, with their varying expressions
and phraseology, clearly recognize the qualifying or conditional statements and circumstances
of fact and the implied or express limitations which will permit or justify a trial court, in a
case in which a person is alleged to have committed a criminal offense at a time at which he
is alleged to have been insane, to receive and admit testimony of a lay witness, in which, by
way of his ultimate opinion or conclusion, he states that such person is sane or insane. A
typical and well-considered case involving such question of competency of such a witness
under such circumstances, expressed with ability and clarity, is the opinion in the case of
State v. Schneider, supra. In the opinion in that case, 158 Wash. 504, 291 P. 1093, 1096, at
page 577 of 72 A.L.R. it is stated: It is unquestionably the rule that, before nonexpert
testimony as to the mental condition of a party to an action may be rendered competent,
the witness must show an acquaintance with the party, concerning whose mental
condition he is testifying, of such intimacy and duration as to clearly indicate that he was
well enough acquainted with such person to render his testimony of value in determining
the issues presented for decision, and he must also testify as to the certain specific acts of
such person which form the basis for his conclusion as to the mental condition of such
person."
that, before nonexpert testimony as to the mental condition of a party to an action may be
rendered competent, the witness must show an acquaintance with the party, concerning whose
mental condition he is testifying, of such intimacy and duration as to clearly indicate that he
was well enough acquainted with such person to render his testimony of value in determining
the issues presented for decision, and he must also testify as to the certain specific acts of
such person which form the basis for his conclusion as to the mental condition of such
person. (Italics mine.)
In that case the trial court committed reversible error in sustaining the objection to a
question propounded to the witness Eden, and in not permitting such witness to testify. It is
clearly apparent why the supreme court, by Judge Beals' opinion, determined that such
reversible error had occurred, because the witness, Eden, had known the defendant,
Schneider, off and on for a long time, was well and familiarly acquainted with him, that they
worked together at the brewery for twelve years, and that the witness stated in detail many
acts and occurrences and certain changes in Schneider's acts and conduct about two weeks
prior to the killing; that during this two weeks' period he had noticed a difference in
appellant's conduct, and had observed appellant standing with his head bent, talking to
himself, and that appellant had gone downhill fast and didn't know what he was doing any
more'; that on one occasion appellant had allowed a batch of brew to freeze while he was
watching it; and, again, that appellant was half of the time out of his head.' In spite of the
lengthy testimony of the witness, Eden, and the question of appellant's counsel, to wit, Now,
from all he said and all you heard and your observation of his conduct, Mr. Eden, what would
you say as to whether or not he was in his right mind, to which respondent's counsel (the
state) objected upon the ground that there was not sufficient foundation laid, and the
objection was sustained, and Mr. Justice Beals, therefore, 158 Wash. 504, 291 P. 1093 on
page 1097, 72 A.L.R. on page 577, after further statements and expressions in his
opinion, reached the following determination:
on page 1097, 72 A.L.R. on page 577, after further statements and expressions in his opinion,
reached the following determination:
It must be held that the testimony of the witness Eden fulfills these conditions. He had
known and worked with appellant for twelve years, and testified that during the period of two
weeks prior to March 31 a change had apparently come over appellant, concerning which
the witness testified specifically and at length.
Under the prior decisions of this court, it must be held that in the case at bar the trial
court committed reversible error in sustaining the objection to the question propounded to
the witness Eden. (Italics mine.)
Despite the long period of acquaintance, observation and knowledge acquired over about
twelve years by the witness Eden, the action of the trial court in sustaining the state's
objection caused the witness' testimony to have been denied admission, and, in the opinion by
Mr. Justice Beals, the supreme court of that state, after having stated the reasons (as
hereinabove set forth), reached the conclusion, and so held, that, in effect, Eden had fulfilled
all the necessary conditions, and his testimony should have been admitted.
How different, by comparison, would have been the result, measured by the test so clearly
reasoned by Mr. Justice Beals in the Washington case, if, under other circumstances, the
witness Eden had been allowed to testify even in spite of the fact that Eden had known
Schneider for a period of not more than from three to eight minutes, and had no other
acquaintance with him or knowledge of him prior to the killing? By any creditable or reliable
authority or reasoning could it be reasonably believed that the learned Supreme Court of the
State of Washington could, or would, under circumstances similar to those in the instant case,
have determined or held that such testimony would, or probably could, have been admissible?
It seems to me that fairness requires at least some mention of at least a few of the many
authorities referred to and briefly discussed and digested in said above-mentioned
annotation 72 A.L.R. commencing on page 579 and continuing to and including page 5S7.
referred to and briefly discussed and digested in said above-mentioned annotation 72 A.L.R.
commencing on page 579 and continuing to and including page 587. The brief digests of
some of such cases therein, on page 586, are hereby quoted as follows:
In State v. Hogan, 1910, 145 Iowa, 352, 124 N.W. 178, where a witness had met the
person under inquiry, a deaf-mute, only once, and had communicated with her by writing, it
was held that the acquaintance was not general enough to allow an expression of an opinion
as to sanity or insanity. See to the same effect, State v. Rohn, 1909, 140 Iowa, 640, 119 N.W.
88.
In State v. Von Kutzleben, 1907, 136 Iowa 89, 113 N.W. 484, it was held that witnesses
called from among bystanders at a trial were not competent to testify as to the sanity or
insanity of the defendant, having observed only his actions on trial.
In State v. Turner, 1927, 126 Me. 376, 138 A. 562, where the witness had seen and
observed the defendant for only a few minutes, not more than twenty, it was held that he was
not competent to express an opinion as to the defendant's sanity.
A witness was held to be competent, in Bishop v. State, 1910, 96 Miss. 846, 52 So. 21,
where he had seen the defendant every day or so while he was young, and had known him
intimately for twenty-seven or twenty-eight years.
In State v. Penna, 1907, 35 Mont. 535, 90 P. 787, two newspaper reporters who had
talked with the defendant for about thirty minutes shortly after the homicide were held not to
be intimate acquaintances' within the statute allowing such persons to express an opinion as
to sanity or insanity.
In Shields v. State, 1926, 104 Tex.Crim. 253, 283 S.W. 844, 845, the court said: The
rule seems well settled in this state that a nonexpert witness, who has shown reasonable
opportunity to observe the acts and conduct of the party inquired of, may state that he has
never observed anything in the acts, speech, demeanor, or conduct of such party which
were peculiar or which led witness to believe or conclude such party of unsound mind or
abnormal.'"
observed anything in the acts, speech, demeanor, or conduct of such party which were
peculiar or which led witness to believe or conclude such party of unsound mind or
abnormal.'
I have read and fully considered the first petition for rehearing, filed June 24, 1949, by able
counsel on behalf of the petitioner, Owen Caudle Butner, and in which his counsel cited
many cases. Some of the cases to which they referred will be hereinafter mentioned, and
many more which have been cited and presented in connection with such petition have
commanded my earnest attention and careful consideration, and I have noted with regret that
my learned associates, Mr. Justice Badt and Mr. Justice Eather, and the Honorable Frank
McNamee, district judge then sitting in the hearing of arguments upon the appeal in said
instant case and in such petition for rehearing, did not find it expedient, necessary or desirable
that a further opinion be written subsequent to the hearing of the argument in connection with
such petition and in ordering the denial thereof.
In view of the striking and impelling situation which has been disclosed, to my mind, both
as to the first petition for a rehearing and, also, in connection with the petition for a second
rehearing and reconsideration in the instant proceeding, in which my learned associate
justices have, by a majority vote, decided and ordered that, on such petition for a second
rehearing and reconsideration, same should be denied, I have, with reluctance, found myself
impelled to dissent.
As above indicated, I most seriously question, in view of the overwhelming weight of
authority, as to whether the honorable district judge, A. J. Maestretti, upon the trial in the
district court, did not commit reversible error in admitting in evidence the testimony of the
witness Jack Watkins, and in which he was permitted to state before the jurors that in his
opinion Owen Caudle Butner was sane at the time of the alleged killing, on December 30,
1947.
Noting again the able reasoning of the opinion by Mr. Justice Pattangall, of the Supreme
Court of the State of Maine, in State v. Turner, supra (and to which reference has been made
in 72 A.L.R. in the annotation, on page 586), that learned justice, in the opinion, in 126 Me.
376, 138 A. 562, stated, on page 563, the following: But the evidence offered would have
been rejected in any court. The record does not show that the witness had sufficient
opportunity to form any such opinion as would have enabled him to have answered
intelligently the questions asked him. If he had been an expert alienist, it would have been no
abuse of the wide discretion given the court concerning the reception of expert testimony to
have rejected the evidence. We certainly know of no jurisdiction in which the opinion of a lay
witness, as to the sanity of a man, whom he has seen less than 20 minutes, would be regarded
as admissible. The rejection of this evidence, from any point of view, was eminently proper.
And on pages 10 and 11 of the first petition for rehearing, filed June 24, 1949, the opinion
of the Supreme Court of the United States in the case of Turner v. American Security and
Trust Co., 213 U.S. 257, 29 S.Ct. 420, 53 L.Ed. 788, on pages 789 and 790, has been quoted
from at length. Quoting in part from the said opinion in the Turner case, on said pages
789-790 of 53 L.Ed. that high and learned court stated: This is not to say that, in a very clear
case, an appellate court ought not to review the discretion of the trial judge. For instance, if it
should appear that the witness had never spoken to the testator or seen any significant act, but
merely observed him driving from day to day through the streets, and the opinion of such a
witness as to sanity had been received, it would be the duty of the appellate court to correct
the error. On the other hand, if the witness for years had been in constant communication with
the testator, had frequently conversed with him and observed his conduct from day to day, the
exclusion of the opinion of the witness ought to be corrected by the appellate court.
appellate court. These are instances of a plain abuse of judicial discretion.
In this dissenting opinion I feel impelled to consider and briefly to discuss the three
Nevada Supreme Court cases, to wit: State of Nevada v. Harrington, 12 Nev. 125; State v.
Lewis, 20 Nev. 333, 22 P. 241, and State v. Plunkett, 62 Nev. 258, 265, 142 P.2d 893, 149
P.2d 101.
As to the matter of the opinion of a witness in the Harrington case, supra, the general rule
was followed, the subject not being one involving the matter of the sanity or insanity of the
then defendant. From the syllabus, the witness testified that just preceding the shooting,
deceased had hold of the defendant; that defendant was trying to free himself, and having
described the action of the parties, was asked: What did he (deceased) appear to be doing
with his hand or arm?' the court refused to allow the question: Held, not to be erroneous,
inasmuch as the witness had already stated all he saw or knew, and that the question called
for an opinion, not the statement of any fact.
As to the facts and the reasoning of the opinion in State v. Lewis, supra, written by the
very learned jurist, the late Mr. Chief Justice Hawley, I will hereinafter consider and discuss
the portions of such opinion as may seem, herein, advisable.
In the case of State of Nevada v. Plunkett, supra, the late Mr. Justice Ducker, stated, on
page 284 of 62 Nev., 149 P.2d 110: It is insisted that it was error to sustain the state's
objection to the following question asked of Mazie Chester, a witness for defendant: Q. I ask
you to state, from your acquaintance with him, as to his appearance of having rational mental
capacity?' There was no improper exercise of discretion in this ruling. The witness had met
defendant only twice and there is nothing to show that the meetings were otherwise than
casual, without opportunity for such observation as would have enabled the witness to form
any judgment of value as to his mental condition. As said in State v. Lewis, 20 Nev. 333, 22
P. 241, 246: 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.'"
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.'
The fundamental rule, therefore, first fully elucidated, explained and applied in State v.
Lewis, supra, was followed, with approval, in State of Nevada v. Plunkett, supra.
Mr. Chief Justice Hawley's exhaustive and able opinion in the Lewis case, written by him
in 1877, has been, and still remains, the law of this state in relation to a lay witness giving his
opinion as to sanity or insanity, with its necessary qualifications and conditions as to
competence and the admissibility of such opinion evidence, at least prior to the opinion in
State v. Butner, supra. It has seemed advisable to quote rather fully from State v. Lewis,
supra, commencing on p. 346 of 20 Nev., and on p. 245 of 22 P. as follows: There was no
strict rule applied as to the general knowledge of the witnesses introduced by the defense.
Great latitude was allowed upon both sides. Some of the facts stated by the witnesses for the
defense, and upon which their opinions were based, did not even tend to establish insanity in
the remotest degree; and the reasons given by some for their opinions were very weak, and in
a few instances so unreasonable and absurd as to be unworthy of mention. On the other hand,
some of the witnesses who testified on the part of the State had such a brief acquaintance with
and limited knowledge of the appellant as to deprive their testimony of any special weight or
value. The witness Hume, against the admission of whose opinion the argument of counsel is
principally based, testified that he had only known defendant for about four months prior to
the homicide; that he saw him every day during the summer; that he generally met him as he
went to breakfast; that he sat at the same table, and ate with him once or twice; that he
noticed him around the house; that he observed his manner of speech and conversation;
that he saw him in the evening and night before the homicide; that on the morning after
the homicide he went to Bullion with him, and had considerable conversation on the way.
noticed him around the house; that he observed his manner of speech and conversation; that
he saw him in the evening and night before the homicide; that on the morning after the
homicide he went to Bullion with him, and had considerable conversation on the way. The
real question to be determined by the jury was as to appellant's sanity or insanity at the time
of the homicide. The testimony as to the condition of his mind at times previous and
subsequent thereto is admissible solely upon the ground that it tends to show the mental
condition at the time of the homicide. The acquaintance of this witness with appellant,
although slight, embraced a very important period of time. He saw him just before and
immediately after the commission of the act. His knowledge seems to have been sufficient to
enable him to form and express an opinion, and we cannot say that he did not have sufficient
opportunities to arrive at a correct conclusion in regard to the condition of appellant's mind.
When the opinions of such witnesses, from the necessities of the case, are received as
evidence, the weight of their testimony does not depend so much upon the number as upon
the intelligence of the witnesses, and their capacity to form correct opinions, their means of
information, the unprejudiced state of their minds, and the nature of the facts and
circumstances testified to in support of their opinions. It would, perhaps, be difficult to lay
down any general rule establishing precisely the requisite knowledge which a witness must
possess in order to justify or warrant the expression of an opinion. It may, however, be safely
said that if the witness has had sufficient observation to enable him to form a belief upon the
question he is a competent witness. The admissibility of this character of testimony must
necessarily be left, to a great extent, to the discretion of the presiding judge; and when the
testimony is admitted, unless it clearly appears that there has been an abuse of that discretion,
the appellate court ought not to interfere. In Baldwin v. State [12 Mo. 238], the court said:
Before a witness should be received to testify as to the condition of mind, it should appear
that he had an adequate opportunity of observing and judging of capacity.
of mind, it should appear that he had an adequate opportunity of observing and judging of
capacity. But so different are the powers and habits of observation in different persons that no
general rule can be laid down as to what shall be deemed a sufficient opportunity of
observation, other than that it has in fact enabled the observer to form a belief or judgment
thereupon; and the weight of his opinion must depend upon a consideration of all the
circumstances under which it was formed.' 12 Mo. 238. In Brown v. Com. [77 Ky. 398], the
court, in discussing this question, said: Exactly what is meant by the expression in some
cases, when such evidence has been admitted, that the witnesses must detail the facts upon
which the opinion is based, we do not find explained. If the admissibility of the opinion as
evidence must depend upon the facts from which it is formed it is manifest that there is a
question for the court antecedent to its introduction, and that to promulgate a general rule as
to the amount and quality of the evidence that should satisfy the court in every case would be
impossible. The court must be satisfied that the witness has had an 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. * * * It must vary with the
circumstances of each case, and by these circumstances the jury must determine for
themselves the weight to which the opinion may be entitled. It is not intended that the
admissibility of the evidence shall be made to depend upon the ability of the witness to state
specific facts, from which the jury may, independent of the opinion of the witness, draw a
conclusion of sanity or insanity; for it is the competency of the opinion of the witness that is
the subject of inquiry. The ability of the witness to detail certain facts which are in themselves
substantive evidence of the condition of the mind, may add very greatly to the weight of the
opinion given in evidence, but they will not of necessity affect the question of
competency.'"
to the weight of the opinion given in evidence, but they will not of necessity affect the
question of competency.'
A few of the important features gleaned from the reasoning of Mr. Chief Justice Hawley's
very clear and able opinion should, it is believed, be properly emphasized. Judge Hawley said
the witness Hume had only known defendant for about four months prior to the homicide;
that he saw him every day during the summer; that he generally met him as he went to
breakfast. Reference is made, also, to the detailed facts above mentioned, from which it is
clearly apparent that at least for a considerable period of time (for about four months) the
witness Hume had known and been acquainted with the defendant, Lewis, and had observed
him. And Judge Hawley said, based upon such facts: His knowledge seems to have been
sufficient to enable him to form and express an opinion, and we cannot say that he did not
have sufficient opportunities to arrive at a correct conclusion in regard to the condition of
appellant's mind. (Italics mine.) It is significant that Judge Hawley, because of the witness'
observation and knowledge of four months, did not say positively and with emphasis that
same seems to have been sufficient * * * and we cannot say that he did not have sufficient
opportunities, the learned judge thus writing with caution, rather than with positive certainty.
It should be particularly noted, also, further quoting from said opinion: On the other hand,
some of the witnesses who testified on the part of the state had such a brief acquaintance
with and limited knowledge of the appellant as to deprive their testimony of any special
weight or value (Italics mine); although, in that particular case: There was no strict rule
applied as to the general knowledge of the witnesses introduced by the defense, and that:
Great latitude was allowed upon both sides, which may have caused Judge Hawley not to
speak quite so positively as perhaps he otherwise would, in reference to depriving their
testimony of any special weight or value," rather than expressly to have denied the
admissibility of the testimony of such witnesses; nevertheless, it is apparent that there
was a wholesome thread of consistent reasoning throughout Judge Hawley's opinion.
special weight or value, rather than expressly to have denied the admissibility of the
testimony of such witnesses; nevertheless, it is apparent that there was a wholesome thread of
consistent reasoning throughout Judge Hawley's opinion. Such reasoning was that Hume's
testimony, having special weight or value, it had effect upon the right to its admissibility,
because his knowledge seems to have been sufficient to enable him to form and express an
opinion, it being apparent that if he did not present such sufficient knowledge, the condition
precedent, to wit, that he was competent to form and express such opinion, such admissibility
must, necessarily, have been denied.
Judge Hawley cited many authorities, and expressly discussed them in the opinion. The
learned jurist, on pages 347 and 348 of 20 Nev. on page 246 of 22 P., quoted from Brown v.
Commonwealth, 14 Bush 405, and, in that connection, stated: * * * The court must be
satisfied that the witness has had an 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.
And at another point it was there stated by Judge Hawley that: The admissibility of this
character of testimony must necessarily be left, to a great extent, to the discretion of the
presiding judge; and when the testimony is admitted, unless it clearly appears that there has
been an abuse of that discretion, the appellate court ought not to interfere. In Baldwin v.
State, the court said: Before a witness should be received to testify as to the condition of
mind, it should appear that he had an adequate opportunity of observing and judging of
capacity.'
Referring to the testimony of Jack Watkins, a witness for the State in the instant case, the
State offered such testimony, to which the defendant objected, and the matter was argued at
some length before Judge Maestretti. Defendant's counsel strongly contended, in effect, that
before such evidence could properly be admitted, a sufficient foundation should be laid,
and which had not been done.
before such evidence could properly be admitted, a sufficient foundation should be laid, and
which had not been done. After further discussion between the respective counsel and the
court, Mr. Bartlett, for the State, said he would lay a further foundation, if Your Honor
please.
The Court: You may proceed.
Mr. Bartlett: (Q.) Did you know the defendant, Butner, before this time, Mr. Watkins? A.
I did not.
Q. And for how long a period of time would you say you saw him on that evening from
the time you first saw him in the house, until after he had left? A. That would range from
three to eight minutes.
Q. And you have never had an opportunity since then to know or observe the defendant
with any particularity, have you? A. Other than sitting in the courtroom.
Q. Now, basing your answer upon the fact that you have seen other people who are
insane, and upon your observation of this man at the time of the shooting, do you have an
opinion as to whether or not at that time he was sane or insane?
Mr. Vargas: For the record, if the Court please, we will make the same objection.
The Court: The Court's understanding is that the defense relies upon the insanity of the
defendant existing at the time of the commission of the act. That being true, the objection is
overruled, and you may answer the question.
The Witness: (A.) Well, at the time of the shooting, I would say that he was very sane.
(Italics mine.)
It is apparent that the honorable trial judge, in overruling said objection and permitting the
witness, Watkins, to state his opinion and conclusion to the effect that the defendant was
very sane, entirely failed to take into account the necessity of determining:
First, whether or not there were sufficient facts testified to by the witness, Watkins, to
have assured that such witness was competent, by way of his above-stated conclusion, that
the defendant was sane. In the light of the tremendous weight of authority, did such facts, for
instance, as to whether the observation, acquaintance and knowledge during the very
short period of from three to eight minutes, as the witness testified, afford to such
witness any intelligent and common-sense basis upon which to reach his ultimate
conclusion that the defendant was, at the time of the shooting of the deceased, sane?
instance, as to whether the observation, acquaintance and knowledge during the very short
period of from three to eight minutes, as the witness testified, afford to such witness any
intelligent and common-sense basis upon which to reach his ultimate conclusion that the
defendant was, at the time of the shooting of the deceased, sane? The witness, insofar as he
knew, had never seen the defendant before, and had had absolutely no prior acquaintance or
association with the defendant whatsoever, and, of course, had not before observed him, nor
neither had he any knowledge of or concerning him. As hereinbefore set forth in regard to the
defendant, Lewis, in State v. Lewis, supra, the witness Hume had known Lewis about four
months, had seen him every day during the summer, generally met him as he went to
breakfast, noticed him from time to time around the house, and observed his manner of
speech and conversation, saw him in the evening and the night before the homicide, and on
the morning after the homicide the witness went with Lewis to Bullion, and they had
considerable conversation on the way; and upon such facts, measured by the well-thought-out
and careful reasoning of the able Judge Hawley, there was sound and reasonable basis to
conclude, as that learned jurist did conclude, that sufficient foundation was thereupon
established to permit the witness Hume's testimony to be admitted.
There is a very great difference and contrast as between the foundational facts in the Lewis
case and those in the instant case of State v. Butner; such difference is as great, by way of
comparison, as that between day and night. Because of such substantial acquaintance during
the four months in which Hume knew Lewis, there were contacts between them, in which
there were happenings, occurrences, salutations, conversations, actions and conduct, which
naturally, were observed by Hume, and by which he had the means of observing and of
becoming acquainted with and coming to know, and of actually knowing, Lewis. It was just
such day to day association and intimacy of acquaintance during such period of four
months {not four minutes) which afforded to the witness, Hume, the reasonable
opportunity to be able to sense and determine, intelligently {assuming that Hume was a
man of ordinary capacity, ability and common sense), and to acquire and express his
opinion as to whether or not the defendant in that case, Lewis, was sane or insane.
such day to day association and intimacy of acquaintance during such period of four months
(not four minutes) which afforded to the witness, Hume, the reasonable opportunity to be able
to sense and determine, intelligently (assuming that Hume was a man of ordinary capacity,
ability and common sense), and to acquire and express his opinion as to whether or not the
defendant in that case, Lewis, was sane or insane. As before pointed out, Chief Justice
Hawley, after most careful reasoning, and because of such facts in the Lewis case (which
were so dissimilar to those in the instant case, above described), concluded that same were
sufficient in duration and extent, reasonably to show that the witness, Hume, was competent.
The following sentence expressed by Judge Hawley in his opinion in the Lewis case, on said
page 346 of 20 Nev., on page 245 of 22 P. may bear repetition, same being as follows: On
the other hand, some of the witnesses who testified on the part of the state had such a brief
acquaintance with and limited knowledge of the appellant as to deprive their testimony of any
special weight or value. (Italics mine.)
State v. Lewis, supra, was decided in 1889. As above indicated, this court, fifty-five years
later, in State of Nevada v. Plunkett, expressly affirmed the reasoning of State v. Lewis,
supra, and, in that connection, in the opinion of Mr. Justice Ducker, in effect, affirmed the
judgment of the lower court, in that said court declined to admit the testimony of the witness
Mazie Chester, a witness for defendant. The sustaining of the objection and declination to
admit such evidence was by reason of the fact (employing the language of the able Mr.
Justice Ducker), that: The witness had met defendant only twice and there is nothing to show
that the meetings were otherwise than casual, without opportunity for such observation as
would have enabled the witness to form any judgment of value as to his mental condition.
[62 Nev. 258, 149 P.2d 110.]
The evidence in the voluminous transcript before this court has presented in great detail
the testimony of many witnesses who testified at the trial before the trial judge, the
Honorable A. J. Maestretti.
witnesses who testified at the trial before the trial judge, the Honorable A. J. Maestretti. Much
of the evidence consisted of the expert testimony of a considerable number of professional
physicians and scientists. It required many weeks, or, in some instances, months, of research
to enable them to ascertain, investigate, analyze and become familiar with the available facts
and circumstances by which they, severally, determined their opinions and conclusions. Some
of the expert witnesses, as, of course, frequently occurs in such cases, finally, upon their
respective hypotheses, reached opposite opinions or conclusions as to the basic question of
whether or not, at the time of the homicide, the defendant, Butner, was sane or insane. Much
evidence has been adduced, which included facts and circumstances which were conceded
and admitted, whilst other of such facts or circumstances were controverted.
There can be no doubt that the defendant, Butner, subsequent to his severe head injury in
his youth, had started to drink intoxicating liquor, and that, as the years passed, such drinking
progressively increased until it became habitual, and that for around two years, more or less,
he had become what practically all the expert witnesses conceded, to wit, that he had become
so addicted to imbibing large quantities of intoxicants that he was what is generally termed a
confirmed or chronic alcoholic.
The best scientific minds have long recognized such a condition, which, in advanced
stages, is considered, medically and scientifically at least, as a serious affliction, resulting in
progressive deterioration, both of body and mind.
Numerous facts and circumstances detailed in the testimony of the several witnesses have
disclosed a number of instances of defendant Butner's behavior, which, as to certain
occurrences and conduct, were eccentric, and, at times erratic, strained, unusual, unstable and
abnormal. It is also undeniable that shortly prior to the tragic death of Butner's former wife,
Mrs. Mildred Butner, the defendant, on that day, December 30, 1947, had drunk, as
appeared from the evidence, "a pint of whiskey, followed by several drinks at the Golden
Gulch Bar and a drink or two at Dougherty's Bar, and that he drank the contents from a
bottle of Cheracol, containing one grain of codeine and two grains of chloroform, within
20 minutes prior to the homicide.
Butner, the defendant, on that day, December 30, 1947, had drunk, as appeared from the
evidence, a pint of whiskey, followed by several drinks at the Golden Gulch Bar and a drink
or two at Dougherty's Bar, and that he drank the contents from a bottle of Cheracol,
containing one grain of codeine and two grains of chloroform, within 20 minutes prior to the
homicide. It is also undisputed that petitioner's blood contained a percentage of .216 alcohol
and his urine contained a percentage of .339 alcohol, and that this quantity of alcohol
definitely placed him under the influence of alcohol according to approved medical
standards. (Quoted from the second paragraph on page 9 of the petition for a second
rehearing and reconsideration.)
A few months before the homicide Butner had, after their remarriage and before the last
divorce, told his wife he intended to make a trip to San Francisco, and, apparently, had, on the
other hand, found himself on a bus about to arrive at Salt Lake City, and from there Butner,
apparently without any good reason other than that he was drunk, had, together with Ted
Green, a brother-in-law, who also had indulged in drinking on that occasion, journeyed to
Texas, and remained there several weeks, during which time he wrote his wife most
endearing letters. Such letters were written and posted at the rate of one, and sometimes two,
per day.
It is not advisable to attempt to state further detailed facts and circumstances in the
evidence which show, or tend to show, that on December 30, 1947, shortly prior to and at the
time of the homicide, the defendant was at least in an abnormal, and perhaps an irrational,
condition of mind.
The jurors, at the trial, heard, or are presumed to have heard, all of the testimony adduced
by the witnesses. The salient point is as to whether or not, during such period of three to eight
minutes, the witness Watkins could possibly have ascertained any facts as to Butner's mental
condition, other than the bare facts which he saw immediately before and for a few minutes
after the killing occurred.
after the killing occurred. The witness could, of course, have stated, and did state, the actual
facts and circumstances which he had seen and heard during such few minutes. That principle
was clearly stated by this court in State v. Harrington, supra, in which, in effect, the court
justified the testimony as to facts and circumstances, but stated that no evidence consisting of
merely his opinion or conclusion could have been properly admitted. (Italics mine.) Such
testimony by way of ultimate conclusion has, from time immemorial, been deemed
inadmissible, same being merely the opinion of such a witness, and, therefore, conjectural.
There was nothing whatever which the witness Watkins knew, or could have known,
relating to the mental condition of the defendant, other than the facts which he saw and heard
during such three to eight minutes. The witness Watkins stated that he (Butner) was not
drunk, and he was not crazy, or words to that effect. Watkins, from the conduct,
conversation and what actually occurred thereafter, which he beheld, certainly knew a most
tragic and tense and extraordinary situation had occurred. Not knowing the persons involved,
Butner nor his former wife, Mildred, Watkins, without having known or been acquainted with
Butner for any appreciable length of time, and not having some substantial opportunity in
which to have observed him, could not, reasonably, have been enabled, intelligently and with
any common-sense standpoint, to have determined whether or not Butner was sane, and,
without any such basic foundation, Watkins should not have been permitted to say (as he said
before Judge Maestretti): The Witness: (A.) Well, at the time of the shooting, I would say
that he was very sane. (Italics mine.)
Such statement could have been no more than a mere guess. Without any scientific
knowledge as an expert, Watkins had no knowledge or information which came to him
hypothetically, and could not, of course, have so testified even if some one had imparted such
facts to him, not being qualified as to such expert, or scientific, field of knowledge.
field of knowledge. The only available means by which, as a layman, Watkins might have
been considered qualified or competent (as has been repeatedly pointed out in this opinion)
would have been by actual observation, acquaintance, association and knowledge, and of
sufficient extent and duration such as reasonably could have enabled him to have acquired,
from the individual characteristics, habits, conduct and actions of the subject, a sound and
reasonable determination as to whether such subject was sane or insane at the time of the
homicide. Nothing less would have sufficed, or come within the principles so fully elucidated
and expounded by the overwhelming weight of the authorities, including the very many state
court cases from all, or nearly all, the states, except New York and Massachusetts, above
mentioned. In those two states the particular question here before us, for the reasons above
stated, was inapplicable.
For the reasons abundantly shown, from more than forty of the forty-six states, the federal
courts and the District of Columbia, including all those in the State of Nevada, I have found it
inevitable, and feel constrained, to conclude that the honorable district judge arrived at his
above-mentioned erroneous conclusion, and did so in the exercise of his discretion, in that he
permitted the witness Watkins to state such conclusion above mentioned, and that same
constituted an abuse of his discretion. Such abuse of his discretion was clearly unsound, and
constituted reversible error. The denial of a new trial by the trial court to the defendant,
Butner, also was, according to my judgment, erroneous and reversible.
The opinion written by the Honorable Frank McNamee, district judge, concurred in by Mr.
Justice Badt and Mr. Justice Eather, and filed May 10, 1949, also, in my best judgment, was
erroneous, and instead of affirming the judgment of the trial court, same should have been
reversed by this court, and the case ordered sent back for a new trial; or, in the alternative,
and upon the offer of defendant, Butner, in the exercise of the discretion of this court and
in view of the serious error of the trial court in admitting the evidence of Jack Watkins,
and which, if same were eliminated, would not have assured the jurors of having found
beyond a reasonable doubt that the killing was deliberate and premeditated, the
judgment and sentence could properly have been modified by this court on an order made
reducing the sentence or penalty to life imprisonment.
offer of defendant, Butner, in the exercise of the discretion of this court and in view of the
serious error of the trial court in admitting the evidence of Jack Watkins, and which, if same
were eliminated, would not have assured the jurors of having found beyond a reasonable
doubt that the killing was deliberate and premeditated, the judgment and sentence could
properly have been modified by this court on an order made reducing the sentence or penalty
to life imprisonment. Subsection 6, sec. 11032, N.C.L.1931-1941 Supp. Such was done, in
somewhat similar circumstances in State v. Holdaway, opinion by Taber, J., in 56 Nev. 278,
48 P.2d 420.
It may be stated, by way of explanation, that there could not have been, nor can this court
find, any reasonable assurance with a reasonable degree of certainty that the jurors were not
influenced by the testimony of Watkins. If that incompetent evidence had been excluded, as it
should have been in accordance with practically all authorities, there is nothing to show that
the jury would not have arrived at the conclusion and found that the defendant, Butner,
should have been acquitted because of his having been determined temporarily insane, or, at
least, that the killing was not willful, deliberate and premeditated, and that a lesser degree of
murder was indicated. If such unjust and erroneous result was thus caused by such
incompetent evidence having been admitted (and the reasoning of the cases establish that it
was), the great and humane principle of presumption of innocence was discarded, and
because of such grave error in permitting such incompetent evidence, the defendant may
reasonably be deemed to have been found guilty of first-degree murder beyond a reasonable
doubt, upon such false basis. The resulting erroneous conviction and sentence to death
naturally followed.
With regret, I am impelled again to refer to the fact that, as to the matter of the petition for
a rehearing filed June 24, 1949, notwithstanding the fact that in such petition of 23 pages
able and clear reasoning was presented and many further authorities added, all three of
the then sitting members of the court, before whom such first petition for rehearing was
submitted, still adhered to the opinion filed May 10, 1949, as aforesaid, and the petition
for a rehearing was, as aforesaid, on August 11, 1949, denied, without any further opinion
having been written.
petition of 23 pages able and clear reasoning was presented and many further authorities
added, all three of the then sitting members of the court, before whom such first petition for
rehearing was submitted, still adhered to the opinion filed May 10, 1949, as aforesaid, and the
petition for a rehearing was, as aforesaid, on August 11, 1949, denied, without any further
opinion having been written.
Petitioner's counsel, doubtless realizing fully that an erroneous and wrongful result had
been confirmed by the denial of the first petition for a rehearing, again on April 6, 1950,
petitioned for a second rehearing and reconsideration. Counsel for petitioner respectfully and
with humility requested such rehearing and reconsideration, upon the ground that palpable
error and grievous wrong exist in connection with the previous rulings of this Honorable
Court in sustaining the action of the Trial Court in permitting the witness Jack Watkins to
express an opinion, over the objection of the petitioner, as to the sanity of the petitioner, such
opinion being based only upon acquaintance, observation and knowledge for an admitted
period of 3 to 8 minutes, and during such period, by the witness' own admission he was under
great strain, stress and nervous excitement, * * *. But, as before stated earlier in this
dissenting opinion, such second petition for rehearing and reconsideration has been denied by
two of the honorable justices of this court, Mr. Justice Badt and Mr. Justice Eather. This has
been brought about, likewise, without any further opinion having been written, thereby
perpetuating, as I see it, the erroneous determination reached in the opinion filed May 10,
1949, whereby the judgment of the trial court was affirmed.
In the circumstances, how can any one, in justice or truth, state that the admission in
evidence of the opinion of Jack Watkins, when he possessed knowledge, acquaintance or
observation of Owen Caudle Butner of only from three to eight minutes duration, did not
cause such incompetent evidence to have misled the jury in finding the defendant, Butner,
guilty of first-degree murder, and in imposing upon him the sentence of death?
such incompetent evidence to have misled the jury in finding the defendant, Butner, guilty of
first-degree murder, and in imposing upon him the sentence of death?
Bearing in mind that the jurors were confronted with the testimony of the expert
witnessesthe doctors and psychiatrists perhaps having been about equally divided in their
opinionsit seems reasonable to believe that it may reasonably be deemed to have been the
positive assertion of Watkins' incompetent evidence which may clearly have turned the tide
and produced the result which followed. Again, I respectfully and humbly inquire: What has
become of the principle of presumption of innocence, or of the doctrine adhered to
consistently under the common law and all Anglo-Saxon jurisprudence, which requires that
before guilt of a crime charged may lawfully be established, the defendant must be found
guilty of the crime charged, according to law, beyond a reasonable doubt as to his guilt, and,
particularly, as to the degree of the crime of which he is convicted? Naturally, the jurors may
have been weary from the effects of the lengthy and detailed evidence of the expert witnesses,
conflicting and controversial as it was, which was before them at the trial; and the mere fact
that the learned district judge overruled the objection and permitted the witness, Watkins, to
testify positively and with great assurance that Butner was very sane, may readily have
prompted the jury to have felt relieved by what appeared to be the simple, clear statement
uttered by Watkins, and to have seen the way of relief from, perhaps, difficulty and
uncertainty. This may have appeared, in the conception of the minds of the jurors,
sufficiently, or at least satisfactorily, true, because they, doubtless, may reasonably have felt
assured that such construction must have been correct and right, for the reason that such
opinion of Watkins had been, after the objection was overruled by the trial court, admitted,
and that such testimony of Watkins, as the jurors believed, had the trial court's sanction and
approval.
In conclusion, it has been, and is my well-considered belief and judgment that a serious
and grave error of law, amounting to an abuse of discretion by the trial judge, occurred in
permitting the testimony of the opinion or conclusion of the witness Jack Watkins; that a
similar error of law has occurred on the part of this court in affirming the judgment of the trial
court, and its denial of a new trial, and, also, in this court's denial of the first petition for a
rehearing; and, also, that a similar error, equally grave, has occurred on the part of the
members of the majority of the justices of this court, in the matter of the petition for a second
rehearing and reconsideration. It is also my considered judgment that, by reason of such
incompetent and erroneous evidence a wrong result has been reached, thereby having caused
a miscarriage of justice and the denial of due process of law.
Such petition for a second rehearing and reconsideration, with all due respect to the views
of my learned associates, should have been granted and ordered by this court.
Reporter's Note: Second petition for a writ of certiorari in the above case was denied by the
Supreme Court of the United States on January 2, 1951. (First petition denied February 6,
1950.) See 66 Nev. 137.
____________
67 Nev. 480, 480 (1950) Beyer v. District Court
JOHN ALFRED BEYER, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Washoe, Department No. 2
Thereof, Respondent.
No. 3611
July 19, 1950. 221 P.2d 1024.
John Alfred Beyer brought an original proceeding in certiorari to command the Second
Judicial District Court, in and for the County of Washoe, Department No. 2 thereof, to certify
to Supreme Court a transcript of the record and proceedings of an unlawful detainer action
instituted by Bert Ravera against petitioner. The Supreme Court, Badt, J., held that where
judgment of district court exceeded the $300 limitation of jurisdiction in the justice court
where action was begun, judgment would be modified so as to annul that portion over $300,
without prejudice of landlord to commence and prosecute an appropriate action in proper
court.
Judgment affirmed as modified.
1. Certiorari.
On a proceeding in certiorari, supreme court's inquiry is limited to question as to whether action of
district court was without jurisdiction or in excess of its jurisdiction. N.C.L. 1929, sec. 9231.
2. Landlord and TenantWar and National Defense.
A complaint which fails to state facts showing compliance with Federal Rent Control Act fails to state a
cause of action in unlawful detainer. N.C.L.1929, sec. 9361; Emergency Price Control Act of 1942, sec. 1
et seq., 50 U.S.C.A.Appendix, sec. 901 et seq.
Once area rent director issues a certificate that landlord may pursue his remedies in accordance with
requirements of local law, landlord is freed from restraint and prohibition laid upon eviction of a tenant and
may proceed to evict tenant on compliance with state law. Emergency Price Control Act of 1942, sec. 1 et
seq., 50 U.S.C.A.Appendix, sec. 901 et seq.
4. Justices of the Peace.
Mere fact that judgment was entered by justice of the peace by default does not affect its validity, for
such judgment admits as true all material allegations properly set forth in complaint and is just as
binding and conclusive as to them as though it had been rendered after answer and
trial.
complaint and is just as binding and conclusive as to them as though it had been rendered after answer and
trial.
A complaint in an unlawful detainer action alleging that tenant went into possession of leased premises
under a verbal lease agreement and continued to hold and occupy premises after term had been terminated,
and that tenant was notified in writing of termination of tenancy by a notice of two and one-half months,
was sufficient to confer jurisdiction on justice court, notwithstanding failure of complaint to allege
compliance with Federal Rent Control Act. Emergency Price Control Act of 1942, sec. 1 et seq., 50
U.S.C.A.Appendix, sec. 901 et seq.
In unlawful detainer action, a complaint alleging that tenant went into possession of leased premises
under a verbal lease agreement and continued to hold over and occupy premises after term had been
terminated by a notice to terminate, sufficiently stated a cause of action, even though notice was not stated
in whole in complaint.
A written demand that tenant deliver possession of premises on or before midnight of a particular date
was a sufficient notification of a day certain for termination of tenancy.
8. Landlord and Tenant.
In unlawful detainer action, where justice court overruled tenant's demurrer and gave him an opportunity
to answer, which he refused to take, and thereafter justice court rendered judgment by default, and tenant
appealed to district court upon a question of law alone, fact that district court allowed tenant to file an
answer in district court did not exceed its jurisdiction.
Where, without proceeding to bring matter before supreme court, respondent in brief contended that
petitioner's appeal from justice court to district court did not comply with statutory requirements for filing
of a statement of the case, supreme court would not consider argument.
Where landlord brought original unlawful detainer action in justice court, and there was an appeal to
district court, judgment for landlord in district court to such an extent as exceeded $300 would be
modified, without prejudice to right of landlord to commence and prosecute an appropriate action in proper
court.
Sidney Fox, of Reno, for Petitioner.
Sidney W. Robinson, of Reno, for Respondent.
OPINION
This is an original proceeding in certiorari.
Upon the verified petition of John Alfred Beyer this court issued an alternative writ
directed to the Second judicial district court of the State of Nevada, in and for the county of
Washoe, Department 2 thereof, commanding it to certify to this court a transcript of the
record and proceedings in the action in said court entitled John Alfred Beyer, appellant, v.
Bert Ravera, respondent, being an appeal from a judgment in the justice court of Reno
Township, Washoe County, Nevada, which judgment ordered restitution to Ravera of certain
premises designated as No. 2101 South Virginia Street in said township, and also for the sum
of $180, plus costs and an attorney fee of $25 in favor of Ravera. The $180 was for rental of
the premises for May, June, July and August, 1949 at the agreed rental of $45 per month.
The transcript certified to this court as the return on the writ of certiorari, indicates that in
the justice court Beyer had demurred to the complaint in unlawful detainer upon the ground,
among others, that the complaint failed to state sufficient facts and that the court was without
jurisdiction, and that upon the overruling of such demurrer Beyer refused to plead further and
permitted judgment to be entered against him by default. Although the district court properly
held that the appeal was pending in that court upon questions of law alone
1
and although in
the district court Beyer again stood upon his demurrer and, upon its being overruled,
again refused to answer over, the district court permitted Ravera to introduce additional
evidence and rendered judgment against Beyer for $495 {which apparently included
additional accruing rentals to date), plus costs and an attorney fee of $50.

____________________

1
The record certified to this court indicates that on August 10, 1949 Beyer served and filed in the justice
court a notice of appeal from the judgment of the above entitled court entered August 3, 1949 overruling said
defendant's demurrer * * * [and] is taken from the whole of said judgment and is taken on the questions of law
raised by said demurrer; and that on August 29, 1949 he filed a further notice of appeal from the whole of that
certain judgment entered in the above entitled case and filed on the 20th day of August, 1949, reciting that such
appeal is taken on questions of law and of fact. On motion of Ravera, showing that no issue of fact had been
tried in the justice court, the district court dismissed the appeal on question of fact.
and although in the district court Beyer again stood upon his demurrer and, upon its being
overruled, again refused to answer over, the district court permitted Ravera to introduce
additional evidence and rendered judgment against Beyer for $495 (which apparently
included additional accruing rentals to date), plus costs and an attorney fee of $50.
1. On this proceeding in certiorari our inquiry is limited to the question as to whether the
action of the district court was without jurisdiction or in excess of its jurisdiction. Section
9231, N.C.L.1929. Degiovanni v. Public Service Commission, 45 Nev. 74, 197 P. 582, and
cases therein cited.
At the oral argument on this application for certiorari counsel for respondent made a
preliminary statement conceding that the judgment was in excess of the $300 limitation upon
the jurisdiction of the justice court. After further questioning, counsel further conceded that as
the appeal was taken on questions of law alone, the district court was likewise precluded from
taking further evidence to increase the amount of the $180 justice court judgment, plus costs
and attorney fees, and that he could not conscientiously oppose the remand of the case to the
district court, annulling the judgment as rendered and directing the entry of a judgment for
restitution of the premises, and for the sum of only $180, plus costs and plus the $50 attorney
fee, which attorney fee is specifically authorized by sec. 9361, N.C.L. Respondent having
thus conceded that the district court judgment was, as to the particulars mentioned, in excess
of its jurisdiction, which concession is patently proper, Martin v. District Court, 13 Nev. 85,
further discussion of this point is unnecessary.
Petitioner however insists that the justice court had no jurisdiction of the action and that
the district court consequently had no jurisdiction of the appealits jurisdiction being purely
derivative. State v. Breen, 41 Nev. 516, 173 P. 555; that this lack of jurisdiction of the justice
court results from the failure of the complaint to state sufficient facts to constitute a cause
of action in unlawful detainer in that {1) it did not set out in haec verba the notice to quit
and {2) because it did not recite compliance with the requirements of the federal housing
expediter or the controlled housing rent regulations promulgated by him, S Federal
Register 7323 et seq., pursuant to the Emergency Price Control Act of 1942, 56 Stat.
to state sufficient facts to constitute a cause of action in unlawful detainer in that (1) it did not
set out in haec verba the notice to quit and (2) because it did not recite compliance with the
requirements of the federal housing expediter or the controlled housing rent regulations
promulgated by him, 8 Federal Register 7323 et seq., pursuant to the Emergency Price
Control Act of 1942, 56 Stat. 23, 50 U.S.C.A.Appendix, sec. 901 et seq.
2, 3. Petitioner cites the following authorities as definitely establishing the rule that a
complaint filed under unlawful detainer statutes, which fails to state facts showing
compliance with the Federal Rent Control Act, fails to state a cause of action in unlawful
detainer; Bauer v. Neuzil, 66 Cal.App.2d Supp. 1020, 152 P.2d 47; Lester v. Isaac, 63
Cal.App.2d Supp. 851, 146 P.2d 524; Wrenn v. Sutton, 65 Cal.App.2d Supp. 823, 150 P.2d
589; Staudigal v. Harper, 76 Cal.App.2d 439, 173 P.2d 343; Bumgarner v. Orton, 63
Cal.App.2d Supp. 841, 146 P.2d 67. These cases do so hold, and other authorities are to the
same effect. We may note in passing that these cases all have reference to attempted
terminations of tenancies of rent paying tenants and do not prevent the removal of a tenant for
his failure to pay the rent. Sec. 6(a) of the Rent Regulations for Housing, 8 Fed.Register 7326,
entitled Restrictions on Removal of Tenant, has the introductory provision: So long as the
tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed
from any housing accommodations, by action to evict or to recover possession * * *, unless:
There are then recited six numbered paragraphs under sec. 6(a) reciting conditions under
which the restriction does not apply. Under sec. 6(b): (1) No tenant shall be removed or
evicted on grounds other than those stated above unless, on petition of the landlord, the
Administrator certifies that the landlord may pursue his remedies in accordance with the
requirements of the local law. The Administrator shall so certify if the landlord establishes
that removals or evictions of the character proposed are not inconsistent with the purposes of
the Act or this regulation and would not be likely to result in the circumvention or evasion
thereof."
the purposes of the Act or this regulation and would not be likely to result in the
circumvention or evasion thereof. 8 Fed.Register 7327. Under sec. 6(d) notice to a tenant to
vacate on the ground of nonpayment of rent is not required where the administrator has issued
the certificate under the provisions of paragraph (b). We find in the transcript a Disclaimer
filed by the area rent director of the office of housing expediter, Reno office of rent control,
which appears to correspond in all respects with the certificate above described,
2
and which
was filed in the respondent district court in this case October 6, 1949. There is no indication
that it was introduced in evidence in the trial of the case, and the right of the court to consider
it does not seem to be attacked other than under the general charge of the court's lack of
jurisdiction.
3
As stated above, we note these things simply in passing. The regulations from
which we have quoted are but a few of the rent control regulations appearing in the volume of
the Federal Register comprising some 9,000 pages, obtained of necessity from outside the
state as no such volume was available in any library or in the possession of any federal
official in the State of Nevada. The act itself and the arrangement of the paragraphs and
subparagraphs of the regulations, with their exceptions, limitations, conditions and
cross-references, are typical of the governmental literary style of the time. Happily, our
determination of the question presented by this petition does not compel us to thread this
labyrinth in search of an exit.
____________________

2
This certificate was conclusive upon the parties in unlawful detainer. Once issued, it removes the
prohibition laid on the eviction of a tenant by the regulations, and the landlord, freed from the restraint, may
proceed to evict the tenant, on compliance with state law. Yoncich v. Quinn, 69 Cal.App.2d Supp. 810, 159 P.2d
708.

3
In Bumgarner v. Orton, 63 Cal.App.2d Supp. 841, 146 P.2d 67, 69, the complaint failed to allege when
plaintiff acquired the property or that she had a certificate from the administrator for the eviction of the
defendants. Although, under the California authorities, these allegations were necessary in order to state a cause
of action, the court said: This defect in the complaint would not be fatal to the judgment, were it otherwise
correct, because plaintiff testified without objection that she owned the property prior to November 1, 1942, and
the court made an express finding to that effect. It thus
does not compel us to thread this labyrinth in search of an exit.
4. The mere fact that the judgment was entered by the justice of the peace by default does
not of course affect its validity, for such judgment admits as true all the material allegations
properly set forth in the complaint and is just as binding and conclusive as to them as though
it had been rendered after answer and trial. This is elementary.
The primary purpose of the complaint in the justice court was to obtain restitution of the
premises and for the accrued rental with costs and attorney fees. The complaint was drawn
with much greater formality and care than are ordinarily employed in justice court pleadings.
It alleged a verbal lease agreement entered into May 15, 1940, whereby Ravera leased the
premises to Beyer for an indefinite period of time with a monthly rental reserved in the sum
of $45 per month, payable on the first day of the month in advance; that the defendant went
into possession thereunder and continues to hold and occupy the premises; that the term has
terminated but the defendant continues to hold over; that he was notified in writing on March
16, 1949 of termination of the tenancy May 31, 1949a notice of two and one-half months;
that the value of the rent is $45 a month and that the rent for May, 1949, due and payable on
or before May 1, 1949, was at the time of the filing of the complaint on June 16, 1949,
unpaid.
5. Let us concede, for the sake of argument, that petitioner is correct in asserting that the
complaint fails to state a cause of action by reason of its failure to allege compliance with the
federal requirements, and that the overruling of the demurrer by the justice of the peace
and also the overruling of the demurrer by the district court were error.
_____________________
appears that the issue was litigated and determined by the court without objection, as though the complaint
sufficiently stated a cause of action. We do not overlook the fact that in the present case petitioner insisted
throughout that the complaint did not state a cause of action, but we cite the foregoing to illustrate the
distinction, hereinafter discussed, between a failure to state the performance of a condition precedent essential to
a cause of action, and a failure to state sufficient facts to show that the court has jurisdiction.
that the overruling of the demurrer by the justice of the peace and also the overruling of the
demurrer by the district court were error. It still does not follow that those courts were
without jurisdiction or that either was without jurisdiction. Jurisdiction in such cases is
conferred by statute upon justices' courts. The justice court had jurisdiction of the parties and
the subject matter. The allegations of the complaint as outlined above thus challenged the
attention of the court and presented such a case as to authorize the court to deliberate and
acta sufficient situation for the purpose of conferring jurisdiction. Redlands High School
District v. Superior Court, 20 Cal.2d 348, 125 P.2d 490, 496; 21 C.J.S., Courts, sec. 33, note
87, p. 42; 14 Am.Jur. 364, Courts, secs. 161 and 162, nn. 5 and 6.
In the Redlands case judgment had been rendered against a school district in a justice court
for damages for personal injuries, and this judgment was affirmed by the superior court on
appeal. As in unlawful detainer cases, the right of action was statutory (Farnow v. Department
1 of Eighth Judicial District Court, 64 Nev. 109, 178 P.2d 371), and the liability of the school
district (that is, the waiver of sovereign immunity) was made dependent upon the filing of
a claim within ninety days. The Supreme Court of California, in a unanimous opinion written
by the eminent Chief Justice Gibson (Mr. Justice Carter disagreeing as to another point in the
case), said: That requirement, however, is one which goes to the elements of the plaintiff's
right to recover rather than to the power of the court. Judgment in favor of the plaintiff in the
absence of such a claim is a grievous error of law and a violation of statute. But not every
violation of a statute constitutes excess of jurisdiction on the part of a court. The doctrine
relied upon by petitioners applies only where the clear purpose of the statute is to restrict or
limit the power of the court to act and where the effective enforcement of such restrictions
requires the use of the extraordinary writs of certiorari or prohibition. Where, as here, the
statute does not restrict the power of the court but merely sets up a condition precedent
to the establishment of the plaintiff's cause of action, we think the violation of the
statutory provision constitutes an error of law rather than excess of jurisdiction."
here, the statute does not restrict the power of the court but merely sets up a condition
precedent to the establishment of the plaintiff's cause of action, we think the violation of the
statutory provision constitutes an error of law rather than excess of jurisdiction.
The petitioner here does not contend any further than that compliance with the federal
regulations was a condition precedent to the right of action and that the failure to allege
compliance resulted in failure to state a cause of action. His error is in assuming that a failure
to state a cause of action, under such circumstances, necessarily deprives the court of
jurisdiction to act. We thus find it unnecessary to discuss the many cases cited having to do
with sufficiency of allegations to state a cause of action but not necessarily touching the
question of jurisdiction.
Petitioner contends that certiorari will lie in the premises under the authority of Martin v.
District Court, 13 Nev. 91; Paul v. Armstrong, 1 Nev. 82, 96; State v. Pacific Wall Paper &
Paint Co., 41 Nev. 501, 172 P. 380; and other cases cited. Other than possibly applying to that
part of the district court's judgment, which part we have above concluded must be annulled,
we do not find these cases in point.
Petitioner also contends that under the ruling of this court in Roberts v. Second Judicial
District Court, 43 Nev. 332, 185 P. 1067, 1070, the complaint as filed in the justice court
failed to state a cause of action. The notice to quit in that case was held to be fatally defective
because it was not positive and unconditional and because the tenant may have reasonably
believed therefrom that the landlord objected only to the manner of the occupancy as a
billiard and pool parlor. A writ of mandamus was there issued to compel the district court to
assume jurisdiction of an appeal from the judgment of the justice court because the district
court had erroneously attempted to divest itself of jurisdiction. As to its applicability to the
present case, it is clearly distinguished by the fact that there the notice to quit was not
positive and unconditional.
distinguished by the fact that there the notice to quit was not positive and unconditional. Here
it was.
6. But petitioner further insists that under the wording of the opinion in the Roberts case
the notice to quit must be stated in full in the complaint, drawing this conclusion from the
following language used by the court: The notice to quit, being a part of the statutory
definition of the offense, necessarily enters into the gist of the action, and must be made to
appear by express averment in the complaint. The rule thus quoted is undoubtedly correct,
but that it requires the notice to be stated in full does not follow. Petitioner cites no cases so
holding, nor does either of the two California cases, cited by the court in the Roberts case as
authority for the rule, hold that the notice to quit must be stated in full in the complaint.
Annulment of the judgment is also sought on the ground that said complaint fails to state
a cause of action in unlawful detainer [in] that it appears from the complaint that the notice
allegedly served upon petitioner does not state a date certain for termination of tenancy; that it
appears from said notice [emphasis supplied] that the same was not served pursuant to said
unlawful detainer act of the State of Nevada. Though perhaps not essential to our decision in
this case, we desire to point out the following. The petition for certiorari herein alleges under
oath:
That on the 16th day of March, 1949, said Bert Ravera, served upon Petitioner a notice,
as follows, to-wit:
To: John Alfred Beyer, Tenant in Possession of those certain premises known as 2101
South Virginia Street, Reno, Nevada.
You are hereby notified that your tenancy upon the above described premises is and the
same is hereby declared to be terminated as of midnight, the 31st day of May, 1949. Demand
is hereby made upon you for the delivery of the possession of said premises to the
undersigned owner thereof on or before midnight, the 31st day of May, 1949.
undersigned owner thereof on or before midnight, the 31st day of May, 1949.
You are hereby notified in this connection that the undersigned owner of said premises
desires occupancy of the same for the immediate use of himself and his family.
You are further advised that this notice is being given to you in accordance with the terms
and provisions of the House and Rent Act of 1948, being Chapter 161 in Public Law 464 [50
U.S.C.A.Appendix, 1881 et seq.].
For your failure to comply with the terms and provisions of this notice, an action in
unlawful detainer will be forthwith instituted as against you to recover the possession of said
premises plus any damages which the undersigned may sustain by reason of your unlawful
detention of the same, including court costs and attorneys' fees.
Dated: March 16, 1949.
Bert Ravera
The allegation in the complaint with reference to such notice is as follows:
That plaintiff, more than fifteen (15) days prior to the end of said monthly term, to-wit,
on the 16th day of March, 1949, notified defendant in writing that plaintiff was terminating
the aforesaid tenancy upon the aforedescribed premises on the 31st day of May, 1949, and
made demand in writing of the said defendant to deliver up and surrender to plaintiff the
possession of said premises on or before the 31st day of May, 1949.
The complaint further alleged the lapse of more than fifteen days since the making of the
demand (as a matter of fact about two and a half months elapsed as shown from other
allegations of the complaint), the neglect and refusal of the plaintiff to quit possession, the
termination of the term and the continuous holding over and continuous possession of the
premises by the defendant without the permission of plaintiff and contrary to the terms of the
agreement.
7. Petitioner's contention that the notice does not state a day certain for termination of the
tenancy is without merit. See the first paragraph of the notice quoted above. The last ground
quoted is too general to be of much assistance, as it is not explained in what respect it appears
from the notice itself that the same was not served pursuant to the unlawful detainer act. It is
dated March 16, 1949, terminates the tenancy May 31, 1949, the tenancy was concededly a
tenancy from month to month, and the notice is alleged by the petitioner himself to have been
served upon him by the landlord on March 16, 1949. In the foregoing discussion of the
sufficiency of the complaint to state a cause of action we do not recede from the position first
taken, namely, that the failure to state a cause of action would not necessarily result in a
conclusion that the court was without jurisdiction.
8. Petitioner further insists that the district court exceeded its jurisdiction in entering a
judgment on the appeal allowing appellant to answer, and upon failure to answer, in entering
judgment for restitution * * * that if the court did not have the authority to allow appellant to
answer, it did not have the power to enter judgment for appellant's failure to answer, and that
the proper procedure was for the district court to remand the case to the justice court,
sustaining the justice court decision as to the demurrer, with direction to allow appellant to
answer if he saw fit. We are not sure that we correctly follow petitioner's thought. The
record shows that the justice court overruled the defendant's demurrer and gave him an
opportunity to answer, which he refused to take. Thereafter the justice court rendered
judgment by default, and the defendant appealed to the district court. Here again, he presented
his demurrer, which was again overruled. Despite the fact that the appeal was upon a question
of law alone and that there was no issue of fact to be tried, it is difficult to see how the
defendant was in any way injured or aggrieved by having been given an opportunity to
answer.
answer. The contention that the district court should, after having overruled the demurrer,
have remanded the case to the justice court where he might again be given the opportunity,
which he had theretofore rejected, to answer the complaint, is unsupported either by reason or
authority. Petitioner cites no case in support of his contention.
9. Respondent, in its brief, contends that in his appeal from the justice court to the district
court the petitioner did not comply with the statutory requirement for the filing of a statement
of the case and that we should accordingly remand this case to the district court with
instructions to dismiss the appeal for want of the district court's jurisdiction of the appeal. We
cannot consider an application of this kind, addressed to the court simply by way of argument
in respondent's brief and without any proceeding to bring the matter before us.
Petitioner contends that the only authority of the district court, upon overruling the
demurrer to the complaint, was to set aside, confirm or modify the judgment of the justice
court. As respondent does not take issue upon this point, we deliberately refrain from passing
upon the precise powers of the district court upon an appeal heard upon a statement of the
case (which means an appeal on questions of law alone) under the provisions of sec. 9341,
N.C.L., and take petitioner at his word.
10. The judgment of the district court to such extent as it exceeded the $300 limitation of
jurisdiction in the justice court and to such extent as it resulted from a new trial in the district
court (the appeal being on questions of law alone) must be annulled. Its judgment for
restitution of the premises, for judgment against petitioner, hereby modified from the sum of
$495 to the sum of $180, costs and $50 attorney fees is affirmed, without prejudice to the
right of the landlord or his assigns to commence and prosecute an appropriate action for
unpaid rentals accruing subsequently to the month of August, 1949.
unpaid rentals accruing subsequently to the month of August, 1949.
Petitioner is allowed his costs on this proceeding, to be certified, when determined, by the
clerk of this court to the clerk of the respondent court, to be by said respondent court assessed
against Ravera, the real party in interest.
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67 Nev. 493, 493 (1950) Harrah v. Specialty Shops, Inc.
JOHN HARRAH, Appellant, v. SPECIALTY
SHOPS, INC., RESPONDENT.
No. 3613
August 4, 1950. 221 P.2d 398.
Specialty Shops, Inc., brought action against John Harrah to recover for articles of
merchandise furnished defendant's wives. The Second Judicial District Court of Washoe
County, A. J. Maestretti, Judge, Dept. No. 2, rendered a judgment for the plaintiff, and the
defendant appealed. The Supreme Court, Badt, J., held that judgment could not be supported
either under theory of agency or under theory of defendant's promise, which was void under
the statute of frauds, to pay for the merchandise.
Judgment reversed.
For husband to be liable, under theory of ratification, for articles of merchandise, which were not
necessaries, and which were furnished to his wives, acts to which alleged ratification was sought to be
applied, must have been acts done or performed by the wives professedly acting as husband's agents and
for his account or benefit.
2. Principal and Agent.
For ratification to become operative in law of agency, it is essential that acts sought to be ratified be done
by one purporting to act as agent, and such ratification does not take place when action in question is done
by one in his individual capacity.
Where operator of dress shop furnished and charged to wives articles of merchandise, which were not
necessaries, because of knowledge that husband was financially able to pay, but accounts were in names of
wives, rather than in name of husband, husband was not liable for merchandise on theory that he ratified
acts of wives as his agents, though husband made a payment on what he spoke of as his account, and
though he stated that he would pay bill of his first wife if she could not be made to do so, and though he
stated that there was no dispute with reference to bill of second wife, and that he would take care of it.
4. Frauds, Statute of.
Where husband was not responsible for bills incurred when wives charged articles of merchandise, which
were not necessaries, subsequent promise by husband to pay the bills of the wives, was void under the
statute of frauds. N.C.L.1929, sec. 1533.
Harlan L. Heward, of Reno, for Appellant.
L. D. Summerfield, of Reno, for Respondent.
OPINION
Specialty Shops, Inc., respondent, operating a dress shop at Reno, Nevada, under the name
of Magnin's, recovered a judgment against John Harrah, appellant, on two causes of action,
the first for $1,877.10 for merchandise furnished his wife, Gloria, from May to September,
1948, and the second for $516.10 for merchandise furnished a subsequent wife, Betty, in
December, 1948 and January, 1949. The amended complaint alleged that plaintiff furnished
the merchandise, under the first cause of action, to Gloria C. Harrah, at her request, as
defendant's agent, and, under the second cause of action to Betty Harrah, at her request, as
defendant's agent. The findings made by the court (the case was tried without a jury) were in
the same language.
Appellant and Gloria were married May 23, 1948.
On the next day Gloria started making the purchases involved in the first cause of action. On
May 24 she bought from respondent two hats for $117.50. On the 26th she bought gloves,
hose and a dress aggregating over $100. On the 27th she bought seven pairs of shoes for
$119.70. In June she purchased hats, shoes, dresses, bags, one suit for $195, one for $175,
lingerie for $307.90, and so on through July and August and until the 4th of September, 1948,
aggregating $3,451.19. After credits, the balance was $1,877.10. Not all of these items were
purchased by Gloria. Items aggregating $571.25 were purchased by Gloria's sister, Genevieve
Cross, and Mrs. Margaret James, Gloria's mother. They included such items as a beaver skin
for $110, a coat for $198.50, and a suit for $110.
Appellant and Gloria were divorced November 29, 1948, and appellant and Betty were
married in December 1948. Between December 14, 1948 and January 7, 1949, Betty
purchased items aggregating $516.10.
It was not claimed by respondent that any of the purchases were necessaries. When
appellant sought during the trial to introduce evidence to the effect that the purchases were
not necessaries, respondent's counsel, in objecting said: There is no theory in this case
contracting on necessaries. It either stands or falls on agency. The court sustained the
objection. Nor does respondent claim that appellant at any time either in writing or orally
authorized either his wife Gloria or his wife Betty to make any of the purchases or to pledge
his credit. Nor is the theory of undisclosed principal involved. Accordingly, the only theory
under which the judgment may be sustained is (1) that appellant ratified the actions of Gloria
and Betty, respectively, in making purchases in his name, as his agents, or (2) by a legal and
valid promise on his part to pay the obligation.
1, 2. (1) For appellant to be liable for the obligations under the theory of ratification, the
acts to which such ratification is sought to be applied must have been acts done or performed
by Gloria or by Betty professedly acting as such agent and for appellant's account or
benefit.
acting as such agent and for appellant's account or benefit. It is unnecessary for us to enter
into a discussion of the distinction between ratification and adoption (the terms have been
variously used interchangeably by many courts), or the relation of the term to confirmation,
affirmation, etc. It is as clear as it is elementary that for ratification to become operative in the
law of agency, it is essential that the act sought to be ratified be done by one purporting to act
as agent, and that ratification does not take place when the action in question is done by the
person in his individual capacity. 2 C.J.S., Agency, sec. 41, a and b, p. 1078, and cases cited
in notes. Applying this rule to the undisputed evidence in the case, we find that every single
item of purchase made by Gloria was made by her in her own name and for her own benefit.
This is likewise true of the purchases made by Betty. Plaintiff introduced in evidence the
triplicate copies of some forty-three charge slips or tags. The ones indicating Gloria's
purchases were all charges to the account of Mrs. John Harrah. The same applies to the tags
evidencing the purchases made by Betty. Plaintiff also introduced in evidence a summary of
Gloria's account, attested by the president and under the seal of the corporation, which is
preceded by the following certification: The following is a true and exact listing of the items
appearing on the account of Mrs. John Harrah (Gloria Harrah). It also introduced in evidence
a similar summary, likewise under the hand of the president and the corporate seal of the
plaintiff, of Betty's account, preceded by the certificate: The following is a true and exact
listing of the items appearing on the account of Mrs. John Harrah (Betty Harrah).
After adopting the plaintiff's proposed findings of fact to the effect that the merchandise
was furnished to Gloria (and under the second cause of action to Betty) at her request, as
defendant's agent, the court added the following two findings at the request of the defendant:
XII. That the Gloria Harrah account was opened and carried on the books and records
of the plaintiff in the manner and form as shown by Plaintiff's Exhibit No.
and carried on the books and records of the plaintiff in the manner and form as shown by
Plaintiff's Exhibit No. 9 [the credit card hereinafter referred to]; all purchases made by Gloria
Harrah were carried on the books and records of the plaintiff in the manner and form as
shown by Plaintiff's Exhibit No. 10 [the sales slips to Gloria].
XIII. All purchases made by Betty Harrah were carried on the books and records of the
plaintiff in the manner and form as shown by Plaintiff's Exhibit No. 12 [the sales slips to
Betty].
At the time Gloria went to Magnin's to make her first purchase a credit card was, in
respondent's own words, set up, which credit card plaintiff introduced in evidence. It is as
follows:
Mr. Name
Mrs. John Harrah
Miss
Address 252 1st West Reno
Position Owner5 years
Firm Harrahs Club
Firm Address Reno, Nevada
Wife Glorie
How Long Few Days (New)
Wife's Position House Wife
(Sgn'd) Gloria C. Harrah.
Respondent contends that this credit card is probably the most important factor in
determining the issue as to whether the credit was granted to Gloria individually, or to
appellant. That it is an important factor is evident. Respondent calls attention to the financial
standing of the respondent; that he was the member of the marriage partnership who had the
wealth and the position; that credit to the extent involved in the account in question certainly
would not have been granted to Gloria personally; and that it is obvious that the credit was
granted to John Harrah of Harrahs Club, and not to his wife of a few days; that the striking
out of "Mr." and "Miss" was simply "for the purpose of having the bills sent to Gloria" and
"does not mean a thing as affecting the party to whom the credit was extended."
of Mr. and Miss was simply for the purpose of having the bills sent to Gloria and does
not mean a thing as affecting the party to whom the credit was extended. The credit card
speaks for itself. Gloria had the items charged to herself as Mrs. John Harrah and the plaintiff
so made the charges, so issued all of the charge slips and so carried the account on its books.
Appellant had quoted from 37 C.J.S., Frauds, Statute of, sec. 285c (2), p. 821, as follows:
In determining to whom, as between the promisor and the person for whose benefit the
promise is made, the credit was actually given, an important consideration is the manner in
which the creditor entered the transaction on his books. Evidence that the goods sold were
charged to the person to whom they were delivered strongly tends to show that the seller gave
credit to him and relied on him for payment, and therefore that the promise of another to be
answerable for the debt was at most a collateral undertaking.
Respondent insists that the immediately following sentence in the text more properly
applies. It is as follows: Such evidence, however, is not conclusive, and it is open to
explanation; its weight is for the jury. Thus it may be explained by showing that the goods
were so charged at the request of the promisor as to enable him to identify such third person's
items and distinguish them from his own, or by showing a local custom and usage of
merchants to charge goods to the person to whom they are delivered even when they are sold
on the sole credit of another.
Although there is no claim or indication in this case that appellant was the person for
whose benefit the promise was made, we see no reason to question the text as containing
accurate statements of law. There is however nothing in this case to indicate that the charges
were made to Mrs. John Harrah simply for the purpose of identifying the goods, or to
distinguish the items from items sold to John Harrah, or for having the bills mailed to Mrs.
John Harrah, or for any other reason than to indicate the creditor-debtor relation between
the store and Mrs.
indicate the creditor-debtor relation between the store and Mrs. Harrah. There is no
contradiction of the fact that Mrs. Harrah opened the account in her own name and that every
item involved in the first cause of action was charged to her and not to her husband. That
respondent, in extending credit to Mrs. Harrah, felt that the credit was good on account of her
husband's standing and financial ability is probably true. It might have felt just as much
justified if she had recited on the credit card that her father was a banker, her brother a
wealthy cattleman or her son the president of a railroad.
In the second cause of action, involving the Betty Harrah account, it is even more apparent
that the credit was extended to her. She had before her marriage to Harrah carried an account
with respondent under her name of Betty Maseda. After the marriage the account was carried
in the name of Mrs. John Harrah. If any credit card was set up in connection with this
account, it was apparently done at the time the Betty Maseda account was opened.
Respondent refers to our opinion in the recent case of Harrah v. Home Furniture, Inc., 67
Nev. 114, 214 P.2d 1016, 1019, in which respondent says we approved two instructions
which properly applied the law to facts such as are here presented. The instructions we
there approved were as follows:
You are instructed that a wife is not the agent of her husband by force of the marriage
relationship existing between them; the husband, however, may make his wife his agent and
be bound by her acts as such agent. The agency relationship between husband and wife in
such case rests upon the same considerations of any other agency; she is his agent and he is
bound by her acts as his agent, only when her agency is express or implied.
You are instructed that a husband cannot escape liability from the ostensible agency of
his wife arising from past dealings, acts and omissions, by mere notice to his wife or notice
not brought home to the tradesman.
The tradesman has a right to presume that the authority of the wife, having been once held out
to the tradesman by the husband, continues until the tradesman has reason to know to the
contrary. Therefore, if you find that John Harrah by his acts and conduct held Gloria C.
Harrah out to the Home Furniture Company as his agent with the power to pledge his credit
for purchase in plaintiff's store, then you must find that the authority of Gloria C. Harrah as
such agent continued until the plaintiff was actually notified to the contrary.
In the Home Furniture case however, the wife (being the same Gloria Harrah) had charged
the merchandise to John Harrah, and Home Furniture, Inc., so carried the account on its
books. Harrah had paid prior itemized bills for articles purchased in his name by Mrs. Harrah.
The case is entirely different from the present one.
Respondent relies upon Martz v. Selig Dry Goods Co., 76 Ind.App. 135, 131 N.E. 528,
and Annis v. Manthey, 234 Mich. 347, 208 N.W. 453, as leading cases holding that where
the husband makes a payment on a charge account established by the wife, it is a ratification
of such a charge account. But in both of these cases the question of agency arose by reason
of the fact that the wife purchased the wearing apparel from the tradesmen and charged the
same to the account of her husband, such fact being emphasized and repeated throughout the
opinions in both of these cases. The Martz case is very similar to our own holding in Harrah
v. Home Furniture, Inc., 67 Nev. 114, 214 P.2d 1016. The Annis case turned largely upon the
question as to whether a certain fur coat purchased by the wife and charged to the husband in
the month of August was a necessaryan article of ordinary household or family use. [234
Mich. 347, 208 N.W. 454.] The court there, in outlining the necessary elements in the proof
of the plaintiff's case, said that the first of these elements was that he sold the coat on
defendant's credit, and that such element was not disputed. The judgment for plaintiff was
reversed because of the court's failure to instruct the jury that the burden was on plaintiff to
prove that defendant had been guilty of neglect of duty in refusing to supply his wife with
suitable wearing apparel.
was on plaintiff to prove that defendant had been guilty of neglect of duty in refusing to
supply his wife with suitable wearing apparel. Respondent also cites Miskiewicz v.
Smolenski, 249 Mich. 63, 227 N.W. 789, 792, as a leading case holding that a subsequent
promise by a husband to pay an account is a ratification of the wife's agency. We do not find
the case to be in point. A wife's parents had, through the wife, deposited $5,000 to the
account of the defendant husband and the sole question involved was whether this deposit
was a loan to the husband or a contribution to a joint venture for the purchase of Florida real
estate. It became necessary for the Supreme Court of Michigan to consider various
instructions to the jury and various rulings on the admission of evidence involving questions
of agency, ratification, etc. The agency in question was that of the wife in obtaining the
deposit to the credit of the husband, and the obligation in question was the husband's asserted
obligation to repay the money. Under these circumstances it was said that positive testimony
that defendant recognized the transaction as a loan which he repeatedly promised to repay
would amount to a ratification of the agency. But, as in Martz v. Selig and Annis v. Manthey,
supra, the credit pledged would have been that of the husband. The ratification would have
been of the wife's agency in pledging the husband's credit. This was made clear through the
introduction in evidence of a telegram from the husband to the wife requesting her to have her
parents deposit the $5,000 to his account, so that he could check it out on their buy. We
find it necessary again to point out that in the instant case the wife pledged her own credit in
purchasing articles for herself.
Respondent also relies on Stegeman v. Vandeventer, 57 Cal.App.2d 753, 135 P.2d 186,
190, which, on the strength of Schader v. White, 173 Cal. 441, 160 P. 557, said that an
agency of a husband or wife for the other may be established by proof of ratification of acts
already performed without previous authority. In the latter case, however, we find that the
wife had executed a full power of attorney to the husband, the husband then purported to
deal in his own name with property owned by both, and the wife subsequently ratified by
joining in the execution of the deed contemplated by the questioned contract, and
participated in the benefits.
latter case, however, we find that the wife had executed a full power of attorney to the
husband, the husband then purported to deal in his own name with property owned by both,
and the wife subsequently ratified by joining in the execution of the deed contemplated by the
questioned contract, and participated in the benefits. The transaction, according to the court,
also entitled her to sue or be sued as an undisclosed principal. The statement quoted above
must be received in connection with such facts.
3. Respondent contends that four specific items of testimony were most important in
establishing that Gloria Harrah acted as the agent of John Harrah in making said purchases
and charging the same to his account. As we have seen, Gloria did not charge the purchases
to Harrah's account but to her own account. The items of testimony referred to by respondent
are (1) that Harrah made a payment of $885.54 on the account, and (2) an employee of
respondent testified that he said at the time, I want to pay my bill. Another employee
testified that on that occasion Harrah wanted to pay on his account; (3) that the store
manager testified that Harrah told him he wanted Magnin's to sue Gloria herself for the bill
and that they should sue and attach her automobile and that if they were not able to get
anything out of her, he would pay the bill; and (4) said that there was no dispute with
reference to Betty's bill and that he (Harrah) would take care of it. This testimony is denied by
Harrah. Both parties have discussed the conflicting evidence at some length, and respondent
advances the recognized rule that in view of the conflict the trial court's finding will not be
disturbed. Accepting the trial court's adoption of these items of evidence and its rejection of
Harrah's testimony, such evidence does not have the effect attributed to it by respondent.
Respondent says that Harrah's statement as to Gloria's bill was a recognition of liability on
his part and a promise to meet the same, and that his statement as to Betty's account was an
express ratification of her having charged the merchandise to his account."
express ratification of her having charged the merchandise to his account. But she did not
charge the merchandise to his account. She charged each item of it to her own account.
4. (2) We thus see that it is contended that as to both accounts appellant subsequently
promised to pay the same. Section 1533, N.C.L. provides that: In the following cases every
agreement shall be void, unless such agreement, or some note or memorandum thereof,
expressing the consideration, be in writing, and subscribed by the party charged therewith: * *
* second, every special promise to answer for the debt, default, or miscarriage of another * *
* It is clear that the subsequent promise to pay the bill of Gloria or the bill of Betty, if made,
was void under the statute. In Harrah v. Home Furniture, Inc., 67 Nev. 114, 214 P.2d 1016,
1018, in which case, as noted above, Gloria had made purchases and charged the same to her
husband's account, we rejected the defense of the statute of frauds, but said: Appellant has
submitted a list of authorities in which the statute of frauds was successfully invoked, but we
find that in these cases the original credit was given to the wife and the husband was sued on
his promise to pay her debt. This has no application here. These authorities (which we need
not cite as the rule is so well recognized) do have direct application to the present case, in
which the credit was given to the wife Gloria under the first cause of action and to the wife
Betty under the second cause of action.
Both parties devote much attention to the items sold by respondent to the mother of Gloria
and to the sister of Gloria, and appellant insists that in no event could he be liable for the
payment of these items. It is unnecessary for us to discuss this phase of the case. As the items
were likewise charged to Gloria's account they must fall with all other items so charged.
We have considered other points and further authorities cited by both parties, but in view
of what we have said above it becomes unnecessary to discuss them or to enter into any
detailed consideration of the weight to be given to the testimony of the witnesses.
enter into any detailed consideration of the weight to be given to the testimony of the
witnesses.
In re Torres' Estate (Hernandez v. Torres), 61 Nev. 156, 120 P.2d 816, 139 A.L.R. 481,
this court was compelled to distribute a share of the separate property of a deceased wife to a
husband who had abandoned her and her minor children, gone to Mexico and lived for twenty
years in open adultery with another woman. Referring later to this decision, and noting the
necessity for legislation to remedy such a condition, Mr. Justice Taber stated to an annual
meeting of the Nevada State Bar: You can readily see how much satisfaction we would take
in rendering such a decision, but it was rendered upon the single basis that so the statute read
* * *. Nevada State Bar Journal, April, 1942, vol. 7, No. 2, p. 46. So, in the present case it is
indicated that counsel for respondent is correct in his assertion that Harrah's statements
disclosed that he is very bitter toward his former wife, Gloria, and is determined not to pay
her charge accounts for this reason. From his statements and his attitude on the witness stand,
we submit that he is stubbornly making it as difficult as possible for his legitimate creditors to
collect monies due and owing to them. While respondent was not his creditor, it is
probably true that he would have paid Gloria's bills if everything had gone smoothly with
their marriage. The same is probably true with regard to Betty's bills. As the laborer is worthy
of his hire, so is the tradesman entitled to payment of the reasonable value of the merchandise
sold by him. But if through lack of foresight the tradesman extends credit to a person from
whom payment cannot thereafter be exacted, that is a situation that we cannot remedy unless
some other responsible person, whether the purchaser's husband or some one else, is legally
liable for such payment.
We do not have the benefit of any opinion written by the trial court, and must look to the
findings for a clue to the theory under which it rendered judgment against appellant. While
the court found that Gloria purchased "as defendant's agent," it also found that her account
was opened and carried on the books and records of respondent in the manner herein
described, which, as we have seen, recognized Gloria as the debtor.
as defendant's agent, it also found that her account was opened and carried on the books
and records of respondent in the manner herein described, which, as we have seen, recognized
Gloria as the debtor. The second of these findings was destructive of the first. The same is
true as to the findings with regard to Betty's purchases. The court also found, first, that the
defendant promised and agreed to pay both of these accounts and, second, that he did not
agree in writing to pay them, or either of them. Accordingly, the judgment cannot be
supported either under the theory of agency or under the theory of the husband's subsequent
promise (void under the statute of frauds) to pay them.
The judgment is hereby reversed, with costs in favor of appellant.
____________
67 Nev. 505, 505 (1950) State v. Fouquette
THE STATE OF NEVADA, Respondent, v. CLAYTON
OCTAVE FOUQUETTE, Appellant.
No. 3564
August 10, 1950. 221 P.2d 404.
Clayton Octave Fouquette was convicted in the District Court, Clark County, Frank
McNamee, Judge, Department No. 1, of murder in the first degree, and he appealed. The
Supreme Court, McKnight, District Judge, held that evidence sustained finding that
confessions of accused were made freely and voluntarily and were not the result of torture,
physical or psychological and were made without inducements, threats or the use of coercion
or intimidation and without promise of reward or immunity from punishment or other
promises and that evidence sustained the conviction.
Judgment affirmed.
The first eight amendments to the federal constitution have reference only to powers exercised by the
United States whether by congress or by the judiciary and are in no wise a restriction upon the
power of the states or in any respect applicable to state courts.
restriction upon the power of the states or in any respect applicable to state courts. U.S.C.A.Const.
Amends. 1-8.
The terms due process of law and law of the land are synonymous.
The law of the land as applicable to criminal cases in state courts, necessarily means the law of the state
where the offense is committed and where the trial takes place.
Due process of law not only requires that a party shall be properly brought into court but that he shall
have the opportunity when in court to establish any fact which, according to the usages of the common law
or the provisions of the constitution, would be a protection to himself or property.
5. Witnesses.
At common law, in cases of felony, a defendant could not demand, as a matter of right, compulsory
process for his witnesses.
6. Witnesses.
Statute providing that in criminal action defendant is entitled to produce witnesses on his behalf and
uniform act to secure attendance of witnesses from without state in criminal cases do not confer upon the
courts of the state authority to procure the attendance and testimony of witnesses from without the state for
the defendant in any case at the expense of the public. N.C.L.1929, sec. 10654; N.C.L.1931-1941 Supp.,
secs. 11359-11359.06.
7. Witnesses.
Material witnesses from without the state may, under certain conditions, be commanded to attend and
testify in criminal prosecutions in the state and whether witnesses are material can only be determined by
the judge after hearing at which a showing must be made that the testimony to be given by the witnesses is
material. N.C.L.1931-1941 Supp., secs. 11359-11359.06.
8. Witnesses.
Failure to summon witnesses from outside state to attend and testify at trial was not error where affidavits
of such witnesses showed their testimony to be immaterial. N.C.L. 1929, sec. 10654; N.C.L.1931-1941
Supp., secs. 11359-11359.06.
9. Criminal Law.
Where circumstances exist which make it impossible to obtain an impartial jury or where there is such a
state of public excitement against the accused that even an impartial jury would be likely to be intimidated
and overawed by public demonstrations against the accused, accused is entitled to a change of venue.
N.C.L.1929, sec. 10913.
10. Criminal Law.
Where court, after considering affidavits and newspaper articles and oral testimony offered in
support of and in opposition to application for change of venue denied application
without prejudice on part of accused to renew his motion at a later date the method
adopted by the court to determine whether a fair and impartial jury could be obtained
was proper and failure of defendant to renew application constituted a waiver of all
objections to denial of the application.
articles and oral testimony offered in support of and in opposition to application for change of venue
denied application without prejudice on part of accused to renew his motion at a later date the method
adopted by the court to determine whether a fair and impartial jury could be obtained was proper and
failure of defendant to renew application constituted a waiver of all objections to denial of the application.
N.C.L.1929, sec. 10913.
11. Criminal LawJury.
Where challenges for cause by accused's counsel failed to specify grounds upon which they were based,
disallowing such challenges was proper, but in any event was not prejudicial in view of unused peremptory
challenges. N.C.L.1929, sec. 10948.
12. Jury.
Where examination of jurors who stated that they had formed opinions disclosed that whatever opinion
each had was based on newspaper articles and discussions with persons not claiming to know the facts and
each stated that he would decide case on evidence admitted at trial and instructions given by court and none
stated that he had formed or expressed an unqualified opinion or belief in regard to guilt or innocence of
accused, failure to excuse such jurors without challenge was not error.
13. Jury.
Where accused's counsel was expressly permitted to examine juror at great length after challenge made
by accused had been disallowed and after the prospective juror had been examined by the prosecution and
passed for cause ruling of court that accused would not be permitted to so proceed with any more jurors but
that he must exhaust all his challenges for cause to a juror before prosecution began its examination of that
juror was proper. N.C.L.1929, sec. 10954.
14. Criminal Law.
Where no prejudice results, error in limiting the examination of prospective jurors is not ground for
reversal.
15. Criminal Law.
Where watch was identified by father of deceased as one which had belonged to deceased and by jeweler
as one he had repaired for deceased and by motel operator as one which was pawned to him by accused on
day following homicide and accused admitted having had possession of watch and of hocking it to motel
operator, admission of watch was proper.
16. Criminal Law.
Where bank bag was identified by manager of service station where deceased was employed as one used
for handling of moneys received at station and by one who testified that he found it a week after finding of
deceased's body between station and location where body of deceased was found and accused testified that
money he took from deceased was contained in bag which he threw away, admission of bag was proper.
17. Criminal Law.
Where bag was identified by operator of motel as having been found by her morning following accused's
arrest, under bed in motel occupied by accused the previous night and at time of discovery bag contained
gun admitted in evidence and other articles not admitted and accused testified that deceased was killed with
gun found in bag admission of bag was not prejudicial error.
18. Criminal Law.
Where two pieces of blood-stained matting and small piece of bone were identified by deputy sheriff as
having been taken from accused's car shortly after his arrest and Federal Bureau of Investigation technician
testified that stains on matting and on bone were made by human blood and physician who examined body
of deceased testified that deceased's skull was shattered by bullet and that small piece of skull was missing
and accused testified that car from which matting and bone were taken was car used by him at time of
killing, admission of matting and bone was proper.
19. Criminal Law.
Where accused in murder prosecution was asked during cross-examination whether he had written bad
checks and accused answered in the affirmative and no objection was made to admission of such evidence,
on appeal the supreme court would not consider question of admissibility of such evidence.
20. Criminal Law.
Where accused in murder prosecution did not request instruction that testimony of other crimes be
disregarded, on appeal accused could not complain of failure of court to instruct jury on its own motion to
disregard such testimony.
21. Criminal Law.
The omission of the court to instruct the jury of its own motion upon any given point is not error.
22. Homicide.
When a killing is done in the perpetration or attempt to perpetrate robbery or any other of the enumerated
felonies it is not essential for the state to prove that it was willful, deliberate and premeditated. N.C.L.1929,
sec. 10109; N.C.L. 1943-1949 Supp., sec. 10068.
23. Homicide.
Where possession of money was obtained by accused at service station when he held up attendant at point
of gun accused then committed crime of robbery so far as to render himself liable to punishment for it but
the robbery, in contemplation of law, was not completed so far as the subsequent killing of the attendant
was concerned until accused had secured complete control of the property taken from the victim.
N.C.L.1929, sec. 10109.
24. Robbery.
Robbery, unlike burglary, is not confined to a fixed locus, but is frequently spread over
considerable distance and varying periods of time.
but is frequently spread over considerable distance and varying periods of time. N.C.L.1929, sec. 10109.
25. Robbery.
Robbery, a combination of the crime of assault with that of larceny, includes, as does larceny, the element
of asportation and the taking away is a transaction which continues as the perpetrator departs from the
place where the property was seized. N.C.L.1929, sec. 10109.
26. Robbery.
The perpetration of the crime of robbery is not completed the moment the stolen property is in the
possession of the robber but the escape of the robber with his ill-gotten gains by means of arms is as
important to the execution of the robbery as gaining possession of the property. N.C.L.1929, sec. 10109.
27. Homicide.
Acts of taking victim of robbery from scene of crime in automobile for purpose of removing him to a
place where he could less easily raise an alarm and summon aid are committed in the perpetration of the
robbery. N.C.L.1929, sec. 10109.
28. Homicide.
When the homicide is within the res gestae of the initial crime and is an emanation thereof, it is
committed in the perpetration of that crime in the statutory sense.
29. Criminal Law.
The res gestae embraces not only the actual facts of the transaction and the circumstances surrounding
it, but the matters immediately antecedent to and having a direct causal connection with it, as well as acts
immediately following it and so closely connected with it as to form in reality a part of the occurrence.
30. Homicide.
Where accused testified that he probably did not secure possession and did not secure control of money
until after he had killed service station attendant and accused did not claim that he acquired control or
secured possession of attendant's watch which was admittedly a part of personalty taken in robbery before
he killed attendant, the murder was clearly within the res gestae of robbery regardless of whether accused
unintentionally killed deceased or whether killing was intentional. N.C.L.1929, sec. 10109;
N.C.L.1943-1949 Supp., sec. 10068.
31. Homicide.
One who kills another in the perpetration or attempt to perpetrate any arson, rape, robbery or burglary is
guilty of murder in the first degree regardless of any question of whether killing was intentional or
unintentional. N.C.L.1943-1949 Supp., sec. 10068.
32. Homicide.
Instruction that to constitute a murder during commission of robbery murder may occur either
before or after money or loot was actually taken from possession or presence of
victim but must occur during time robbery is being executed and that robbery begins
moment robber by force or violence or threat thereof places victim under his fearful
domination in effort to obtain money or property of victim and continues as long as
victim is subjected to force or violence or threat thereof originally applied, was
proper.
of robbery murder may occur either before or after money or loot was actually taken from possession or
presence of victim but must occur during time robbery is being executed and that robbery begins moment
robber by force or violence or threat thereof places victim under his fearful domination in effort to obtain
money or property of victim and continues as long as victim is subjected to force or violence or threat
thereof originally applied, was proper. N.C.L.1929, sec. 10109; N.C.L.1943-1949 Supp., sec. 10068.
33. Criminal Law.
The giving of instructions which were assigned as error but not discussed in brief would not be
considered by the supreme court.
34. Homicide.
The term corpus delicti as applied to homicide cases involves the fact of death and the criminal agency
of another person as to the cause of death, but the criminal agency of the accused or, as sometimes stated,
the identity of the perpetrator of the homicide, is not an element of the corpus delicti.
35. Criminal Law.
Evidence of two furrows from highway to victim's body between which furrows there were large blood
spots and that furrows could only have been made by victim's heels as body was dragged from highway to
place of concealment was sufficient independent evidence to establish the corpus delicti and to allow
admission of written confessions by accused.
36. Criminal Law.
Where court, in absence of jury and after hearing testimony from both parties, ruled that confessions were
voluntary and confessions were thereafter admitted and with express consent of defendant's counsel were
entered in record and proof of confessions was submitted to jury, question whether voluntariness of
confessions should have been submitted to jury was not before supreme court but submission of question to
jury was beneficial to accused and was not reversible error.
37. Criminal Law.
Where accused became witness in his own behalf and testified substantially in accordance with his
confessions, admission of such confessions, even if erroneous, was not prejudicial error.
38. Criminal Law.
Where court, in absence of jury, heard testimony from both parties on question of voluntariness of
confessions and thereafter submitted proof of confessions to jury and record disclosed that procedure
adopted by court was not only consented to by defendant's counsel but was in part suggested by him and
without objection and without request that any witness be again examined he assisted in reading to jury
testimony as to voluntariness of confessions, which, at his request, had been taken before court in
absence of jury, on appeal defendant could not complain of failure of court to
re-examine witnesses in presence of jury.
been taken before court in absence of jury, on appeal defendant could not complain of failure of court to
re-examine witnesses in presence of jury.
39. Criminal Law.
A voluntary confession is not rendered inadmissible because obtained after accused was taken into
custody and prior to time he was taken before magistrate.
40. Criminal Law.
In murder prosecution, evidence sustained finding that defendant's confessions were made freely and
voluntarily and were not the result of torture, physical or psychological and were made without
inducements, threats or the use of coercion or intimidation and without promise of reward or immunity
from punishment or other promises.
41. Criminal Law.
Where superintendent and medical director of state hospital testified against accused as to treatment of
and statements made by accused and no objection was made thereto on ground that statements were
privileged communications and violated accused's right of immunity from self-incrimination, question of
admissibility of such testimony would not be considered by supreme court.
42. Witnesses.
Under statute providing that a licensed physician or surgeon shall not, without consent of patient, be
examined as witness as to any information acquired in attending patient necessary to enable him to
prescribe or act for patient the quoted words apply to a person not prohibited by statute regulating practice
of medicine, surgery and obstetrics from practicing in the state. N.C.L.1929, secs. 4090-4107; N.C.L.
1943-1949 Supp., sec. 8974.
43. Witnesses.
Where doctor was admittedly not a licensed physician or surgeon of the state when he examined accused
and received information about which he later testified such information was not privileged and admission
of testimony thereof was not error. N.C.L.1929, secs. 4090-4107; N.C.L.1943-1949 Supp., sec. 8974.
44. Witnesses.
In order for physician to be incompetent under statute providing that a licensed physician or surgeon shall
not without consent of patient be examined as witness as to any information acquired in attending patient
which was necessary to enable him to prescribe or act for patient the relation of physician and patient must
have existed between physician and person as to whose statements, symptoms, or conditions he is called to
testify, at time when he required information which he is requested to disclose. N.C.L.1929, secs.
4090-4107; N.C.L.1943-1949 Supp., sec. 8974.
45. Witnesses.
Where doctor was sent by district attorney solely for purpose of examining accused in order to report
upon his sanity, relation of physician and patient did not exist between doctor and accused, and information
was not required in attending a patient necessary to enable physician to prescribe or act for patient and
admission of testimony by doctor of such statements was not error.
46. Witnesses.
The prohibition against a physician testifying exists only as to information acquired in attending the
patient which was necessary to enable physician to prescribe or act for patient.
47. Criminal Law.
Where insanity was interposed as defense in murder prosecution and physician, not licensed in state, was
employed to report on sanity of accused and examination was consented to by accused, admission of
physician's findings with respect thereto did not violate constitutional privilege of accused not to be a
witness against himself. N.C.L.1929, secs. 4090-4107; N.C.L.1943-1949 Supp., sec. 8974.
48. Criminal Law.
Where objections to admission of evidence were not mentioned in accused's brief, supreme court would
assume that no reliance was placed thereon and that objections were waived.
49. Criminal Law.
Under statute providing that jurors sworn to try criminal action may, at any time, before submission of
case to jury in discretion of court be permitted to separate or be kept in charge of the proper officer, jury
are permitted to separate at adjournments and recesses until case is submitted to them for decision unless
court in its discretion orders them kept together in charge of an officer during progress of trial. N.C.L.1929,
sec. 10990.
50. Criminal Law.
Where it was admitted that accused's counsel consented to separation of jury, objections of accused
thereto, if any, were waived. N.C.L.1929, sec. 10990.
51. Criminal Law.
Where evidence clearly established guilt of accused beyond all possible doubt and fully justified
punishment fixed, fact that jury's consideration and deliberation after submission consumed only 15
minutes did not indicate misconduct on part of jury or error of court in receiving verdict.
52. Homicide.
Evidence sustained conviction of murder in the first degree.
53. Criminal Law.
Refusal of court to grant new trial upon ground of newly discovered evidence was proper where such
evidence related to mental and physical condition of accused long prior to murder which
was known to accused and his counsel before trial.
to mental and physical condition of accused long prior to murder which was known to accused and his
counsel before trial.
Lewis, Hawkins & Cannon and John Bonner, all of Las Vegas, and E. R. Miller, Jr., of
Ely, for Appellant.
Alan Bible, Attorney General; Geo. P. Annand and Robert L. McDonald, Deputy Attorneys
General; Robert E. Jones, District Attorney of Clark County, Las Vegas; and J. K. Houssels,
Jr., Deputy District Attorney, Las Vegas, for Respondent.
OPINION
By the Court, McKnight, District Judge:
Appellant was convicted of murder in the first degree and his punishment fixed at death by
the jury. His appeal is from the judgment and from the order denying his motion for new trial.
The pertinent facts will be stated in discussing some of the many assignments of alleged
error.
Appellant first contends that the court, in violation of and contrary to the provisions of the
5th, 6th and 14th amendments to the constitution of the United States, article I, section 8, of
the Nevada constitution, and section 10654, N.C.L.1929, erred in denying defendant's
application to bring two witnesses from California to Nevada, at the expense of Clark
County, to testify in his behalf.
1. The 5th and 6th amendments, relied upon by appellant, as well as all of the remaining
first eight amendments to the federal constitution, have reference only to powers exercised by
the government of the United States, whether by congress or by the judiciary, and are in no
wise a restriction upon the power of the states or in any respect applicable to state courts.
Eilenbecker v. District Court, 134 U.S. 31, 10 S.Ct. 424, 35 L.Ed. 801, 803; State of Ohio ex
rel.
State of Ohio ex rel. Lloyd v. Dollison, 194 U.S. 445, 24 S.Ct. 703, 48 L.Ed. 1062, 1065;
State v. Jones, 7 Nev. 408, 415; State v. Chin Gim, 47 Nev. 431, 442, 224 P. 798; State v.
Squier, 56 Nev. 386, 399, 54 P.2d 227.
The portion of the 14th amendment to the constitution of the United States and the portion
of article I, section 8, of the Nevada constitution, relied upon by appellant, provide, in effect,
that no person shall be deprived of life, liberty, or property without due process of law.
2. The terms due process of law and law of the land are synonymous. Vol. 13, Words
and Phrases, Perm.Ed., pages 535, 536; 16 C.J.S., Constitutional Law, page 1142, sec. 567,
note 15.
3. The law of the land, as applicable to criminal cases, in state courts, necessarily means
the law of the state where the offense is committed and where the trial takes place. Anderson
v. State, 8 Okl.Cr. 90, 126 P. 840, Ann.Cas. 1914C, 314, 321; Prescott v. State, 56 Okl.Cr.
259, 37 P.2d 830, 833; In re McKee, 19 Utah 231, 57 P. 23, 27; see, also, In re Krug, C.C.,
Wash., 79 F. 308, 311; Lamar v. Prosser, 121 Ga. 153, 48 S.E. 977; 16 C.J.S., Constitutional
Law, page 1171, sec. 579, note 12.
4. Due process of law not only requires that a party shall be properly brought into court,
but that he shall have the opportunity when in court to establish any fact which, according to
the usages of the common law or the provisions of the constitution, would be a protection to
himself or property. Wright v. Cradlebaugh, 3 Nev. 341, 349; Pershing v. Reno Stock
Brokerage Co., 30 Nev. 342, 349, 96 P. 1054.
5. At common law, in cases of felony, a defendant could not demand, as a matter of right,
compulsory process for his witnesses. Pittman v. State, 51 Fla. 94, 41 So. 385, 8 L.R.A.,N.S.,
509, 515; Osborn v. People, 83 Colo. 4, 262 P. 892, 893; United States v. Reid, 12 How. 361,
53 U.S. 361, 13 L.Ed. 1023, 1024; Underhill's Criminal Evidence, 4th ed., page 916, sec. 441,
note 6; 70 C.J., Witnesses, page 35, sec. 5, note 28; 14 Am.Jur., Criminal Law, page 881, sec.
163, note 19.
The portion of section 10654, N.C.L., 1929, relied upon by appellant, provides that in a
criminal action the defendant is entitled to produce witnesses on his behalf.
6. Certainly this statute does not entitle a defendant to have witnesses brought into court at
public expense. Roberts v. State, 94 Ga. 66, 21 S.E. 132, 135; Whittle v. Saluda County, 59
S.C. 554, 38 S.E. 168, 169; Casebeer v. Hudspeth, Warden, 10 Cir., 121 F.2d 914, 916; State
v. Waters, 39 Me. 54, 61; Henderson v. Evans, 51 S.C. 331, 29 S.E. 5, 40 L.R.A. 426; State
v. Nathaniel, 52 La.Ann. 558, 26 So. 1008, 1010; Greene v. Ballard, 174 Ky. 808, 192 S.W.
841, 843; 14 Am.Jur., Criminal Law, page 882, sec. 166; note, 8 L.R.A.,N.S., 509.
The Uniform Act to Secure the Attendance of Witnesses from Without the State in
Criminal Cases, sections 11359 to 11359.06, N.C.L.1931-1941 Supplement, is not cited by
appellant.
Although no case directly in point has been found, it is clear that this statute, providing, as
it does, that specified sums for fees and mileage shall be paid or tendered to nonresident
witnesses summoned to attend and testify in criminal prosecutions in this state, but not
providing, either expressly or by implication, that such witnesses summoned on behalf of the
defendant shall be brought in without expense to him, does not confer upon the courts of this
state authority to procure the attendance and testimony of witnesses from without the state for
the defendant in any case at the expense of the public. Greene v. Ballard, supra, 174 Ky. 808,
192 S.W. 841, 843. See, also, authorities supra.
But this matter need not be further discussed, because the trial court actually permitted the
defendant to bring four witnesses from California at the expense of Clark County, and denied
defendant's motion to bring the two additional witnesses from that state at public expense,
only because the testimony of both, as shown by their affidavits upon which the motion was
based, was incompetent and immaterial.
Appellant's novel contention, as expressed in his reply brief, that: "To limit the question
strictly to the matters set forth in the affidavits submitted in support of the motion was
also improper as no doubt other pertinent evidence could have been elicited from such
witnesses at the trial had the accused been allowed to produce them," is neither
supported by authority nor based on reason.
brief, that: To limit the question strictly to the matters set forth in the affidavits submitted in
support of the motion was also improper as no doubt other pertinent evidence could have
been elicited from such witnesses at the trial had the accused been allowed to produce them,
is neither supported by authority nor based on reason.
7, 8. Material witnesses from without the state may, under certain conditions, be
commanded to attend and testify in criminal prosecutions in the state. Obviously this does not
mean that all persons are material witnesses who are so designated by either party, or because
they might possibly give pertinent evidence at the trial. Whether the witnesses are material
can only be determined by the judge after hearing. At such hearing a showing that the
testimony to be given by the witnesses is material must be made. Witnesses whose testimony
is shown by their affidavits to be immaterial, as in this case, are not material witnesses, and
should not be summoned to attend and testify. Secs. 11359-11359.06, N.C.L. 1931-1941
Supplement. See, also, Palmer v. State, 165 Ala. 129, 51 So. 358, 359; State v. Pope, 78 S.C.
264, 58 S.E. 815, 816; 70 C.J., Witnesses, pages 37, 38, sec. 8, note 69.
Appellant next contends that the court erred in denying his application for change of
venue.
The statute under which the application was made reads: A criminal action prosecuted by
indictment or information may be removed from the court in which it is pending, on
application of the defendant or state, on the ground that a fair and impartial trial cannot be
had in the county where the indictment or information is pending. Sec. 10913, N.C.L.1929.
9. The existence of either of two circumstances should entitle a defendant to a change of
venue: (1) The impossibility of obtaining an impartial jury; or (2) Such a state of public
excitement against the defendant, that even an impartial jury would be likely to be
intimidated and overawed by public demonstrations against the accused.
accused. State v. Millain, 3 Nev. 409, 432; State v. Casey, 34 Nev. 154, 164, 117 P. 5.
10. After considering affidavits and newspaper articles offered in support of the
application and oral testimony offered in opposition thereto, the court properly held that the
evidence was not sufficient to justify a change of venue because of the existence of any great
public excitement against the defendant, and that the impossibility of obtaining a fair and
impartial jury could best be determined when the jurors were examined. The application was
thereupon denied, without prejudice on the part of the defendant to renew his motion at a
later time.
The method adopted by the court to determine whether or not a fair and impartial jury
could be obtained has been approved by this court. State v. Gray, 19 Nev. 212, 215, 8 P. 456;
State v. Teeter, 65 Nev. 584, 200 P.2d 657, 671, 690.
The jury, including one alternate juror, were empaneled and sworn after the examination
of only thirty-four veniremen, the allowance of only eleven challenges for implied bias, four
of which resulted from challenges by the State, and the retention by appellant of two unused
peremptory challenges, and without any renewal by appellant of his motion for change of
venue. The jurors selected apparently were satisfactory to the appellant, or doubtless he
would have renewed the motion. State v. Teeter, supra, 65 Nev. 584, 200 P.2d 657, 671,
689-690.
A mere reading of the decision in State v. Dwyer, 29 Nev. 421, 91 P. 305, the only case
relied upon by appellant, is sufficient to show that the facts in that case are so materially
different from those in the case at bar that such case has no application whatever.
Moreover, appellant cannot now claim that error was committed by the court in denying
his application for change of venue, as all objections to such denial were clearly waived by
appellant, by his failure to renew the application after express permission to do so. People v.
Fredericks, 106 Cal. 554, 39 P. 944, 945; People v. Staples, 149 Cal.
Staples, 149 Cal. 405, 86 P. 886, 888; 22 C.J.S., Criminal Law, page 349, sec. 222, notes 79,
80; 7 Cal.Jur., Criminal Law, page 918, sec. 64, note 2.
11. Appellant next contends that the court erred in disallowing challenges for cause to
jurors Rodney W. Webb, Lawrence Higbee and Margaret Swift.
The challenges interposed by appellant's counsel were in the following words: As to
Rodney W. Webb: I believe, if your Honor please, just for the purpose of the record, I will
challenge Mr. Webb. As to Lawrence Higbee: I will challenge Mr. Higbee; We renew the
challenge; and At this time I would like to renew the challenge of this juror. As to
Margaret Swift: We will challenge the juror, your Honor; and We renew our challenge, I
believe the witness is not qualified.
All of these challenges were interposed in general terms. Not one was specific, in that it
specified no ground upon which it was based, as expressly required by sec. 10948, N.C.L.
1929. Each was, therefore, insufficient and properly disallowed. State v. Squaires, 2 Nev.
226, 230; State v. Chapman, 6 Nev. 320, 327; State v. Raymond, 11 Nev. 98, 106; State v.
Gray, supra, 19 Nev. 212, 218, 8 P. 456; State v. Vaughan, 22 Nev. 285, 296, 39 P. 733; State
v. Simas, 25 Nev. 432, 449, 62 P. 242; State v. Salgado, 38 Nev. 64, 70, 145 P. 919, 150 P.
764; State v. Milosovich, 42 Nev. 263, 269, 175 P. 139; State v. Lewis, 50 Nev. 212, 224,
255 P. 1002; State v. Teeter, supra, dissenting opinion, 65 Nev. 584, 200 P.2d 657, 691.
It matters not whether the court disallowed said challenges for the reason that they were
insufficient in form, or because each of the jurors to which challenges were interposed was
deemed free from objection, as the rulings must be sustained for failure of appellant to
specify any ground upon which each challenge was based. State v. Chapman, supra, 6 Nev.
320, 327; State v. Salgado, supra, 38 Nev. 64, 73, 145 P. 919, 150 P. 764.
In no event, however, was appellant injured nor in any position to complain, because, as
shown by the record, the three jurors to which challenges for cause had been previously
disallowed, were peremptorily challenged by appellant and excused by the court, and
appellant had two peremptory challenges remaining after the jury were empaneled and
sworn.
the three jurors to which challenges for cause had been previously disallowed, were
peremptorily challenged by appellant and excused by the court, and appellant had two
peremptory challenges remaining after the jury were empaneled and sworn. Fleeson v. Savage
Silver Mining Co., 3 Nev. 157, 162; State v. Raymond, supra, 11 Nev. 98, 108; State v.
Hartley, 22 Nev. 342, 557, 40 P. 372, 28 L.R.A. 33; Burch v. Southern Pacific Co., 32 Nev.
75, 104, 104 P. 225, Ann.Cas. 1912B, 1166.
12. Appellant next contends that, because jurors Frank Belding, Vaughan Harris and Mark
W. Gamett each stated that he had formed an opinion, the court erred in not excusing them,
even though they were not challenged.
The examination of jurors Vaughan Harris and Mark W. Gamett, taken as a whole,
discloses that whatever opinion each had was based on newspaper articles and discussions
with persons not claiming to know the facts. Each of them stated, in effect, that he would
decide the case on the evidence admitted at the trial and the instructions given by the court.
Neither of them stated that he had formed or expressed an unqualified opinion or belief in
regard to the guilt or innocence of the defendant. Had a specific challenge to each been
interposed, it should have been disallowed, sec. 10946, N.C.L.1929; State v. Raymond, supra,
11 Nev. 98, 107; State v. Williams, 28 Nev. 395, 407-410, 82 P. 353; State v. Milosovich,
supra, 42 Nev. 263, 269-272; 175 P. 139; State v. Lewis, supra, 50 Nev. 212, 225-229, 255 P.
1002; State v. Teeter, supra, dissenting opinion, 65 Nev. 584, 200 P.2d 657, 691, 692; State
v. Varga, 66 Nev. 102, 205 P.2d 803, 811.
As to juror Frank Belding, it is not necessary to determine whether a specific challenge, if
made, should have been allowed. Even if one had been made and erroneously disallowed,
appellant could not have been prejudiced thereby, because, at the time of the completion and
acceptance of the jury, he had not exhausted his peremptory challenges. State v. Fondren, 24
Idaho 663, 135 P.
663, 135 P. 265, 266; Bryant v. State, 7 Wyo. 311, 51 P. 879, 880, 56 P. 596; People v.
Winthrop, 118 Cal. 85, 50 P. 390, 391; 8 Cal.Jur., Criminal Law, Page 609, sec. 595, notes
6-9; 24 C.J.S., Criminal Law, pages 888, 889, sec. 1900, notes 79-81.
By his own act in not setting aside any of the jurors when he had the power to do so, it is
rendered clear that he had a jury satisfactory to himself. Fleeson v. Savage Silver Mining Co.,
supra, 3 Nev. 157, 164.
13. Appellant next contends that the court erred in unduly limiting appellant's counsel in
questioning Lawrence Higbee and other jurors.
The record discloses that appellant's counsel was expressly permitted to examine
Lawrence Higbee at great length, after a challenge made by him had been traversed and
disallowed; after the court had asked him if he then desired to ask any more questions, and he
had declined; and after the prospective juror had been examined by the prosecution and
passed for cause. It also discloses that appellant was not limited in his direct examination of
any other juror.
However, in permitting appellant's counsel to again examine Lawrence Higbee, after the
prosecution had examined and passed said juror for cause, the court advised him, in effect,
that he would not be permitted to so proceed with any more jurors, but that he must exhaust
all his challenges for cause to a juror before the prosecution began its examination of that
juror; and further stated, in effect, that said warning was inserted in the record, so that
appellant's rights would not be prejudiced in any way. The court then read the statute: All
challenges to an individual juror, except peremptory, must be taken, first by the defendant,
and then by the state, and each party must exhaust all his challenges before the other begins.
Sec. 10954, N.C.L.1929.
Similar rulings have been repeatedly sustained by the courts of California, the state from
which our statute was adopted. People v. Stonecifer, 6 Cal. 405, 409; People v. Collins, 105
Cal. 504, 39 P. 16, 18; People v. Lesse, 52 Cal.App.
Lesse, 52 Cal.App. 280, 199 P. 46, 48; People v. Spraic, 87 Cal.App. 724, 262 P. 795, 797.
14. Moreover, where no prejudice results, error in limiting the examination of prospective
jurors is not ground for reversal. People v. Coen, 205 Cal. 596, 271 P. 1074, 1077; People v.
Jefferson, 84 Cal.App.2d 709, 191 P.2d 487, 489; State v. Lippard, 223 N.C. 167, 25 S.E.2d
594, 597, certiorari denied 320 U.S. 749, 64 S.Ct. 52, 88 L.Ed., 445; State v. Grambo, 82
Ohio App. 473, 75 N.E.2d 826, 827; 24 C.J.S., Criminal Law, page 886, sec. 1900, note 56.
Except for some general statements not supported by the record, appellant has wholly
failed to show how or in what manner he was prejudiced by said rulings. The record discloses
that out of twenty-seven persons subsequently examined for regular jurors, seventeen were
passed for cause and ten were challenged by appellant; that nine of said challenges were
allowed by the court and the prospective jurors excused; and that only one of said challenges
was disallowed by the court, whereupon appellant's counsel was expressly asked if he had any
other challenges and if he wished to examine further on the other grounds, to which he
replied: No, I don't think so. Later this juror was peremptorily challenged by appellant and
excused. It nowhere appears that appellant's counsel ever requested that he be permitted to
further examine any juror after concluding his direct examination. Thus, it is clear that
appellant was not prejudiced by said rulings.
Appellant next contends that the court erred in admitting in evidence certain things marked
as exhibits, namely, a watch, a bank bag, a bag, two pieces of bloodstained matting, and a
small piece of bone.
15. The watch was identified by the father of deceased, as one which had belonged to the
deceased; by a Las Vegas jeweler as one which he had previously repaired for the deceased;
and by a Las Vegas motel operator as one which was pawned to him by the appellant on the
day following the homicide. The appellant admitted having had possession of the watch
and of "hocking" it to the motel operator.
admitted having had possession of the watch and of hocking it to the motel operator.
16. The bank bag was identified by the manager of the service station where deceased was
employed, as the bag in use for the handling of moneys received at said station, and by Roy
Foster, who testified that he found it approximately a week after the finding of deceased's
body, about two and one-half feet off the highway between the said service station and the
location where the body of deceased was found. Appellant testified that the money he took
from deceased was contained in a bag, which he threw away.
17. The other bag was identified by the operator of the motel as having been found by her
the morning following appellant's arrest, under one of the beds in the motel room occupied by
appellant the previous night. At the time of its discovery, it contained the gun admitted in
evidence and some miscellaneous articles not admitted. Appellant's testimony showed that
the deceased was killed with the gun found in the bag.
18. The two pieces of blood-stained matting and the small piece of bone were identified by
a deputy sheriff as having been taken from appellant's car shortly after his arrest, and the
F.B.I. technician testified that the stains on the matting and on the bone were made by human
blood. The physician who examined the body of deceased testified that deceased's skull was
shattered by the bullet, and that a small piece of the skull was missing. Appellant's testimony
showed that the car from which the matting and the bone were taken was the car used by him
at the time of the killing.
Aside from the bag found under the bed, all of these exhibits were clearly admissible; and
the admission of the bag, even if erroneous, could not have resulted in any possible prejudice
to appellant. State v. Gee Jon, 46 Nev. 418, 429, 430, 211 P. 676, 217 P. 587, 30 A.L.R.
1443.
Appellant next contends that the court erred in refusing to instruct the jury to acquit the
defendant.
This assignment is so devoid of merit that it requires no consideration.
19. Appellant next contends that the court erred in refusing to declare a mistrial.
This contention is predicated upon the denial of appellant's motion to declare a mistrial,
made after the completion of his cross-examination, because of a question asked appellant
during said cross-examination and his answer thereto, as follows:
Q. You had been writing bad checks, too, hadn't you?
A. Yes, I did.
As no objection was made to the admission of this evidence, its admissibility will not now
be considered. State v. Lawrence, 28 Nev. 440, 449, 82 P. 614; State v. Mangana, 33 Nev.
511, 522, 112 P. 693; State v. Clarke, 48 Nev. 134, 140, 228 P. 582, 583; State v. Jukich, 49
Nev. 217, 236, 242 P. 590.
20. Appellant next contends that the court erred in not instructing the jury, of its own
motion, to disregard the testimony of other crimes.
The testimony to which this assignment has reference, is the one question asked appellant
by the prosecution about writing bad checks, which was asked and answered without
objection, after appellant had introduced an exhibit in which the facts regarding such checks
were fully covered; and to the voluntary statement by one of the witnesses, who, in referring
to what appellant had told him about bringing the girl from and returning her to San
Bernardino, and claiming not to know her name or what she looked like, added in spite of
the fact that he slept with her. Upon objection, and request that the witness be instructed to
offer no comments of that kind, the court immediately admonished the witness to be careful
of his remarks, and not to volunteer what he didn't know, to which the witness replied: That
is unfounded and I am sorry.
The evidence shows that appellant, in company with the girl, referred to in the testimony,
whom he met in a barroom in San Bernardino, on August 17, 194S, registered at a motel in
Boulder City, on August 19, the day of the murder, and in Las Vegas, on August 20, the
day before he returned to San Bernardino with the girl, where he left her.
barroom in San Bernardino, on August 17, 1948, registered at a motel in Boulder City, on
August 19, the day of the murder, and in Las Vegas, on August 20, the day before he returned
to San Bernardino with the girl, where he left her. How appellant can now complain of the
testimony to which he refers is not plain.
Besides, appellant did not request that the jury be instructed to disregard the testimony of
other crimes. If, in fact he believed that the jury should have been so instructed, it was his
right and his duty to have prepared such an instruction and asked the court to give it. State v.
Smith, 10 Nev. 106, 122; State v. Simas, supra, 25 Nev. 432, 447, 62 P. 242; State v.
Thompson, dissenting opinion, 31 Nev. 209, 225-226, 101 P. 557; State v. Acosta, 49 Nev.
184, 192, 242 P. 316.
21. Not having done so, appellant is in no position to complain, for it is well settled that
the omission of the court to instruct the jury of its own motion, upon any given point is not
error. State v. McLane, 15 Nev. 345, 367; State v. Hing, 16 Nev. 307, 311; State v.
Thompson, supra, dissenting opinion, 31 Nev. 209, 225-226, 101 P. 557; see, also, State v.
Mangana, supra, 33 Nev. 511, 522, 112 P. 693.
Appellant next contends that the court erred in giving instructions 16, 18, 20, 21, and 24.
Instruction No. 16 reads as follows:
A murder is committed in the perpetration of robbery when it is committed by the
accused while he is engaged in any act required for the full execution of the robbery. To
constitute a murder during the commission of robbery, the murder may occur either before or
after the money or other loot is actually taken from the possession or presence of the victim,
but it must occur during the time the robbery is being executed.
The duration of the execution of the robbery is not necessarily confined to a fixed
moment or a particular place, but may extend over a considerable time or a wide area. The
robbery begins the moment the robber by force or violence, or threat of force or violence,
places the victim under his fearful domination in an effort to obtain the money or property
of the victim.
force or violence, or threat of force or violence, places the victim under his fearful
domination in an effort to obtain the money or property of the victim. It continues all during
the actual taking of the loot by the robber. Furthermore, the robbery continues so long as the
victim is subjected to the force or violence or threat of force or violence originally applied.
To ascertain whether this instruction correctly states the law, or, if not, whether it was
prejudicial to appellant, it is necessary to determine whether the murder was committed in the
perpetration of a robbery.
Appellant testified that on August 19, 1948, he held up Donald Brown, a service station
attendant, as the latter was closing the station for the night, at the point of a gun which he had
taken from the residence of an acquaintance in California; that he does not know how much
money he took from the attendant; that he imagines it was around $50 or $60; that he does
not believe he took the money from the attendant right then; that he compelled the attendant
to accompany him in his automobile; that he believes the attendant carried the bag of money
in the car himself; that he drove for some time, up and down the highway, looking for a
lonesome spot to leave the attendant; that he judges that he drove around with the attendant
for at least a half hourhe does not know; that they reached a point, a sufficient distance in
his opinion to compel the attendant to walk back, and thus enable him to leave town without
being apprehended, when he stopped the automobile for the purpose of letting out the
attendant; that the gun was then lying on the seat between or was in his right hand, or his
hand was over it; that he believes the attendant either tried to grab the gun from him or to
overpower him; that the gun was in his hand and that he accidentally, either in the tension or
the excitement, pulled the trigger; that he did not intend to kill the attendant; that he dragged
the body some distance from the side of the road, and left it and drove away; that he does not
remember taking the attendant's watch from him; that it might have been during transit;
that he remembers hocking this watch the following day; that he does not remember
when he took the money out of the bag, whether before or after he shot the attendant;
that he believes he remembers throwing the bag away.
not remember taking the attendant's watch from him; that it might have been during transit;
that he remembers hocking this watch the following day; that he does not remember when he
took the money out of the bag, whether before or after he shot the attendant; that he believes
he remembers throwing the bag away.
By other evidence, it was established that the personal property taken from the service
station, consisted of $91.35, and a bag regularly used in which to place the money in the cash
box when closing the station for the night; that the body of the attendant was discovered on
the morning of August 22, 1948, almost wholly concealed behind some brush, forty-six feet
to the right of the pavement on the Boulder City-Las Vegas highway, approximately four
miles from the scene of the holdup; that the deceased had been shot in the head, the bullet
having made its entry two inches to the rear of the corner of the right eye and its exit about
one inch to the rear of the lobe of the left ear; that death was caused by the bullet wound; that
no gun was found in the vicinity of the body; that the deceased's wallet, containing three one
dollar bills, was found eighteen feet distant from the body, between the body and the
highway.
Robbery is defined by statute as follows: Robbery is the unlawful taking of personal
property from the person of another, or in his presence, against his will, by means of force or
violence or fear of injury, immediate or future, to his person or property, or the person or
property of a member of his family, or of anyone in his company at the time of the robbery.
Sec. 10109, N.C.L.1929.
So far as applicable to this case, our statute provides: All murder * * * which shall be
committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary,
* * * shall be deemed murder of the first degree. Sec. 10068, N.C.L.1943-1949 Supplement.
22. When a killing is done in the perpetration or attempt to perpetrate robbery, or any other
of the enumerated felonies, it is not essential for the state to prove that it was willful,
deliberate, and premeditated.
prove that it was willful, deliberate, and premeditated. State v. Sala, 63 Nev. 270, 284, 169
P.2d 524.
Appellant, acting under the assumption that he secured possession of the money at the
service station, at least thirty minutes before he killed the attendant at a distant point, argues
that the killing was committed after the robbery and not in its perpetration.
23. If, in fact, possession of the money was obtained by appellant at the service station,
when he held up the attendant at the point of a gun, appellant then committed the crime of
robbery so far as to render himself liable to punishment for it. State v. Brown, 7 Or. 186, 209;
State v. Turco, 99 N.J.L. 96, 122 A. 844, 846; State v. Messino, 325 Mo. 743, 30 S.W.2d
750, 759.
But the robbery in contemplation of law was not completed so far as the subsequent killing
was concerned until appellant had secured complete control of the property taken from the
victim. State v. Brown, supra, 7 Or. 186, 209; State v. Turco, supra, 99 N.J.L. 96, 122 A. 844,
845-847; State v. Messino, supra, 325 Mo. 743, 30 S.W.2d 750, 759.
24. Robbery, unlike burglary, is not confined to a fixed locus, but is frequently spread over
considerable distance and varying periods of time. People v. Boss, 210 Cal. 245, 290 P. 881,
883; People v. Raucho, 8 Cal.App.2d 655, 47 P.2d 1108, 1112; People v. Kristy, 4 Cal.2d
504, 50 P.2d 798, 800, certiorari denied 297 U.S. 712, 56 S.Ct. 593, 80 L.Ed. 998; People v.
Nixon, 33 Cal.2d 688, 203 P.2d 748, 751.
25. Robbery, a combination of the crime of assault with that of larceny, includes, as does
larceny, the element of asportation, and this taking away is a transaction which continues as
the perpetrator departs from the place where the property was seized. People v. Raucho,
supra, 8 Cal.App.2d 655, 47 P.2d 1108, 1112; People v. Melendrez, 25 Cal.App.2d 490, 77
P.2d 870, 872; People v. Wallace, 36 Cal.App.2d 1, 97 P.2d 256, 258.
26. The perpetration of the crime of robbery is not completed the moment the stolen
property is in the possession of the robber.
not completed the moment the stolen property is in the possession of the robber. People v.
Wallace, supra, 36 Cal.App.2d 1, 97 P.2d 256, 257; People v. Perhab, 92 Cal.App.2d 430,
206 P.2d 1133, 1135, 1137; People v. Melendrez, supra, 25 Cal.App.2d 490, 77 P.2d 870,
872; People v. Raucho, supra, 8 Cal.App.2d 655, 47 P.2d 1108, 1112.
The escape of the robber with his ill-gotten gains by means of arms is as important to the
execution of the robbery as gaining possession of the property. People v. Wallace, supra, 36
Cal.App.2d 1, 97 P.2d 256, 257; People v. Perhab, supra, 92 Cal.App.2d 430, 206 P.2d 1133,
1135, 1137; People v. Melendrez, supra, 25 Cal. App.2d 490, 77 P.2d 870, 872. People v.
Nixon, supra, 33 Cal.2d 688, 203 P.2d 748, 751. See, also, People v. Boss, supra, 210 Cal.
245, 290 P. 881, 883.
27. Acts of taking victim of robbery from scene of crime in automobile for purpose of
removing him to a place where he could less easily raise an alarm and summon aid, are
committed in the perpetration of the robbery. People v. Raucho, supra, 8 Cal.App.2d 655, 47
P.2d 1108, 1112; People v. Kristy, supra, 4 Cal.2d 504, 50 P.2d 798-800, certiorari denied
297 U.S. 712, 56 S.Ct. 593, 80 L.Ed. 998; People v. Bean, 88 Cal.App.2d 34, 198 P.2d 379,
382-383. See, also, State v. Williams, 28 Nev. 395, 407, 82 P. 353.
In State v. Williams, supra, the homicide occurred at least two minutes after the robbery at
another place approximately two miles distant. 28 Nev. 395, 396, 82 P. 353. In holding that
the homicide was committed in the perpetration of the robbery, this court said:
It occurred as part of a continuous assault, lasting from the robbery to the shooting, and
apparently was done for the purpose of preventing detection. The court properly instructed the
jury that under the statute all murder committed in the perpetration of robbery is of the first
degree.
28. When the homicide is within the res gestae of the initial crime, and is an emanation
thereof, it is committed in the perpetration of that crime in the statutory sense.
sense. State v. Adams, 339 Mo. 926, 98 S.W.2d 632, 108 A.L.R. 838, 844; MacAvoy v.
State, 144 Neb. 827, 15 N.W.2d 45, 48, certiorari denied 323 U.S. 804, 65 S.Ct. 559, 89
L.Ed. 642; 40 C.J.S., Homicide, page 870, sec. 21, note 70.
29. The res gestae embraces not only the actual facts of the transaction and the
circumstances surrounding it, but the matters immediately antecedent to and having a direct
causal connection with it, as well as acts immediately following it and so closely connected
with it as to form in reality a part of the occurrence. People v. Bush, 56 Cal.App.2d 877, 133
P.2d 870, 873; 8 Cal.Jur., Criminal Law, pages 96-97, sec. 193, notes 2-5.
30. In this case, the murder was clearly within the res gestae of the robbery, because it was
so connected and associated with the robbery as to virtually and effectively become a part of
it. Under no possible theory can it be properly said that the murder was committed as an
independent act disassociated from the robbery. It is certain, therefore, that the murder was
committed in the perpetration of the robbery, within the true intent and fair meaning of the
statute, even though we assume that the bag of money was the only personal property taken in
the robbery and that appellant secured possession of it at the service station. But it is not
necessary that we so assume, because appellant's own testimony shows that appellant
probably did not secure possession, and that he certainly did not secure control, of the money,
until after he killed the attendant. Furthermore, appellant does not even claim that he acquired
control or secured possession of the attendant's watch, admittedly a part of the personal
property taken in the robbery, before he killed the attendant.
31. It makes no difference in this case whether appellant unintentionally killed the
deceased, as he claims, or whether the killing of deceased by appellant was intentional, as the
jury might well have found, because one who kills another in the perpetration or attempt to
perpetrate any arson, rape, robbery, or burglary, is guilty of murder in the first degree by force
of the statute {Sec.
(Sec. 10068, N.C.L.1943-1949 Supplement), regardless of any question whether the killing
was intentional or unintentional. State v. Gray, supra, 19 Nev. 212, 219-220, 8 P. 456; People
v. Denman, 179 Cal. 497, 177 P. 461; People v. Sameniego, 118 Cal.App. 165, 4 P.2d 809,
811, 5 P.2d 653; Commonwealth v. Almeida, 362 Pa. 596, 68 A.2d 595, 610; Rhea v. State,
63 Neb. 461, 480, 88 N.W. 789, 793-795; 40 C.J.S., Homicide, pages 868-869, sec. 21a, note
60.
32. Thus, it is seen that instruction 16, although not technically correct in all particulars,
and not approved in its entirety as a matter of law, was more favorable to appellant than
justified by law and not prejudicial to him.
33. Instructions 18, 20, 21 and 24, the giving of which were assigned as error, are not
discussed by appellant. Instead, he discusses instructions 9, 11, 17B(2), 26a and 31, the
giving of which were not assigned as error. Besides, the record discloses that the only
objection made in the trial court to the giving of any instruction was to instruction 24, which
objection was upon the ground only that instruction 24 was covered by other
instructionsthat instruction 23 covered the law of the case. As that objection is wholly
without merit, and as the record also discloses that in reply to a question by the court, Do
counsel have any objections to any of the instructions? appellant's counsel answered No,
further comment is unnecessary.
Appellant next contends that the court erred in admitting in evidence two written
confessions obtained the day of his arrest by investigating officers, because:
1. There was no independent evidence of the corpus delicti;
2. The confessions were not voluntary;
3. The witnesses, whose testimony as to the voluntariness of the confessions was heard by
the court in the absence of the jury, were not re-examined in the presence of the jury;
4. The confessions were obtained before appellant was taken before a committing
magistrate; and 5.
5. Appellant's rights under the fourteenth amendment were violated.
34. As to the first ground, the term corpus delicti, as applied to homicide cases, involves
two elements: first, the fact of death; and, second, the criminal agency of another person as to
the cause of death. State v. Crank, 105 Utah 332, 142 P.2d 178, 170 A.L.R. 542, 549; State v.
Jeannet, 183 Or. 354, 192 P.2d 983, 984; 41 C.J.S., Homicide, page 5, sec. 312, notes 1-2;
Underhill's Criminal Evidence, 4th ed., sec. 35, note 5.
By the great weight of authority, the criminal agency of the accused, or, as sometimes
stated, the identity of the perpetrator of the homicide, is not an element of the corpus delicti,
notwithstanding a contrary statement in Wharton's Criminal Evidence, quoted with approval
in State v. Teeter, 65 Nev. 584, 200 P.2d 657, 674. Ausmus v. People, 47 Colo. 167, 107 P.
204, 19 Ann.Cas. 491, 494; Lowe v. People, 76 Colo. 603, 234 P. 169, 173; Antone v. State,
49 Ariz. 168, 65 P.2d 646, 651; People v. Meyers, 7 Cal.App.2d 351, 46 P.2d 282, 283-284;
People v. Leary, 28 Cal. 740, 172 P.2d 41, 44; State v. Willson, 116 Or. 615, 241 P. 843,
845-846; State v. Henderson, 182 Or. 147, 184 P.2d 392, 411, 186 P.2d 519; People v.
Manske, 399 Ill. 176, 77 N.E.2d 164, 168; State v. Fitzsimmons, 338 Mo. 230, 89 S.W.2d
670, 673; Bickett v. Commonwealth, 294 Ky. 671, 172 S.W.2d 439, 440; Murray v. United
States, 53 App.D.C. 119, 288 F. 1008, 1015-1016, certiorari denied 262 U.S. 757, 43 S.Ct.
703, 67 L.Ed. 1218; Underhill's Criminal Evidence, 4th ed., sec. 545, note 2; sec. 35, note 6;
Nichols Applied Evidence, Murder, vol. 4, pages 3282-3283, sec. 364, notes 12-14; 26
Am.Jur., Homicide, page 475, sec. 461, notes 18-19, 1-4; 41 C.J.S., Homicide, page 6, sec.
312, notes 3-5; Wigmore on Evidence, 3d ed., vol. 7, page 402, sec. 2072, note 4.
As said in Wigmore on Evidence, supra: A third view, indeed, too absurd to be argued
with, has occasionally been advanced, at least by counsel, namely, that the corpus delicti'
includes the third element also, i.e. the accused's identity or agency as the criminal. By this
view, the terms corpus delicti' would be synonymous with the whole of the charge, and the
rule would require that the whole be evidenced in all three elements independently of the
confession, which would be absurd."
with the whole of the charge, and the rule would require that the whole be evidenced in all
three elements independently of the confession, which would be absurd.
35. The evidence, in addition to that briefly stated in discussing the preceding assignment
of error, shows that there were two furrows, approximately two inches wide and one-half inch
deep, extending from the highway to the victim's body, between which furrows there were
three large blood spots, one situate five feet from the edge of the highway, the second two
feet four inches distant from the first, and the third twenty-one feet distant from the second
and eighteen feet distant from the victim's chest.
Although no witness so testified, it is certain that the furrows could only have been made
by the victim's heels, as his body was being dragged from the highway to the place of
concealment, and that the blood spots could only have been made when the perpetrator of the
crime placed the body on the ground while resting enroute.
Such evidence, entirely independent of the confessions and of appellant's oral testimony,
clearly established the fact of death and that such death resulted, not from accident or suicide,
but from the criminal agency of another person. Thus, both elements of the corpus delicti
were provednot beyond a reasonable doubt, but beyond all possible doubt.
36. As to the second ground, the record shows that the court, in the absence of the jury at
the request of appellant's counsel, heard the testimony of appellant that, before confessing, he
was furnished inducements, threatened with injury, and given promises, and the contradictory
testimony of the other witnesses present when the confessions were made, and ruled that the
confessions were voluntarily given. In doing so, it said: The Court concludes from the
evidence that there were no promises, inducements, or other circumstances which would
show that the confessions were involuntary.
After the jury were recalled, the confessions were admitted in evidence, and, without
objection on the part of appellant's counsel but with his express consent, entered in the
record, the testimony taken in the absence of the jury, to determine the admissibility of
the confessions, was read to the jury; and the court submitted the issue of voluntariness
to the jury by instruction 26a, which read: "You are instructed that, before you can
consider any alleged confession of the Defendant as evidence against him you must
believe that such alleged confession was freely and voluntarily made, and was not the
result of inducement, coercion, intimidation, threats, violence, promises or duress
exercised by any officer of the law, or any other person, upon the defendant.
admitted in evidence, and, without objection on the part of appellant's counsel but with his
express consent, entered in the record, the testimony taken in the absence of the jury, to
determine the admissibility of the confessions, was read to the jury; and the court submitted
the issue of voluntariness to the jury by instruction 26a, which read: You are instructed that,
before you can consider any alleged confession of the Defendant as evidence against him you
must believe that such alleged confession was freely and voluntarily made, and was not the
result of inducement, coercion, intimidation, threats, violence, promises or duress exercised
by any officer of the law, or any other person, upon the defendant. Unless you believe that
such alleged confession was freely and voluntarily made by the Defendant, with knowledge
of its meaning, then you must disregard such confession entirely from your consideration.
Whether the voluntariness of the confessions admitted in evidence in this case by the court
is a question that should have been submitted to the jury for determination, is not before us
and cannot be decided. That question is one about which the courts have not been able to
agree. State v. Compo, 108 N.J.L. 499, 158 A. 541, 85 A.L.R. 866, and note; State v. Crank,
105 Utah 332, 142 P.2d 178, 170 A.L.R. 542, and note. Although discussed in State v.
Williams, 31 Nev. 360, 102 P. 974, 979, the question was not raised in that case, and the
conclusion there reached, aside from being obiter dictum, is too uncertain to be understood.
See notes 85 A.L.R. 871 and 904. In no event, however, is appellant in any position to
complain, because, as said in the Williams case:
If the defendant's contention that it is the duty of the court to determine whether the
confession was voluntary be conceded, and the court found that there was evidence to
indicate that it was voluntary, although the testimony was conflicting, and thereupon allowed
proof of the confession to go to the jury, the submission to the jury of the conflicting
evidence as to whether the confession was voluntary would be beneficial rather than
prejudicial to the defendant, and consequently no ground for reversal."
of the confession to go to the jury, the submission to the jury of the conflicting evidence as to
whether the confession was voluntary would be beneficial rather than prejudicial to the
defendant, and consequently no ground for reversal.
37. Moreover, even if the court erred in admitting in evidence the written confessions,
appellant was not prejudiced thereby, for the reason that he became a witness in his own
behalf, and testified substantially in accordance with his confessions. State v. Johnny, 29 Nev.
203, 219, 87 P. 3; State v. Williams, supra, 31 Nev. 360, 367, 102 P. 974; State v. Urie, 35
Nev. 268, 274, 129 P. 305; State v. Williams, 67 Nev. 373, 219 P.2d 184, 189.
38. As to the third ground, the record shows that the procedure adopted by the court with
reference to the matter was not only consented to by appellant's counsel, but was in part
suggested by him, and that, without objection, and without request that any witness be again
examined, he actually assisted in reading to the jury the testimony as to the voluntariness of
the confessions, which, at his request, had been taken before the court in the absence of the
jury. Nothing more need be said.
39. As to the fourth ground, the so-called civilized standards rule for the guidance of
federal law enforcement officers and lower federal courts, which precludes the admission in
evidence of a confession when obtained before the defendant was taken before a magistrate,
pronounced in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, the case
so strongly relied upon by appellant, and later followed by the same court in subsequent
decisions, is not binding on this court, which, following the majority rule in the state courts,
has properly held that a voluntary confession is not rendered inadmissible because obtained
after defendant was taken into custody and prior to the time he was taken before a magistrate.
State v. Boudreau, 67 Nev. 36, 214 P.2d 135, 139-142; State v. Williams, 67 Nev. 373, 219
P.2d 184, 189, 190.
As to the fifth ground, appellant neither argues the matter nor cites any authorities. We
quote from the annotation in 93 L.Ed. 117:
Although the Fourteenth Amendment leaves a state free to adopt by statute or decision
such tests of the voluntariness of a confession of guilt as it may elect, whether or not they
conform to those applied in the Federal or in other state courts, and although, on a review of
state convictions, all those matters which are usually termed issues of fact are for conclusive
determination by a state court and not open for reconsideration by the Supreme Court of the
United States, the court is not precluded by the verdict of a jury, or by the finding of a court,
or both, from drawing a conclusion from uncontroverted happenings and determining
whether the circumstances under which the confession was made were such that its admission
in evidence amounts to denial of due process.
Where the evidence as to the method employed to obtain the confession is conflicting, the
Supreme Court will accept the determination of the triers of fact as to its voluntary character,
unless such determination is so lacking in support in the evidence that to give it effect would
work that fundamental unfairness which is at war with due process. (Italics supplied.)
40. As previously shown, both the court and the jury found that the confessions were freely
and voluntarily made. We have carefully read all of the testimony upon which such findings
were based, and upon which appellant claims that the confessions were obtained by
inducements, threats and promises. Although conflicting, in that appellant's version differs
from that of the other witnesses, the testimony clearly shows that, preliminarily to their
introduction in evidence, the confessions were made freely and voluntarily, not the result of
torture, physical or psychological, and without inducements, threats, or the use of coercion
or intimidation, and without promise of reward or immunity from punishment, or other
promises.
41. Appellant next contends that the court committed prejudicial error in allowing Dr. Otto
L. Gericke, superintendent and medical director of the Patton State Hospital, to testify against
appellant as to treatment of and statements made by appellant, which statements were not
only privileged communications between physician and patient but violated appellant's
constitutional right of immunity from self-incrimination.
As no objections on these grounds were made to the questions which elicited the evidence
now claimed to have been improper and prejudicial, its admissibility will not be considered.
State v. Lawrence, supra, 28 Nev. 440, 449, 82 P. 614; State v. Mangana, supra, 33 Nev. 511,
522, 112 P. 693; State v. Clarke, supra, 48 Nev. 134, 140, 228 P. 582, 583; State v. Jukich,
supra, 49 Nev. 217, 236, 242 P. 590.
Appellant next contends that the court committed prejudicial error in allowing Dr. Philip
Work to testify as to statements made by appellant to him.
In effect, appellant's objections are: (1) that the testimony was privileged, in that the
relation of physician and patient existed; (2) that it constituted a violation of appellant's
constitutional right not to be a witness against himself; (3) that it violated the rule of the
veterans' administration that no information can be taken from a defendant without his
written consent; and (4) that it is improper rebuttal testimony.
As to the first objection, appellant relies upon that portion of the statute which reads: A
licensed physician or surgeon shall not, without the consent of his patient, be examined as a
witness as to any information acquired in attending the patient, which was necessary to enable
him to prescribe or act for the patient; Sec. 8974, N.C.L., as amended, Stats.1949, 525,
1943-1949, N.C.L. Supplement.
42. There are several reasons why this statute has no application whatever to this case,
among which are the following: (a) Dr. Work was not a licensed physician or surgeon.
The words, licensed physician or surgeon, found in this section, were clearly intended
to apply to a person not prohibited by the statute "regulating the practice of medicine,
surgery and obstetrics in the State of Nevada," secs.
this section, were clearly intended to apply to a person not prohibited by the statute
regulating the practice of medicine, surgery and obstetrics in the State of Nevada, secs.
4090-4107, N.C.L. from practicing, because it is only such a person who can legally
prescribe or act for the patient. See State ex rel. Weyerhorst v. Lee, 28 Nev. 380, 393, 82 P.
229; Wiel v. Cowles, 45 Hun, N.Y. 307, 308; Brown v. Elwell, 60 N.Y. 249, 251;
Commonwealth v. Cohen, 142 Pa.Super. 199, 15 A.2d 730, 732.
43. As Dr. Work was admittedly not a licensed physician or surgeon in this state when
he examined appellant and received the information about which he later testified, such
information was not privileged. Wiel v. Cowles, supra, 45 Hun, N.Y. 307, 308;
Chamberlayne Trial Evidence, 2d ed., sec. 284, pages 257-258, note 41; 70 C.J., Witnesses,
page 443, sec. 592, note 17.
(b) The relation of physician and patient did not exist.
44. In order for a physician to be incompetent under this statute, the relation of physician
and patient must have existed between him and the person as to whose statements, symptoms,
or conditions he is called to testify, at the time when he acquired the information which he is
requested to disclose. 70 C.J., Witnesses, page 440, sec. 590, note 88.
45. No such relation existed in this case, because Dr. Work was sent by the district
attorney solely for the purpose of examining appellant in order to report upon his sanity.
People v. Sliney, 137 N.Y. 570, 33 N.E. 150, 154, 10 N.Y.Cr.R. 303; 70 C.J., Witnesses,
page 441, sec. 590, note 91. See, also, Simecek v. State, 243 Wis. 439, 10 N.W.2d 161, 165.
(c) The information was not acquired, in attending a patient, which was necessary to
enable the physician to prescribe or act for the patient.
46. The prohibition against a physician testifying exists only as to information acquired, in
attending the patient, which was necessary to enable the physician to prescribe or act for the
patient. Skidmore v. State, 59 Nev. 320, 327, 92 P.2d 979.
No professional relation precluding a disclosure of information arises where a physician
employed for that purpose alone makes an examination of a person charged with crime,
in order to pass on his sanity, as in this case, and not for diagnosis and treatment.
information arises where a physician employed for that purpose alone makes an examination
of a person charged with crime, in order to pass on his sanity, as in this case, and not for
diagnosis and treatment. Skidmore v. State, supra, 59 Nev. 320, 327-328, 92 P.2d 979; 58
Am.Jur., Witnesses, page 239, sec. 418; 70 C.J., Witnesses, page 441, sec. 590, note 91.
47. As to the second objection, it has already been shown that the relation of physician and
patient, as contemplated by the statute, did not exist, for which reason it is clear that appellant
was not compelled to furnish evidence against himself by the testimony of Dr. Work. People
v. Austin, 199 N.Y. 446, 93 N.E. 57, 59.
And where, as in this case, insanity is interposed as a defense, an examination of accused
by an expert medical witness, for the purpose of determining his mental condition, consented
to by the accused, and the admission in evidence of the expert's findings with respect thereto,
does not violate the constitutional privilege of accused not to be a witness against himself.
State v. Petty, 32 Nev. 384, 387-391, 108 P. 934, Ann.Cas. 1912D, 223; People v. Krauser,
315 Ill. 485, 146 N.E. 593, 598-601; State v. Nelson, 162 Or. 430, 92 P.2d 182, 189; 22
C.J.S., Criminal Law, page 998, sec. 651, notes 26-28.
48. The third and fourth objections are not even mentioned in appellant's briefs, for which
reason it must be assumed that no reliance is placed upon them and that they are waived.
State v. Urie, supra, 35 Nev. 268, 275, 129 P. 305.
49. Appellant next contends that the court committed prejudicial error in allowing the jury
to separate.
The statute governing the matter reads: The jurors sworn to try a criminal action may, at
any time before the submission of the case to the jury, in the discretion of the court, be
permitted to separate or be kept in charge of a proper officer. Sec. 10990, N.C.L.1929.
Under this statute, the jury are permitted to separate at adjournments and recesses until the
case is submitted to them for decision, unless the court, in its discretion, orders them kept
together in charge of an officer during the progress of the trial.
to them for decision, unless the court, in its discretion, orders them kept together in charge of
an officer during the progress of the trial. People v. Witt, 170 Cal. 104, 148 P. 928, 930;
People v. Ebanks, 117 Cal. 652, 49 P. 1049, 40 L.R.A. 269, 275; People v. Erno, 195 Cal.
272, 232 P. 710, 715; State v. Williams, 166 S.C. 63, 164 S.E. 415, 421; Horn v. State, 13
Okl.Cr. 354, 164 P. 683, 685; 8 Cal.Jur., Criminal Law, page 383, sec. 414, notes 4-6.
50. However, it is not necessary to rely upon the statute, because it is admitted in this case
that appellant's counsel actually consented to the separation of the jury, thus waiving all
objections, if any he had. State v. McMahon, 17 Nev. 365, 369-373, 30 P. 1000.
Appellant next contends that the court erred in denying his motion for a new trial, because;
1. Of error in failing to instruct as to other crimes;
2. Of error in deciding questions of law arising during the trial;
3. Of misconduct on part of jury in reaching a verdict in fifteen minutes;
4. The verdict is contrary to the law and to the evidence;
5. The evidence was insufficient to justify the jury in finding appellant guilty of murder in
the first degree; and
6. Of newly discovered evidence.
The first, second, fourth and fifth grounds have already been fully considered and found to
be without merit. That conclusion has not been changed by a careful consideration of
appellant's argument on his motion for new trial.
51. As to the third ground, it is admitted that the jury received the case at 12:30 p.m., and
rendered the verdict at 2:25 p.m., on the same day, during which period the jury were taken
out to lunch. So far as one can tell from the record, the jury may have considered the evidence
during the lunch period and may have deliberated upon it in the jury room, before going to
and after returning from lunch, for more than fifteen minutes.
deliberated upon it in the jury room, before going to and after returning from lunch, for more
than fifteen minutes. But, assuming that the consideration and deliberation after submission
consumed only fifteen minutes, that does not even indicate misconduct on the part of the jury
in rendering the verdict, or error of the court in receiving it.
52. In view of the evidence presented, which clearly established the guilt of appellant
beyond all possible doubt, and fully justified the punishment fixed, the jury were only
reasonably expeditious in rendering the verdict. Commonwealth v. Clark, 292 Mass. 409, 198
N.E. 641, 646; Smith v. State, 40 Tex.Cr. 391, 50 S.W. 938, 939; State v. Chandler, 126 S.C.
149, 119 S.E. 774, 776.
53. As to the sixth ground, the evidence claimed to be newly discovered relates simply to
the mental and physical condition of appellant long prior to the murder. If at all material, it
could only be cumulative, and was in fact known to appellant and his counsel before the trial.
The refusal of the court to grant a new trial upon the ground that such evidence was newly
discovered was clearly right. State v. Randolph, 49 Nev. 241, 248, 242 P. 697.
Before concluding this opinion, it is proper to state that L. O. Hawkins, one of appellant's
counsel in this court, did not represent, nor assist in representing, appellant in the trial court.
A most careful consideration of the entire record fails to disclose any prejudicial error, for
which reason the judgment and the order appealed from 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 said judgment.
Eather, J., being ill and unable to participate in this opinion, the Governor designated Hon.
Wm. McKnight, Judge of the Second Judicial District Court, to sit in his place.
On Petition for Rehearing
November 16, 1950.
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 May 14, 1951 and on January 28, 1952. (See also 68
Nev. for habeas corpus proceedings.)
____________
67 Nev. 541, 541 (1950) Walker v. Burkham
DAVID C. WALKER, by and Through his Guardian ad litem, CONRAD H. WALKER,
Appellant, v. BERT BURKHAM, Respondent.
No. 3525
August 21, 1950. 222 P.2d 205.
David C. Walker, by and through his guardian ad litem, Conrad H. Walker, brought action
against Bert Burkham to recover damages for alleged assault and assault and battery. The
Second Judicial District Court of Washoe County, Merwyn H. Brown, Judge, presiding,
rendered a judgment for the defendant and entered an order denying plaintiff's motion for new
trial, and the plaintiff appealed. The Supreme Court, Badt and Eather, JJ., held that admission
of certain evidence was not error, that certain instruction was not erroneous, and that giving
of instruction that for jury to find for plaintiff it must appear that injury was the direct
consequence of defendant's act, was reversible error under the evidence, and that certain point
not raised by plaintiff was not ground for reversal.
Judgment and order reversed.
1. Assault and Battery.
In action by minor against employee at warehouse to recover damages for alleged assault and assault and
battery, wherein employee relied on defense that he was protecting his employer's property, admission of
evidence concerning alleged prior intrusions and trespasses on warehouse property by minor was
properly admitted on issue whether employee used excessive force.
properly admitted on issue whether employee used excessive force.
2. Assault and Battery.
battery, wherein employee relied on defense that he was protecting his employer's property, instruction that
one has right to defend his property against trespass or intrusion and that if jury found from a
preponderance of the evidence that minor was a trespasser or intruder and that employee reasonally
believed that his acts would do no more than create apprehension in mind of minor and that while under
such apprehension minor fell and injured himself in running from employee, employee would not be liable,
was not erroneous.
3. Appeal and Error; Assault and Battery.
battery wherein employee relied on defense that he was protecting his employer's property, giving of
instruction that for jury to find for minor it must appear that injury was direct consequence of act of
employee, was reversible error, where jury had right to find under evidence that employee's pursuit of
minor when minor was off of and fleeing from warehouse property, had no relation to any attempt to
prevent or terminate a trespass or intrusion and that the pursuit was therefore wrongful.
Where appellant did not raise question of sufficiency of answer of respondent to justify introduction of
certain evidence of respondent, so that respondent had no opportunity to be heard on the point, alleged fact
that answer was insufficient to justify introduction of such evidence was not ground for reversal.
N.C.L.1931-1941 Supp., secs. 9385.93, 9385.94.
Royal A. Stewart, of Reno, for Appellant.
Kearney & Adams, of Reno, for Respondent.
OPINION
On the 1st day of August, 1947, counsel for the plaintiff, in the action in the court below,
filed and served plaintiff's notice of appeal to this court from the judgment rendered and
entered on the certain verdict on the 3d day of February, 1947, in the Second judicial district
court of the State of Nevada, in and for the county of Washoe, in favor of the defendant
and against the plaintiff; and, also, that the plaintiff has appealed from the order denying
plaintiff's motion for a new trial, made and entered in the minutes of said district court on
the 31st day of July, 1947.
district court of the State of Nevada, in and for the county of Washoe, in favor of the
defendant and against the plaintiff; and, also, that the plaintiff has appealed from the order
denying plaintiff's motion for a new trial, made and entered in the minutes of said district
court on the 31st day of July, 1947.
In appellant's Statement of Facts in appellant's opening brief, under the caption The
Plaintiff, appellant's counsel has, in narrative form, detailed quite fully a summary of the
testimony, and, in connection therewith, has referred to numerous places in the transcript of
the testimony, in support of such summary (see page 1, line 18 to and including page 3, line
1, of appellant's opening brief).
Under the caption The Defendant, such summary by counsel for appellant is on page 3,
line 3, to and including page 4, line 3.
Such summary of the testimony of the plaintiff and of the defendant is as follows:
The Plaintiff
On September 15, 1943, the plaintiff, David C. Walker, was slightly over fourteen years
of age, having been born on August 17, 1929, and he was at that time living with his mother
and brothers at 229 Winter Street in Reno, Nevada. (Trans. p. 191). As indicated by the
diagram, (Exhibit B), the street runs North and South and the plaintiff's residence was on the
West side of the street. Immediately North of the residence, was a vacant lot where the
plaintiff had been accustomed to playing, and North of that was a warehouse building
belonging to the Consolidated Warehouse Company. There were also warehouse buildings
across the street.
The plaintiff had returned from school about 4:00 o'clock in the afternoon of September
15, 1943, and had brought a friend with him. (Trans. p. 194). The boys had erected a small
tent on the lot adjoining their residence where they habitually played, and at the time in
question, other boys were playing ball in the street in front of the residence, vacant lot and
warehouse buildings.
front of the residence, vacant lot and warehouse buildings. (Trans. p. 196). The plaintiff had
tossed a small radio tube thoughtlessly into the street and immediately afterwards, the
defendant had appeared around a corner of the warehouse building at the point marked C' on
the diagram. The defendant walked toward and past the plaintiff, telling him to pick up the
parts of the tube in the street, which he did. (Trans. p. 197). The defendant appeared to the
plaintiff to be very angry and walked within ten or fifteen feet of him and on over to the
plaintiff's house. (Trans. p. 197.) The plaintiff then went over and picked up the portions of
the radio tube from the street and was standing in the street at the point marked D' on the
diagram, when the defendant, returning from the house angrily started toward the plaintiff
saying that he wanted to talk to him. The plaintiff became frightened and started to run in a
Northerly direction on Winter Street. (Trans. p. 198.) The defendant pursued the plaintiff and
caught up with him and grabbed him by the back of his shirt swinging him around at a point
in the street opposite the warehouse building located on the West side of the street. This
scuffle resulted in the breaking of plaintiff's glasses. The plaintiff finally broke away and ran
back towards his own house. (Trans. p. 198.) As he ran down the sidewalk in a southerly
direction onto his own property, the defendant still pursuing him, tripped him causing him to
fall on his left arm. (Trans. pp. 199-200.) The police were subsequently summoned and he
was taken to a hospital where his arm was set several times and where he remained for a total
of forty-two days. (Trans. pp. 201, 202.) The defendant had not attempted to help him or do
anything further but that (he) had merely walked away after he was injured. (Trans. p. 202.)
The Defendant
The defendant's testimony was to the effect that he had looked to see who had thrown the
glass and that the only thing he could see was the plaintiff. That he asked the plaintiff if he
had thrown the glass to which the plaintiff had answered 'Yes.' {Trans. pp.
the plaintiff if he had thrown the glass to which the plaintiff had answered Yes.' (Trans. pp.
259, 260.) That he was going over to see the mother of the plaintiff and that the plaintiff
proceeded to clean the glass up. (Trans. pp. 260, 261.) That failing to find the mother of the
plaintiff at home, he had retraced his steps and called to the plaintiff that he, the defendant,
wanted to talk to him. That plaintiff had stopped and he had walked up to him, standing face
to face and told him that these damaging actions in breaking glass in the street would have to
stop. (Trans. p. 262.) The plaintiff just stood there backing away just a step or two and that
when he, the defendant, mentioned to the plaintiff that he would have to talk to his mother
regarding his behavior again, the plaintiff wheeled and started to run. (Trans. p. 262.) That the
defendant ran after the plaintiff and caught up with him grabbing him by the back of the shirt
in the door of the warehouse. (Trans. p. 262.) That he immediately released the plaintiff and
after talking to him a while again, the plaintiff turned and ran again, this time in the general
direction of his, the plaintiff's house. (Trans. pp. 263-265.) The defendant again pursued the
plaintiff and was about six feet behind him when the plaintiff tripped and fell and that the
defendant's momentum carried him over the plaintiff. (Trans. p. 287.) On cross-examination,
the defendant refused to deny that he had previously testified that when the plaintiff got to
the front of the building, and found he was not going to get in, he stopped and humped up so I
would go by him and he would double back.' (Trans. pp. 281, 282.) (Thus negativing the idea
that the plaintiff was on the Consolidated Warehouse property at all during the entire
episode).
Likewise, it appears only fair to present herein respondent's statement of facts in
respondent's answering brief, page 1, line 10, to and including page 5, line 1:
For the purpose of clarity, we find it necessary to make certain corrections and additions
to the appellant's summaries of the testimony of the plaintiff and the defendant.
defendant. Unless otherwise specified in this brief, where we refer to the appellant we mean
the boy, David Walker.
The statement by appellant as to respondent's testimony avoids any statement as to the
surrounding circumstances and the background of the incident. Since the appeal is based
primarily on the admissibility of evidence concerning these matters, we respectfully submit
they should be referred to in the statement of facts.
The evidence shows that for some time prior and continuing to the time of the incident,
complained of, appellant and other boys had engaged in destructive mischief on the premises
of the Consolidated Warehouse Company and had constantly trespassed thereon. (Trans. 244,
Folio 730; Trans. 245, Folio 733-734-735; Trans. 258, Folio 773; Trans. 273, Folio 818;
Trans. 278, Folio 833-834; Trans. 289, Folio 865; Trans. 294, Folio 880-881; Trans. 299,
Folio 895, 896; Trans. 301, Folio 903; Trans. 304, Folio 911; Trans. 305, Folio 915; Trans.
309, Folio 926, 927.)
On the day in question, in order to avoid talking with the respondent, appellant was trying
to run into the same warehouse into which he had gone several times before. On several
previous occasions, he had refused to leave, although requested to do so by the respondent
and other employees. (Trans. 244, Folio 730; Trans. 250, Folio 748, 749; Trans. 254, Folio
760; Trans. 298, Folio 893; Trans. 299, Folio 896, 897; Trans. 301, Folio 902.)
Appellant had on previous occasions gone across the street and south-east from that
warehouse and climbed up on other warehouse buildings of the company by means of the
wall adjoining the Devincenzi property. (Trans. 254, Folio 760; Trans. 289, Folio 867.)
The respondent had talked to the appellant on various occasions in a friendly manner,
offering no violence for the continued trespasses, but, although requested not to, the appellant
persisted in his trespasses. (Trans. 250, Folio 748, 749; Trans. 253, Folio 757-9; Trans. 254,
Folio 761; Trans.
Folio 761; Trans. 255 Folio 765; Trans. 256, Folio 766-7; Trans. 289 Folio 867; Trans. 293,
Folio 879; Trans. 294, Folio 880, 881; Trans. 298, Folio 894; Trans. 299, Folio 895, 896;
Trans. 300, Folio 898; Trans. 305, Folio 915; Trans. 306, Folio 918; Trans. 307, Folio 920.)
The police had been called on several occasions without any improvement in appellant's
conduct. (Trans. 257, Folio 768, 769; Trans. 258, Folio 772.)
The respondent was an employee of the Consolidated Warehouse Company and
responsible for the buildings and their contents. (Trans. 241, Folio 721; Trans. 302, Folio
906.) Respondent testified that at the time of the incident in question, he intended to talk
further with the appellant (Trans. 262, Folio 785; and see appellant's testimony, Trans. 198,
Folio 592) and if the appellant would not listen to reason' the respondent, who was then a
deputy sheriff, was going to take him to the police station. (Trans. 263, Folio 785; Trans. 268,
Folio 803.)
On the day in question, appellant, who was on a vacant lot belonging to respondent's
employer, threw glass into the street, the glass landing at respondent's feet. The respondent
directed appellant to pick up the glass, which he did. (Trans. 156-7, Folio 780-781.)
Respondent then walked near to, and past appellant to see if the latter's mother was at home.
She was not, so respondent walked over to appellant and said he wanted to talk to him.
(Trans. 262, Folio 785; Trans. 198, Folio 593.) Whereupon appellant ran to the open door of
the warehouse. Respondent ran after him and caught him as he was entering. (Trans. 262,
Folio 785.) Respondent made no attempt to harm appellant, but released him and attempted to
talk to him. (Trans. 263, Folio 787.) When told that if his behavior did not improve
respondent would take him to the police station, appellant again turned and ran off. (Trans.
263, Folio 789.) Respondent then gave chase to prevent appellant from circling onto another
part of the premises, as he had done in the past, and to take him to the police station, if Mrs.
station, if Mrs. Walker was not at home. (Trans. 268, Folio 803.)
It appears from the evidence that the appellant fell in a narrow area between a bushy tree
and a fence with a depression between the fence and sidewalk. Gravel had been placed on the
area nearby the Walker's home. (Trans. 292, Folio 876; Trans. 142, Folio 425; Trans. 143,
Folio 429; Trans. 144, Folio 430-31). Respondent testified that appellant, while running,
looked over his shoulder, stumbled, and fell. (Trans. 265, Folio 795; Trans. 266, Folio 797.)
Appellant testified that he was tripped. (Trans. 199, Folio 597.)
Not knowing that appellant was actually injured, respondent tried to help him up, but the
appellant resisting and crying, respondent again went to see if Mrs. Walker was home. She
was not, and respondent left. (Trans. 269, Folio 805.)
The appellant's arm was broken when he fell. It was promptly set and placed in a cast.
About two and a half weeks later the cast broke, resulting in the necessity to re-set the arm by
an open reduction. Appellant testified that he did not know when or how the arm was broken
the second time. (Trans. 205, Folio 614; Trans. 206, Folio 617; Trans. 216, Folio 646.) The
doctor did not know what caused the second break. (Trans. 177, Folio 529.) The respondent
showed that appellant was very active during the period between the breaks, engaging in
activities such as might cause a second break. (Trans. 245, Folio 733-4; Trans. 290, Folio
868; Trans. 307, Folio 920.)
Counsel for appellant states that both versions of the incident are quite similar.
(Appellant's Opening Brief, p. 1, 1. 15.) He further states that respondent refused to deny his
previous testimony relative to the incident. (Thus negativing the idea that the plaintiff was on
the Consolidated Warehouse property at all during the entire episode.)' We disagree with both
of these statements. However, inasmuch as this appeal is based solely upon questions of law
and not of fact, nor upon the credibility of witnesses, we do not deem it necessary to point
out in the respondent's 'Statement of Facts' where the discrepancies lie."
of witnesses, we do not deem it necessary to point out in the respondent's Statement of Facts'
where the discrepancies lie.
Predicated upon the facts which were, in the second amended complaint, alleged by the
plaintiff, David C. Walker, it appears that, briefly stated, the alleged first cause of action was
one for assault; that the minor, David C. Walker, was, on or about the 15th day of September,
1943, about fourteen years of age; that he resided with his family at 229 Winter Street, Reno,
Nevada; that he was then playing in front of his home at that place; that, at such time and
place, the defendant shouted at plaintiff, advanced upon him in an angry and threatening
manner with intent to commit a trespass upon the person of plaintiff; that defendant was a
large and virile man, fully capable of injuring plaintiff, and that plaintiff was placed in
immediate and mortal fear and apprehension of an immediate physical injury to his person at
the hands of defendant; that the plaintiff David C. Walker, ran away from the defendant, and
that defendant wrongfully pursued the plaintiff, and ran after the plaintiff, to the fright and
terror of the plaintiff, David C. Walker; and it further appeared that, solely as a result of the
wrongful action on the part of defendant, plaintiff fell upon the ground with great force and
violence, breaking his arm and breaking his eyeglasses; that a surgical operation upon
plaintiff's arm was necessary for the purpose of setting the bone in plaintiff's arm, and that
plaintiff was disabled and hospitalized for a long period of time, and that plaintiff suffered
great bodily pain, great distress of body and mind, suffering distress and discomfort to the
damage of plaintiff in the sum of six thousand five hundred ($6,500) dollars; and that by
reason of the premises aforesaid, plaintiff was and will be permanently injured, disabled,
scarred, and his body rendered unsightly, to the damage of plaintiff in the sum of five
thousand ($5,000) dollars.
The plaintiff's second cause of action against the defendant, Burkham, contained a
repetition of the allegations of the first cause of action, including the alleged damages,
and, in addition thereto, an allegation "that the defendant did then and there, wilfully and
unlawfully and maliciously beat, strike and trip the plaintiff David C.
defendant, Burkham, contained a repetition of the allegations of the first cause of action,
including the alleged damages, and, in addition thereto, an allegation that the defendant did
then and there, wilfully and unlawfully and maliciously beat, strike and trip the plaintiff
David C. Walker, and that the defendant did then and there at the time aforesaid lay violent
hands upon the person of the plaintiff David C. Walker, and that the defendant did then and
there at the time aforesaid break the plaintiff's eyeglasses and break the plaintiff's arm. By
such additional allegations the purpose was, of course, to state sufficient facts to constitute a
cause of action for assault and battery.
The defendant's answer to the amended complaint was demurred to by plaintiff, and a
motion to strike granted on behalf of plaintiff, for the reasons that certain of the allegations of
the defendant's answer contained alleged facts as having occurred at some time prior to or
previous to the occurrences of September 15, 1943, and particularly during the three weeks
immediately preceding said date.
Necessarily, the defendant, in formulating, serving and filing his second amended answer,
August 13, 1946, obviously confined the allegations of his fourth affirmative defense therein
to the time thereof as being on or about September 15, 1943. In that connection, the
defendant, on the third and fourth pages of said second amended answer, alleged:
1. That on or about September 15, 1943, the plaintiff was committing depredations and
trespassing upon the property of Consolidated Warehouse Company, a corporation, on Winter
Street, Reno, Nevada; that among defendant's duties he is charged with the responsibility for
the safekeeping and protection of said property which consists of a mill, elevator, and
warehouse in which there is situated equipment, goods, wares and merchandise; that
plaintiff's trespasses and depredations upon said property were continuous down to and
including September 15, 1943; that said depredations and trespasses were without the
permission of said Company or defendant; that said depredations consisted of disturbing
and tearing down piles of goods, wares, and merchandise stacked in said warehouse;
smoking and leaving burning cigarettes near inflammable material in said warehouse;
breaking windows in said buildings, and destroying sacks containing grain and feedstuffs;
that immediately prior to the time when plaintiff ran away from defendant as hereinabove
admitted, the defendant warned plaintiff to desist from such continuing and continued
depredations and trespasses upon said property.
including September 15, 1943; that said depredations and trespasses were without the
permission of said Company or defendant; that said depredations consisted of disturbing and
tearing down piles of goods, wares, and merchandise stacked in said warehouse; smoking and
leaving burning cigarettes near inflammable material in said warehouse; breaking windows in
said buildings, and destroying sacks containing grain and feedstuffs; that immediately prior to
the time when plaintiff ran away from defendant as hereinabove admitted, the defendant
warned plaintiff to desist from such continuing and continued depredations and trespasses
upon said property.
2. That the plaintiff scoffed at defendant's admonitions and warnings to cease and desist
from further trespassing and used provocative and insulting language directed toward
defendant; that for the purpose of taking plaintiff into custody for the commission of
misdemeanors committed in defendant's presence, and to try to dissuade plaintiff from
continuing his continued trespassing as aforesaid, defendant proceeded toward plaintiff for
such purpose and plaintiff ran away from defendant, and while so running away plaintiff
stumbled and fell. And if the plaintiff was injured at said time his injury was the result of his
own conduct and an accident caused by his own carelessness in failing to look where he was
running. (Trans. p. 71, folio 21, to and including p. 72, folio 214.)
Subsequently, commencing on January 29, 1947, and continuing to and including February
1, 1947, the trial was had. When cross-examination was reached, many questions were
propounded by counsel for defendant, Burkham, eliciting facts, and seeking to have them
introduced, which were predicated upon acts, occurrences or conduct which transpired prior
to the actual facts and circumstances which took place as between David C. Walker, the
plaintiff, and Bert Burkham, the defendant, on or about September 15, 1943. This was
doubtless upon the theory that, as contended by the defendant's counsel, the plaintiff's
alleged mischievous acts, depredations, trespasses and conduct were frequent, numerous
and continuing, and that, in view of what amounted to various and repeated provocations,
considerable latitude should be permitted, upon the theory that same would not be
beyond the proper construction or interpretation of the phrase "on or about," and,
particularly, the word "about."
upon the theory that, as contended by the defendant's counsel, the plaintiff's alleged
mischievous acts, depredations, trespasses and conduct were frequent, numerous and
continuing, and that, in view of what amounted to various and repeated provocations,
considerable latitude should be permitted, upon the theory that same would not be beyond the
proper construction or interpretation of the phrase on or about, and, particularly, the word
about. Due to that view, which is quite understandable under the circumstances, the
defendant's counsel repeatedly, persistently and assiduously insisted, and often succeeded, in
having the plaintiff's objections overruled, and the alleged irrelevant testimony admitted.
Sometimes such evidence was allowed admission because of plaintiff not objecting until the
particular question had been asked and answered, and no motion made in order that same
might be stricken, so that the objection of plaintiff's counsel might have been entertained.
Much more frequently, however, facts or circumstances were allowed admission in the
record, apparently because of the theory that the term about was sufficiently elastic to
justify the overruling of the particular objection to the effect that the fact comprehended in the
testimony was irrelevant and immaterial.
Just as earnestly, diligently and ably, plaintiff's counsel most strongly and repeatedly
objected to permitting the admission of evidence which was not relevant to the actual facts
and circumstances which constituted the basis for the cause of action involved in the instant
case.
Undoubtedly, from having read fully the transcript of the testimony, it is clearly apparent
that many extrinsic items of evidence which did not enter into the issues properly constituting
the cause of action for assault, or assault and battery, were admitted, and, most likely, were
given effect by the jurors hearing the case. Consequently, appellant's counsel, doubtless, has
felt impelled to present to the court his assignment or specification of error No. I. Such
specification of error No. I is stated by appellant as follows: "The Court erred in improperly
admitting evidence prejudicial to the plaintiff over the objection of the plaintiff of alleged
provocative acts and conduct of the plaintiff prior to September 15, 1943."
appellant as follows: The Court erred in improperly admitting evidence prejudicial to the
plaintiff over the objection of the plaintiff of alleged provocative acts and conduct of the
plaintiff prior to September 15, 1943.
Mention has been made above of the phrase on or about. In 29 Words and Phrases,
Perm.Ed., p. 455, is the following:
The expression on or about,' in instruction, does not mean a variation of three or four
months. Render v. Commonwealth, 206 Ky. 1, 266 S.W. 914, 916.
The words on' or about' have a broader meaning than upon'; the words on' or upon'
signify closer contact. Commonwealth v. Lanzetti, 97 Pa.Super. 126.
Particularly significant is the clearly expressed limitation confining the phrase within a
very narrow scope, viz.:
An admission that a notice was served on or about' June 16, 1906, cannot be construed
as an admission that the notice was served June 15th or prior thereto. Hope v. Scranton &
Lehigh Coal Co., 120 App.Div. 595, 105 N.Y.S. 372, 378. (Italics supplied.)
The common understanding of the words on or about' when used in connection with a
definite point of time is, that they do not put the time at large, but indicate that it is stated
with approximate certainty. Parker v. State, 63 Ind.App. 671, 113 N.E. 763, 764. * * *
Finding that building was completed on or about October 26th' is sufficiently definite, in
view of record, admission that such was the date; on or about' meaning the day mentioned or
one in close proximity thereto; One or two days either before or after being implied. Boscus
v. Waldmann, 31 Cal.App. 245, 160 P. 180, 186. (Italics supplied.)
And in 29 Words and Phrases on page 457 is the following:
Where an information in a prosecution for murder alleged that on or about a certain time
the murder was committed, the words or about' should be treated as without meaning and as
surplusage, and hence on or about' August 11, 1882, should be construed to mean August
11, 1SS2, and was sufficiently definite.
August 11, 1882, and was sufficiently definite. State v. Harp, 31 Kan. 496, 3 P. 432, 433.
(Italics supplied.)
In certain cases, particularly when circumstantial evidence is involved, the pleader may not
at that time know with certainty the precise time in which an act may have occurred, and,
following the common form as to the phrase on or about, finds it convenient to employ
same. But in the instant case, in which the assault by Burkham upon the person of the boy,
David C. Walker, was involved, the parties, and all persons directly involved, knew, or soon
thereafter ascertained, that all of the facts constituting what was later determined to be the
cause of action actually occurred on the 15th day of September, 1943. And when all of the
parties knew such facts, it was proper for counsel for the plaintiff to insist, before opposing
counsel and the trial court, upon the following contended interpretation, to wit: I object to
the question again. It is irrelevant and immaterial unless limited to the time when the
occurrence in question arose on September 15, 1943, at or about five or six P.M. (See page 5
of appellant's reply brief.)
On the preceding page 3, to and including page 5, in appellant's reply brief, is the
following:
With reference to the contention that no objection was made to the introduction of
testimony of the alleged prior acts or, if made, such objection was general as opposed to a
specific objection which did not properly inform the Court or counsel as to the reasons for the
objection:
From the time of the commencement of the action, there had been a tenacious attempt on
the part of the respondent to plead and to bring into evidence matters and things which were
highly prejudicial to the plaintiff and which had no relation to the occurrences of September
15th, 1943:
(See Transcript Page 35Defendant's Answer)
That on September 15, 1943, and for more than a year prior thereto * * *'. (Italics
supplied.)
That for some time previous to September 15, 1943, and particularly during the three
weeks immediately preceding said date, Plaintiff, David C.
and particularly during the three weeks immediately preceding said date, Plaintiff, David C.
Walker, had repeatedly and with full knowledge of the wrongfulness of his acts, trespassed
without permission, authority or right * * *'. (Italics supplied.)
And also the following on Transcript Page 37:
That on several occasions shortly prior to said date and with full knowledge of the
wrongfulness of his acts, Plaintiff, David C. Walker, had committed misdemeanors in the
presence of Defendant and had maliciously and wilfully disturbed the peace and quiet of the
neighborhood * * *'.
The appellant had just as strenuously urged the elimination of those matters occurring
prior to September 15th, 1943:
(See Motion to StrikeTranscript Pages 42-43; Motion to Make More Definite and
Certain by requiring the defendant to allege the date of the last trespass previous to September
15th, 1943Transcript Page 44which Demurrer and Motion to Strike were granted by the
CourtTranscript Page 60.)
The Court therefore having ruled as a matter of pleading that the respondent could not
plead and allege matters and things which occurred prior to September 15th, 1943, the
respondent in his amended answer to plaintiff's second amended complaint pleaded that the
matters and things, which he had previously alleged occurred prior to September 15th,
occurred on or about September 15th, 1943.
The foregoing is set forth to show the actual situation as it existed at the time of the trial,
with respect to the propriety of the introduction in evidence of matters occurring sometime
prior to September 15, 1943, and being highly prejudicial in their nature to the plaintiff,
which resulted in the plaintiff being placed on the horns of the dilemma as to whether he
would aggressively defend himself against the charges leveled at him by his assailant and
which occurred as much as two years before, or whether he would continue to try his own
case and avoid being led down the intriguing path prepared by his assailant.
and avoid being led down the intriguing path prepared by his assailant.
The reason for requiring any objection to be specific in its nature is to allow opposing
counsel to know the precise point of the objection so that the question may either be reframed
or the proper foundation laid for the admissibility of the testimony.
Here certainly neither counsel nor the Court was in any way misled by the objections of
counsel for the appellant for the reason that the respondent had already attempted to plead the
very matters, the introduction of which counsel objected to, and the Court had already ruled
that as a matter of law that such matters could not be considered.
The appellant believes that the respondent's first objection then can be disposed of by an
examination of the objection made itself and the authorities cited by the respondent. The
objection as set forth on Page 6 of respondent's brief is as follows:
I object to the question again. It is irrelevant and immaterial unless limited to the time
when the occurrence in question arose on September 15, 1943, at or about five or six P.M.'
Much as we dislike unduly to extend this opinion, it seems conducive to a clear
understanding of such ruling as we shall make as to specification of error No. I, that further
detail is essential as to just what occurred before the court below as to the admission or
rejection of the many alleged provocative acts and conduct of the plaintiff prior to
September 15, 1943. On page 7, line 19, to and including page 9, line 5, of appellant's reply
brief, is the following:
The testimony from Page 244 to Page 254 of the transcript was all admitted over frequent
objections with the definite understanding so far as the Court and counsel for the appellant
was concerned that it was a mere continuation of the questioning on Transcript Page 243,
wherein the Court had already ruled that the witness might tell what occurred on or about'
September 15th, 1943, and had refused the request of the appellant to question the
witness on voir dire for the purpose of definitely determining the date of the occurrences
relative to which he was testifying.
15th, 1943, and had refused the request of the appellant to question the witness on voir dire
for the purpose of definitely determining the date of the occurrences relative to which he was
testifying. (Transcript Page 244.)
See for example the question on Transcript Page 245, Folio 733:
Q. Confining your statements to that period, on or about September 15, 1943, not after
September 15th, what were the plaintiff's actions?'
And the Court's statement on Transcript Page 246, Folio 737:
Court: You are still confining it to on or about September 15, 1943?'
And the statement of counsel on Transcript Page 249, Folio 744:
Mr. Adams: Your Honor, I have attempted to confine all of these remarks to on or about
September 15th, and I do not wish to preface each remark with that date.
The Court: So the record will be clear, this type of examination will be confined to on
or about September 15, 1943; is that correct, Mr. Adams?
Mr. Adams: That is correct, your Honor.
The Court: The objection is overruled.'
And on Transcript Page 249, Folio 746:
Q. (By Mr. Adams) Before inquiring further on that, I will ask you with reference to the
damage you testified to the buildings on the east side of the street, did you, prior to the
accident that the plaintiff spoke about, when he was injured, prior to that time, had you
spoken to David Walker relative to his activities up there?
Mr. Stewart: I object to the question on the ground it is irrelevant and immaterial.
The Court: The objection is overruled. It is confined to the same time?
Mr. Adams: Yes.'
Also, Mr. Adams' statement contained in Transcript on Page 251, Folio 750:
Mr. Adams: Q. You understand I am not asking for any instances that may have
happened a long time prior to this time? A. That is correct.
for any instances that may have happened a long time prior to this time? A. That is correct.
Q. And I am confining my question to that time. A. Close to that time.
Q. Yes, that is right, on or about September 15, 1943.
The Court: The objection is overruled.'
Some of the reasons which have prompted us to reach the conclusion that specification of
error No. I is well taken is that it appears to us unwise to permit numerous other prior facts
and circumstances, not relevant to the pleadings and the definite issues before the court, to be
admitted in evidence, thereby requiring the consideration of a large number of other matters
of fact and law which necessarily served to confuse the jury and probably to cause an unjust
result. A blanket characterization, in effect, termed as provocative acts or conduct,
including many different facts and circumstances, and at different times, and permitted to be
admitted upon cross-examination, without prior notice to plaintiff, prevented the plaintiff
from having a fair opportunity to meet such new issues and to be prepared to marshal his
evidence, and to present same. Furthermore, the allowance of such irrelevant evidence
constituted such a far departure from sound principle and practice as, necessarily, to have
opened the way to undue multiplication of issues, not conducive either to thorough
consideration of such extrinsic issues, nor to the confinement of such extraneous matters as
would reasonably contribute to sound judicial economy in the administration of justice. It
appears abundantly clear that specification of error No. I must be held well taken.
The second specification of error is that the trial court erred in giving instruction No. 15, to
the effect that it was proper for the defendant to put the plaintiff in immediate apprehension
of a harmful or offensive contact in excess of that which the defendant was lawfully entitled
to actually inflict, if they found that the plaintiff was a trespasser at the time set forth in the
complaint.
The respondent, as to certain of the instructions, contends that in the conference with the
trial judge and respective counsel, the evening before the trial was concluded, in which there
was extensive discussion as to the settlement of the proposed instructions, it was understood,
and perhaps agreed, that said instructions were satisfactory, apparently, to the respective
attorneys. Respondent's counsel have pointed out, as to certain instructions, particularly
instruction No. 22, that appellant's counsel suggested that the word direct, immediately
before the word consequence, be substituted instead of the words natural and probable,
clearly indicating that counsel for the appellant must reasonably be deemed to have agreed to
such instruction No. 22 as thus changed. On the other hand, appellant's counsel with equal
insistence, contends, in effect, that such negotiations, discussions, modifications, etc., as were
formulated were, necessarily, tentative; that, notwithstanding that the presiding trial judge
has, in writing, stated, in effect, that he believed the respective counsel had, on said occasion,
indicated that the instructions were agreed upon and settled on said evening, that this court
should, as we view the matter, take into consideration the following statement made by the
trial court just prior to the trial judge's going into court, and which is as follows: If you have
any objection to the instructions, you will have the right to place the objection in the record
after the matter has been submitted to the jury. Counsel on both sides, after such statement
was made by the court, availed themselves, respectively, of such right, and such instructions
were filed.
And it is clearly the practice in this state, in view of N.C.L.1931-1941 Supp., sec. 9931,
Pocket Part, which was enacted March 5, 1945, that: In both civil and criminal cases,
exceptions to rulings or orders of the court are unnecessary, and all rulings and orders of the
court are deemed excepted to.
Respondent's counsel have stated, on page 22 of respondent's answering brief, lines 18 to
28, the following: "Instruction Number 15 contains two separate and distinct
propositions: It sets forth the privilege of a person to do certain acts in the defense of his
property.
Instruction Number 15 contains two separate and distinct propositions: It sets forth the
privilege of a person to do certain acts in the defense of his property. It sets forth the
circumstances which must exist at the time of the incident before the exercise of that
privilege.
The appellant's exception to Instruction Number 15 was a general one based upon no
evidence to substantiate such instruction.' The exception taken was to the charge as a whole.
Counsel did not endeavor to point out wherein there was insufficient evidence to substantiate
the instruction. Therefore, the alleged error should not be considered by this Court.
As we view the matter, it may be said as to the exception by appellant's counsel as to
instruction No. 15 being too general because taken as a whole and not specifying, as
respondent contends, the existence of two separate propositions, that respondent's counsel
could, on the other hand, have included more than they did. Undoubtedly, the language of
section 81 (vol. I), page 187, of the Restatement of the Law of Torts embodies paragraphs (1)
and (2), and in view of the factual situation in the instant case and in order that the instruction
No. 15 be not deemed erroneous, the doctrine or rule and the principles embodied therein
should, at least in substance, have included in its appropriate phraseology both of such
paragraphs (1) and (2).
Counsel for the appellant and the respondent, respectively, have, in their respective briefs,
treated and considered said volume I, section 81, of the Restatement of the Law of Torts, on
page 187 (and correctly so), and, after a thorough study of said paragraphs (1) and (2), it
appears indispensable to the proper application of the facts and circumstances in the instant
situation, that said paragraphs be treated as a whole, that is to say, treated merely as parts of
an essentially entire proposition.
We shall now, to the extent which may appear necessary, consider further the instruction
No. 15. One of the most important of the sections of volume I of the Restatement of the Law
of Torts is that designated as section S1, page 1S7, which is as follows:
Restatement of the Law of Torts is that designated as section 81, page 187, which is as
follows:
Sec. 81. Amount of Force Permissible.
(1) The actor is not privileged to use any means of defending his land or chattels from
intrusion which are intended or likely to cause bodily harm or confinement in excess of that
which the actor correctly or reasonably believes to be necessary to prevent or terminate the
other's intrusion.
(2) The actor is privileged in defense of his land or chattels against intrusion to do an act
which is intended to put another in immediate apprehension of a harmful or offensive contact
or other bodily harm or confinement which is in excess of that which the actor is privileged to
inflict, if his act is intended and reasonably believed by him to be likely to do no more than to
create such an apprehension.
Comment on Subsection (1):
a. The Comment on Sec. 70 is equally pertinent to this Section. The rule stated therein,
that a force, though normally not excessive, may become excessive because the actor realizes
or as a reasonable man should realize that under the circumstances it is likely to result in
harm to the other in excess of that which the actor is privileged intentionally to inflict, is
applicable to a situation which is of frequent occurrence under the rule stated in this Section.
Comment on Subsection (2):
b. One in possession of land or chattels may intentionally put another in such an
apprehension of contact not threatening serious harm or death, as, but for the privilege, would
be actionable, even though the harm which he causes the other to apprehend is in excess of
that which he is privileged to apply. But he may not make such a threat if he knows or should
know that the circumstances are such that the other, in his effort to avoid the threatened harm,
may probably sustain harm greater than the actor is privileged intentionally to inflict upon
him. Thus, while one upon whose vehicle a boy is stealing a ride may drive him therefrom
by threatening him with a whip with which he would not be privileged to beat the boy, he
is not privileged to do so if the vehicle is moving at a rapid rate or amidst heavy traffic.
a boy is stealing a ride may drive him therefrom by threatening him with a whip with which
he would not be privileged to beat the boy, he is not privileged to do so if the vehicle is
moving at a rapid rate or amidst heavy traffic. So too, one may not by a similar means drive
another from his land if the only way of escape therefrom involves danger of substantial
harm. In determining whether a particular way of escape therefrom involves such a danger,
account must be taken of the fact that the other may be so taken up with his efforts to escape
the violence threatened by the actor as to be unable to observe perils which he otherwise
would be able to avoid.
Considering the matter concretely and applying the situation to the instant case, the
language of the paragraph (2) above mentioned permits one in a situation like Burkham, the
respondent, in availing himself of his privilege in defense of his land or chattels against
intrusion, to do an act which is intended to put another in immediate apprehension of a
harmful or offensive contact or other bodily harm or confinement which is in excess of that
which the actor is privileged to inflict, if his act is intended and reasonably believed by him to
be likely to do no more than to create such an apprehension. So, such theory of excessive
bodily harm or confinement is not to be applied actually and in fact, but merely to do no more
than to create such an apprehension. In other words, it is only a make-believe deterrent, and
is in contradistinction to the meaning of paragraph (1), in which latter paragraph one in the
situation of Burkham is not privileged to use any means of defending his land or chattels
from intrusion which are intended, or likely, to cause harm or confinement in excess of that
which the actor correctly or reasonably believes to be necessary to prevent or terminate the
other's intrusion. (Italics supplied.)
Let us apply the concrete situation to Burkham and, respectively, to David Walker. Upon
Burkham's returning from his going to the home of David Walker's mother, and not finding
her at home, Burkham called to the boy, David, and said he wanted to talk to him.
mother, and not finding her at home, Burkham called to the boy, David, and said he wanted to
talk to him. David was playing nearby, and he responded and walked toward Burkham, and
they thereupon virtually confronted each other. Burkham, according to David's testimony,
yelled at him, and, in effect, stated to David that his damaging action in breaking glass in
the street would have to stop. From the testimony of David, Burkham looked and appeared to
be very angry. David thereupon started back a step or two, and started to run from Burkham.
Burkham, in effect, said David was directing his course toward the warehouse. David testified
that he ran north on Winter Street, and was running near the alley alongside the warehouse,
but had not actually started to enter. Whatever mere apprehension there was, was of short
duration, and would apply to a situation such as described in said paragraph (2) of the
Restatement.
From that point in the narrative, the situation became not merely one of apprehension, but
of actual and physical acts and conduct as between Burkham and the boy, David Walker. It
was at that point that the actual assault commenced. Burkham immediately ran after David,
and, running swiftly, overtook him at the entrance of or inside, the warehouse. The testimony
is uncertain as to that phase of the factual situation. Burkham, at the trial, said he had run
around David, and, in effect, had blocked him and prevented his getting farther inside the
warehouse, but indicated that David was inside. In certain earlier proceedings before Judge
Maestretti, it appeared from the testimony of Burkham that he was not certain whether David
was actually inside the warehouse upon the occasion mentioned. And David testified, in
effect, that he was running past the alley and near the entrance, but not inside, when Burkham
stopped him. That fact, however, seems quite immaterial. All of these matters were of such
nature as to make applicable to concrete facts, such as were then occurring as between
Burkham and David, a factual situation such as is described in the language designated as
paragraph {1) of section S1, of said volume I of the Restatement of the Law of Torts, and
not as described in paragraph {2) thereof, dealing merely with the term "apprehension."
situation such as is described in the language designated as paragraph (1) of section 81, of
said volume I of the Restatement of the Law of Torts, and not as described in paragraph (2)
thereof, dealing merely with the term apprehension. And in instruction No. 15, as before
indicated, only such facts as were applicable to the doctrine of said paragraph (2) of the
Restatement were embodied in that instruction, and the facts (now described in this opinion)
which were applicable properly only to the doctrine of said paragraph (1) were omitted in
such instruction No. 15.
It seems somewhat surprising, viewing the matter from a legal point of view, why
Burkham became so perturbed, agitated and perhaps angered just before and at the time he,
Burkham, called to David when the latter was playing. In the past, David and other boys had
doubtless been annoying, as boys sometimes are, but on this particular occasion, in tossing
the glass tube in the street, and which apparently had inadvertently hit Burkham, shattering
the glass at his feet, there appeared no indication of any substantial injury to Burkham. And
David, immediately after Burkham had told him to do so, had picked up the broken glass
particles from the street and thrown them on a vacant lot, where rocks, rubbish, etc., were
deposited. From Burkham's commanding expression and apparent anger, one may speculate
as to whether the attitude and actions of Burkham were reasonable, or whether they were
retaliatory, and whether or not personal dislike or revenge may have entered. Burkham, upon
accosting David near or at the warehouse, grabbed David and turned him around, so
Burkham would be farther inside the warehouse than David, and confronting him. It was then
that Burkham employed such physical force not only to turn David around, but also to tear his
shirt, and perhaps, too, it was then that David's glasses were broken. It may naturally be
wondered as to whether or not Burkham's angry attitude, his pursuit of David amounting to
assault, with the means at hand of violently assaulting him, and his attitude in committing
a harmful contact or battery upon him, in which he pulled David around and tore his shirt,
was because of such angry, hostile or malicious attitude on the part of Burkham, and
which may, perhaps, have been due to human frailty on Burkham's part, in resenting to
too great an extent a boyish prank or pranks, or mischievous conduct, or whether or not
same was solely due to the force employed by Burkham to prevent this particular
indication of probable or possible intrusion or trespass upon the warehouse property.
with the means at hand of violently assaulting him, and his attitude in committing a harmful
contact or battery upon him, in which he pulled David around and tore his shirt, was because
of such angry, hostile or malicious attitude on the part of Burkham, and which may, perhaps,
have been due to human frailty on Burkham's part, in resenting to too great an extent a boyish
prank or pranks, or mischievous conduct, or whether or not same was solely due to the force
employed by Burkham to prevent this particular indication of probable or possible intrusion
or trespass upon the warehouse property.
Reference is made to the case of Curlee v. Scales, of the Supreme Court of North Carolina,
200 N.C. 612, 158 S.E. 89, in which, in the syllabus, it is stated:
One in possession of property has right to protect it against aggression, using force
reasonably necessary, except that human life must not be endangered or great bodily harm
inflicted.
Question of excessive force in defense of property is for jury.
In view of the verdict of the jury in the instant case, and bearing in mind the reasoning
embodied in the principles of paragraph (1) of sec. 81 of the Restatement, upon the subject
Amount of Force Permissible, on page 187, and in which it is stated that excessive force
must not be used, and that such force is excessive if great bodily injury is inflicted, but may
not be excessive, even though bodily harmful, if the actor reasonably believed the course
employed was reasonably necessary, to prevent or terminate the other's intrusion, it would
appear to us, under all the circumstances, that such assault or assault and battery as to the
force employed in regard to the occurrence at or in the warehouse should not have been
deemed excessive. And doubtless the jury so found, if they expressly considered that phase of
the matter.
What followed immediately after the episode at the warehouse? Burkham at that time said
to David that David's behavior must improve, that he, Burkham, would call to see David's
mother, and also mentioned something as to taking David to the police station,
apparently in the event that such conditions were not met.
David's behavior must improve, that he, Burkham, would call to see David's mother, and also
mentioned something as to taking David to the police station, apparently in the event that
such conditions were not met. Immediately, David sort of slumped down and ran entirely
away from the warehouse and from the premises, and unlike the Arab who folded his tent
and silently stole away, David acted more as described by appellant's counsel on page 22 of
appellant's reply brief, that he was scampering away as fast as his legs would carry him.
Again, Burkham immediately resumed running after David, but this time, instead of
running to prevent or terminate the other's intrusion, did just the opposite. It is difficult to
determine why there was any need at all, or any justification, for Burkham, upon the intrusion
having completely terminated, to have renewed the former assault with the offer and means of
violence indicated, as he had done before when probable intrusion upon the warehouse
premises was imminent. Burkham rather weakly asserted, as indicated by the record, that he
expected David to circle back again toward the warehouse, but such assertion on Burkham's
part was not evidence, but purely speculation, that is, a mere guess on his part.
Why did Burkham find it necessary to apprehend David when the latter was fleeing to his
mother's premises, and to assume dominion over him, in order to take him before his
mother? Burkham could, when the mother returned home, then, or at another time, have
peacefully and without the assertion of any force and probably with the mother's request to
David, have informally arranged for a conference or discussion as to taking steps to improve
David's behavior, and to prevent any recurrence of depredations of which Burkham so
bitterly complained. Such would have been, it is believed, the better course, and same
doubtless would have been followed had not anger, or at least had not temper and
provocation, been permitted to enter into Burkham's then mental attitude. Probably, too, by a
different conception and by other methods much more could have been accomplished.
a different conception and by other methods much more could have been accomplished.
Much harm, under varying facts and circumstances and which involve serious physical injury
and mental distress respecting persons directly or indirectly involved, in their acts and
relations, often-times results from a person taking the law into his own hands.
It is not advisable, we believe, to determine certain other defensive matters concerning the
case, but such matters may well be left to the trial court and jury to decide at a new trial.
Other questions, such as intent and/or malice, under certain circumstances, and, perhaps,
other possible matters of a defensive character, are not within the scope of instruction No. 15,
nor of specification of error No. II.
Referring again to instruction No. 15, it is apparent that the principles and legal factors
embodied in paragraph (1) of said sec. 81 of vol. I of the Restatement of the Law of Torts,
page 187, were not included in said instruction No. 15, in view of what we have just been
dealing with as to the factor or element in said paragraph (1) as to terminating the other's
intrusion, and which, in view of the developments in the case, was of the very essence of the
cause of action, and was not mentioned in instruction No. 15, nor were other important and
essential elements included therein.
Instruction No. 15 is based only upon the proposition of apprehension, and its
accompanying language was misleading and calculated to divert the attention of the court and
of the jurors from the substantial principles and factors embodied in paragraph (1) of said sec.
81, vol. I, of the Restatement, as applied to the essential factual situation. Therefore, the
instruction No. 15, which did not apply to any important principle applicable to the concrete
facts or law involved in the present issues in the instant case, was, in large part if not entirely,
academic and moot, and cannot properly be approved by this court. The specification of error
No. II, therefore, is well taken.
Referring to the specification of error No. III, that the trial court erred in giving instruction
No. 22, it does not appear necessary, in treating this specification of error, to do more than
refer to a number of the authorities, as we feel convinced that the principles set forth in such
authorities are correct.
In relation to chapter 11 of the Restatement of the Law of Torts, vol. I, on pages 681-683,
under the subject, Causal Relation Necessary to Liability for Intentional Invasions of
Interests of Personality, Land and Chattels, in sec. 279, it is stated: If the actor's conduct is
intended by him to bring about bodily harm to another which the actor is not privileged to
inflict, it is the legal cause of any bodily harm of the type intended by him which it is a
substantial factor in bringing about.
Under paragraphs a, b and c of Comment, on said pages 681-683, is much
illustrative material supporting the text.
And the opinion in the case of Eastern Texas Electric Co. v. Baker, Tex.Civ.App., 238
S.W. 335, we believe, sufficiently and clearly discusses the rule properly. We have referred to
the opinion, and will quote from the syllabus, in 238 S.W. on page 336, as follows: In an
action for willful, aggravated assault and battery, proximate cause is not an issue requiring
instruction to jury, and the perpetrator of the act is presumed to have intended the
consequences.
For the reasons indicated, the specification of error No. III is well taken.
In specification of error No. IV it is stated that: The Court erred in admitting testimony of
the defendant, Bert Burkham, that the plaintiff had trespassed upon the property and
committed depredations to the property of the Consolidated Warehouse after September 15,
1943, and after the time of the alleged assault, and that the plaintiff had crawled over the
fence into the Consolidated Warehouse property and started pounding on an automobile with
a pipe.
It appears reasonably clear that in his testimony Burkham, the respondent, testified, in
effect, that at least several days after September 15, 1943, it not appearing with any certainty
how many days thereafter, the plaintiff, David Walker, had trespassed as above indicated.
As we view the matter, these alleged facts were not within the issues. As fully treated in
connection with the specification of error No. I, the facts involved occurred neither on nor
about September 15, 1943, and, consequently, were not within the pleadings.
Furthermore, even if we could properly find that the acts or conduct which occurred
subsequent to the facts and circumstances constituting the cause of action might be relevant
to affect the extent of damages, or to mitigate same, because of some act or conduct of the
plaintiff which it is contended, in effect, by respondent, might have caused further damages
for which he, rather than Burkham, may have been legally responsible, there appears no
sufficient reason, under the pleadings, whereby same could have been properly considered.
Even if, under certain exceptional circumstances which may have occurred after
September 15, 1943, the evidence could have been considered relevant, on the point in
question as to whether or not, due to lack of proper care of the plaintiff's injured arm, further
injury was caused by reason of his own negligence, to the extent that the amount of damages
might be apportioned or mitigated, such evidence, we believe, could not properly have been
considered in the absence of some further additional pleading.
In view of the situation as same now appears in the record, the specification of error No.
IV is well taken.
For the reasons fully set forth above, it is ordered that the judgment and the denial by the
district court of plaintiff's motion for a new trial be, and they hereby are, reversed.
Badt and Eather, Justices (concurring specially).
We concur in the order reversing the judgment and in the order reversing the denial of
appellant's motion for a new trial and remanding the case to the district court for a new
trial.
in the order reversing the denial of appellant's motion for a new trial and remanding the case
to the district court for a new trial. However, as such concurrence is based entirely upon the
appellant's third assignment of error and as the opinion of the chief justice finds such reversal
necessary by reason of all four of appellant's assignments of error, we find it necessary to set
forth our views as briefly as may be.
The foregoing opinion correctly analyzes the complaint as containing two causes of
actionthe first being for unlawful assault and the second for unlawful assault and battery,
both being alleged to be wilful and malicious. This analysis coincides in turn with the two
separate episodes of September 15, 1943. The first of these episodes, namely, defendant's
pursuit of plaintiff as the latter was running towards the warehouse door and defendant's
overtaking of the plaintiff at the door and his catching of the plaintiff by the shirt, being the
first episode and the basis of the cause of action for assault and battery. This episode,
accepting the jury's version of the case, was the only one in which defendant made any bodily
contact with the plaintiff. The second episode was defendant's pursuit of plaintiff when the
latter was entirely off the defendant's premises and even off the street fronting the defendant's
premises and was running away towards his own house pursued by defendant.
1. I. Appellant's first assignment of error goes to the admissibility of evidence adduced by
respondent both in cross-examination of the plaintiff and through respondent's own witnesses
concerning prior intrusions and trespasses on the part of plaintiff. We are unable to agree that
the admission of such evidence was error, with particular reference to the first episode and the
cause of action for assault and battery. Indeed, the foregoing opinion of the chief justice
recognizes that in view of the verdict of the jury in the instant case and the rule that force
may not be excessive, even though bodily harmful, if the actor reasonably believed the
course employed was reasonably necessary to prevent or terminate the other's intrusion,"
the assault and battery and the force employed at the warehouse could not be deemed
excessive, "and doubtless the jury so found * * *."
the course employed was reasonably necessary to prevent or terminate the other's intrusion,
the assault and battery and the force employed at the warehouse could not be deemed
excessive, and doubtless the jury so found * * *. The reasonableness of the force there
employed would, it would seem to us, depend upon the defendant's experience with the
previous trespasses of the plaintiff. This has been most clearly expressed in the case of
Bunten v. Davis, 82 N.H. 304, 133 A. 16, 18, 45 A.L.R. 1409. In that case the defendants
discharged rifle shots against plaintiff's automobile and sought to justify their conduct on the
ground that they were defending their premises from unwarranted intrusion by the plaintiff
and his companions. Plaintiff on the 4th of July was taking five young men for a ride in his
car. As they passed defendants' house both defendants were beside the road with a flashlight
and gun. After passing the house some of the young men exploded dynamite. The car turned
back and some one exploded more dynamite. The car then turned into the defendants'
premises and at her command her son fired at the car. The defendants, as grounds for their
fear of damage to their property, offered to show previous experiences on like occasions.
They were allowed to show all that occurred on the night in question but the rest of the
offered evidence, including evidence of a like occurrence two years before, was excluded as
being too remote. In reversing the judgment for the erroneous exclusion of such evidence, the
court said:
The defendant had the right to make reasonable defense of her property against invasion.
* * * In the determination of the issue thus presented, the defendant's knowledge of facts
bearing upon the situation are to be taken into consideration. While the standard of conduct is
external, the actor's knowledge is included with other facts in ascertaining the reasonableness
of the course pursued. * * *
The nature of the defense is such that more is involved than merely the defendant's state
of mind. In order to make good the defense set up it was necessary that it be made to
appear, not only that the defendant entertained certain apprehensions, but also that her
knowledge justified her state of mind and the conduct induced thereby.
make good the defense set up it was necessary that it be made to appear, not only that the
defendant entertained certain apprehensions, but also that her knowledge justified her state of
mind and the conduct induced thereby. The jury were to be the judges, not only of her belief,
but also of the reasonableness of her belief and conduct. To deal with these propositions, it
was essential that they be put in her place and supplied with all the facts which she had to
consider. Her acts were to be judged in the light of all the circumstances which existed and
were likely to influence conduct. (Citing authorities.) * * *
Unless it could be concluded, as matter of law that the defendant's former experience
could not be found to furnish a justification or legal excuse for her conduct, she was entitled
to put that experience before the jury. If justification might be found therefrom, it was her
legal right to introduce the facts in evidence. * * * When the issue is the reasonableness of
conduct, a narrow limit cannot be put upon the scope of the inquiry into the knowledge and
experience of the actor.
The issue of reasonable conduct is not usually proved by direct testimony to that end. It is
a conclusion to be drawn by the trier of the fact from other facts that are put before him for
his consideration. The appeal is to the judgment and experience of the jury.' * * * Hence it
follows that all the surrounding circumstances become facts material to the case, as
distinguished from circumstantial evidence from which a conclusion as to the existence of
such facts is sought to be drawn. They are circumstances in proof, but they are not
circumstantial evidence. * * *
The mere fact that some of the occurrences offered in proof happened two years before
the time in question did not make them remote. In view of the peculiar nature of the
transactions involved, they were immediate. * * * Remoteness is a relative proposition. Time
and space are only parts of the element to be considered.
The respondent cites other authorities to like effect but we believe the foregoing case to be
so well reasoned (see entire opinion) and so applicable in its facts to the first episode in this
case that discussion of other authorities is not warranted. Appellant relies strongly upon the
annotation in 63 A.L.R. 890 and states that it there appears that in 22 of the 33 jurisdictions
that have considered the point it was held that evidence of prior trespasses on the part of the
plaintiff was not admissible. It should be noted, however, that this annotation has to do
entirely with the question of the admissibility of such evidence in mitigation of compensatory
damages and does not deal with such evidence as justification for the defendant's act or the
reasonableness thereof. With all due respect to the foregoing opinion we cannot agree that the
admission of the evidence in question, particularly as it applied to the first episode, the cause
of action for assault and battery, was erroneous.
II. The second specification of error attacks instruction No. 15. The opinion of the chief
justice in upholding this assignment of error does not quote the instruction, which reads as
follows:
You are instructed that a person has the right to defend his land and chattels against
trespass or intrusion and in so doing has the right to do such acts and things as are intended to
put the trespasser or intruder in immediate apprehension of a harmful or offensive contact or
other bodily harm or confinement which is or may be in excess of that which he is lawfully
entitled to actually inflict, provided his act is intended and reasonably believed by him to be
likely to do no more than to create such apprehension in the mind of the trespasser or
intruder.
Therefore, if you find from a preponderance of the evidence, as herein defined, that the
plaintiff was such a trespasser or intruder at the time set forth in the complaint and that the
acts of the defendant were intended and reasonably believed by the defendant to be likely to
do no more than to create such apprehension in the mind of the plaintiff, and if you
further find from a preponderance of the evidence that while under such apprehension
the plaintiff fell and injured himself in running from the defendant at the time alleged in
the complaint, the defendant is not liable and your verdict should be for the defendant."
do no more than to create such apprehension in the mind of the plaintiff, and if you further
find from a preponderance of the evidence that while under such apprehension the plaintiff
fell and injured himself in running from the defendant at the time alleged in the complaint,
the defendant is not liable and your verdict should be for the defendant.
The reason assigned by the chief justice for holding this instruction bad, is that it covers
only the second episode, the defendant's pursuit of the plaintiff when the latter was fleeing
from the premises and when no steps or acts were required on the part of the defendant to
prevent or terminate a trespass or intrusion. In our opinion, however, the first episode was
covered by instruction No. 16, reading as follows: You are instructed that to use or attempt
to use force or violence upon or towards the person of another is not unlawful, when
committed by a person preventing or attempting to prevent a trespass or other unlawful
interference with real or personal property in his lawful possession, provided the force or
violence used is not more than sufficient to prevent such offense, or more than seemed to a
reasonable man under the circumstances to necessary.
2. The converse of this proposition would seem to be self-evident, namely, that if the force
or violence used was not for the purpose of preventing a trespass, or was more than sufficient
to prevent the trespass or more than would appear necessary under the circumstances to a
reasonable man, the use of such excessive force would be unlawful. In any event no error was
assigned for any alleged refusal by the trial court to give such converse instruction. Hence
instruction No. 15, even assuming that it applied only to the second episode, was not
erroneous. It should be emphasized that instruction No. 15 contains important language not
quoted in the opinion of the chief justice, namely, that in defining the right of the owner of
the premises to put the trespasser or intruder in immediate apprehension of a harmful or
offensive contact, the same is restricted to the right of a person "to defend his lands and
chattels against trespass or intrusion."
offensive contact, the same is restricted to the right of a person to defend his lands and
chattels against trespass or intrusion. Under this instruction plaintiff's counsel had the right
to argue to the jury, and undoubtedly did so, that under the second episode the defendant was
not engaged in defending the property from intrusion. We think the instruction was proper
and in complete accordance with the rule stated in the Restatement of the Law.
3. III. We are in accord with the conclusion reached by the chief justice that the giving of
instruction No. 22 was error. This instruction likewise is not quoted in full in the foregoing
opinion and we find it necessary to set it forth. It is as follows: You are instructed that the
proximate cause of an injury as the term is used in this charge, in its legal signification is a
cause which in its natural and continuous sequence, unbroken by any new cause, produces an
event, and without which the event would not have occurred, but in order to warrant a finding
that any act of defendant is the proximate cause of an alleged injury, it must appear from the
preponderance of the evidence as herein defined that the injury, if any is found, was the direct
consequence of such act.
Proximate cause had no place in the case and it was error to instruct the jury that to find
for the plaintiff it must appear that the injury was the direct consequence of defendant's act.
The jury had the right to find that defendant's pursuit of the plaintiff when the latter was off of
and fleeing from the defendant's property, had no relation to any attempt to prevent or
terminate a trespass or intrusion, or a threatened or attempted trespass or intrusion, and that
the defendant's pursuit of the plaintiff was therefore wrongful and unlawful. Under these
circumstances the jury had the further right to find that by reason of such unlawful pursuit
and by reason of defendant's anger and threatening demeanor the plaintiff was put in such fear
that he could not be reasonably expected to avoid even such ordinary danger involved in his
flight.
ordinary danger involved in his flight. Under these circumstances, under which the defendant
would not be privileged, the injury would not have to be the direct consequence of the
pursuit. If the pursuit was a substantial factor in bringing about the injury and if the jury
believed that it was unwarranted and unlawful under the circumstances, it would have been
sufficient as a contributing cause as distinguished from the direct cause. In this conclusion we
are not to be understood as negativing the right of the jury to believe the defendant's
testimony that he was trying to prevent the plaintiff's circling back to the warehouse as he had
done in the past.
IV. It is conceded in the opinion of the chief justice that the evidence of the plaintiff's
subsequent actions resulting in aggravating his injuries, namely a second fracture of the arm,
would not have been improper had it been pleaded by the defendant. The relevancy of such
testimony is referred to by the chief justice being to affect the extent of damages, or to
mitigate the same, because plaintiff in such case rather than the defendant, would have been
legally responsible therefor. The appellant's fourth assignment of error does not even raise the
point involved in this rule. The appellant simply asserts that evidence of a trespass subsequent
to the assault could not be considered either as justification for the prior assault nor in
mitigation of compensatory damages. Of course it could not be in justification of the assault
and was not offered for that purpose. The reason assigned by appellant why it could not be in
mitigation of damages, is that such mitigation can only be sought when punitive damages are
asked for. That, however, comes under an entirely different rule which the authorities appear
fully to support. The evidence here, however, was offered not for that purpose but simply to
show that damage caused by the second break was, or could have been the result of plaintiff's
own actions, a purpose which the chief justice concedes to be proper, but only if pleaded.
4. The appellant does not raise the question of the sufficiency of respondent's answer to
justify the introduction of evidence to show that plaintiff's own subsequent acts aggravated
his damage (neither he nor his doctor could testify as to what caused the breaking of the cast),
and as respondent has had no opportunity to be heard on the point, we are averse to
recognizing it as ground for reversal. Section 9385.93, N.C.L.1931-1941 Supp., provides:
The appellant shall, in his opening brief, state his points and such errors as he shall rely on *
* *. Section 9385.94 reads: The supreme court shall not decide any case on any point not
raised in the opening brief or briefs in answer thereto without first giving all parties affected
an opportunity to be heard upon such point. See Robison v. Mathis, 49 Nev. 35, 234 P. 690;
Wittenberg v. Wittenberg, 56 Nev. 442, 55 P.2d 619.
Reporter's Note: See also 68 Nevada.
____________
67 Nev. 577, 577 (1950) Leonard v. Belanger Et Al.
STELLA B. LEONARD, Formerly Known as Stella B. Leonard Belanger, Plaintiff and
Respondent, v. DAVID J. BELANGER, H. M. CHILDERS AND VINCENT VRENON,
Individually and Doing Business Under the Name and Style of Modern Dairy,
Defendants and Appellants.
No. 3603
September 11, 1950. 222 P.2d 193.
Stella B. Leonard, formerly known as Stella B. Leonard Belanger, brought action against
David J. Belanger, H. M. Childers and Vincent Vrenon, individually and doing business
under the name and style of Modern Dairy, for return of cattle alleged to be plaintiff's
property. A judgment directing return of the cattle was entered by the First Judicial District
Court, Churchill County, Merwyn H. Brown, Judge, presiding, and the defendants H. M.
Childers and Vincent Vrenon, individually and doing business under the name and style of
Modern Dairy, appealed. On motion to dismiss the appeal the Supreme Court, Badt, J.,
held that where appealing defendants had filed disclaimers of title to the cattle, they were
not aggrieved parties entitled to appeal from the judgment.
Modern Dairy, appealed. On motion to dismiss the appeal the Supreme Court, Badt, J., held
that where appealing defendants had filed disclaimers of title to the cattle, they were not
aggrieved parties entitled to appeal from the judgment.
Appeal dismissed.
Horsey, C. J., dissented.
Parties who disclaim any interest in subject matter in litigation cannot appeal, where no costs are taxed
against them, although order is made denying a petition to strike their names from the files, but such rule
does not prevent a person from appealing, although he has denied or disclaimed interest, if a personal or
otherwise prejudicial judgment or decree is rendered against him.
Generally, a party cannot prosecute an appeal or writ of error to reverse a judgment, order or decree,
where his interest in the subject matter or controversy has ceased, either before suit was commenced or
pendente lite, by conveyance, sale, assignment, release, or operation of law, so that the judgment, order, or
decree does not prejudice him, although it may be erroneous and prejudicial to other parties.
The statute providing that an action shall not abate by death or other disability of a party or by transfer of
any interest therein, if the cause of action survive or continue, did not authorize defendants in action for
return of cattle, who had specifically disclaimed any claim of ownership or right to possession of the cattle,
to appeal as aggrieved parties from judgment directing return of the cattle. N.C.L.1929, sec. 8561.
In action by divorced wife for return of cattle alleged to be her property, brought against divorced
husband, a buyer of the cattle from divorced husband and a subsequent buyer, where cattle had been sold to
still another, and the buyers filed disclaimers of title to the cattle, buyers were neither such aggrieved
parties nor had they such direct interest in subject matter of the action or the appeal as to permit either of
them to appeal from judgment directing return of the cattle or from order denying their motion for new
trial.
Fact that divorced wife seeking return of cattle alleged to be her property named a buyer of the cattle
from divorced husband and a subsequent buyer as defendants in addition to her divorced husband did not
estop her from moving to dismiss the buyers' appeal from judgment directing return of
cattle, after buyers had filed their disclaimers of title to the cattle.
dismiss the buyers' appeal from judgment directing return of cattle, after buyers had filed their disclaimers
of title to the cattle.
Royal A. Stewart, of Reno, for Appellants.
John S. Sinai, of Reno, and Andrew L. Haight, of Fallon, for Respondent.
Morley Griswold and George L. Vargas, both of Reno, amici curiae.
OPINION
Respondent Stella B. Leonard, formerly known as Stella B. Leonard Belanger, recovered a
judgment against David J. Belanger, H. M. Childers and Vincent Vrenon for the return of
forty-one milk cows and two bulls and for an accounting of the proceeds of sales of milk and
sales of calves from said cows during the period of the defendants' alleged unlawful
possession of them, and for her costs. Childers and Vrenon appealed from the judgment and
from the order denying their motion for new trial, and respondent has moved to dismiss their
appeal upon the general ground, hereinafter more specifically discussed, that they have no
present interest in the subject matter of the judgment, that they are accordingly not aggrieved
parties, that they have specifically disclaimed any interest or claim of ownership or right to
possession of the cattle in controversy and that any controversy over the ownership of the
cattle has become moot so far as they are concerned. It will be necessary to trace the
ramifications of the various phases of the litigation that have involved these parties and the
livestock in question up to the present point. It will avoid confusion if we refer to the parties
by name.
On June 25, 1948, Stella B. Leonard, then Stella B. Leonard Belanger, commenced a
divorce action against David J. Belanger, which also involved the issue of the ownership of
forty-one head of dairy cows and two bulls, besides other personal property and real
estate.
ownership of forty-one head of dairy cows and two bulls, besides other personal property and
real estate. The decree of divorce, entered in favor of Mrs. Leonard on September 14, 1948, in
said action decreed that said livestock were her sole and separate property at the time of the
marriage, and continued to be so. During the pendency of the divorce action on July 31, 1948,
David J. Belanger, the defendant, sold or attempted to sell the forty-one milk cows and two
bulls to Childers, and on September 10, 1948, Childers sold or attempted to sell said cattle to
Vrenon, then doing business as Modern Dairy. Mrs. Leonard did not consent to and had no
knowledge of these transactions. As noted, she was by the divorce decree adjudged the owner
of the livestock. By reason of the sales and deliveries above mentioned, it became necessary
for her to sue Belanger, Childers and Vrenon to recover them. Belanger (who had defaulted in
the divorce action by failing to answer after the overruling of his demurrer) likewise defaulted
in the action brought against him, Childers and Vrenon for the recovery of the cattle. As a
matter of fact, upon selling the cattle to Childers he immediately pocketed the money in cash
and absconded, and has apparently not since been heard from. On the day the divorce action
was called up for trial Belanger's attorney, George L. Vargas, Esq., one of amici curiae, was
permitted by the divorce court to withdraw as defendant's attorney.
The action against Belanger, Childers and Vrenon was commenced November 4, 1948,
and was tried October 19, 1949. Honorable Clark J. Guild presided in the divorce action, and
Honorable Merwyn H. Brown presided in the second action. In the latter, the court made
findings to the effect that neither Childers nor Vrenon was a bona fide purchaser without
notice and that neither obtained any title to the cattle by reason of the purported sales. The
conclusions of law and judgment based on these findings followed in due course and ordered,
adjudged and decreed that Vrenon return the cattle to Childers and that Childers return them
to Mrs. Leonard.
No alternative judgment was sought or rendered. The cattle are referred to as the identical
forty-one cows and two bulls involved in the divorce action.
This judgment was immediately, on October 21, 1949, docketed in the office of the clerk
of the district court and execution issued thereunder, commanding the sheriff of Churchill
County to deliver the possession of said cattle to plaintiff. The sheriff served the execution on
Vrenon, who advised that the cattle were located on the ranch premises of Milton A. Bowler
and Milton D. Bowler in said county, and led the sheriff to such Bowler ranch by preceding
the sheriff's car in Vrenon's own car. The sheriff found the cattle on the Bowler premises and,
with the exception of one of the bulls which apparently had died, removed the cattle and
placed them in possession of Mrs. Leonard, and filed his return.
The Bowlers filed a statutory third-party claim, alleging that they were the owners and
entitled to the possession of the cattle and demanding their return. No proceedings were had
as provided by the third-party claim statute to determine ownership or right of possession, nor
did the sheriff exact from Mrs. Leonard a bond against the Bowlers' third-party claim.
The Bowlers then sought a writ of mandamus from the district court commanding the
sheriff to return the cattle to them, but after a hearing the writ was denied and the proceedings
dismissed. The Bowlers then filed their petition with this court for a similar writ of
mandamus.
1
In the course of the hearing of such petition for the writ of mandate there was
placed before us the record of the evidence and proceedings as had before the district
court, Honorable Clark J.
____________________

1

Messrs. Griswold and Vargas, originally attorneys for Belanger in the divorce proceedings, and attorney
for the Bowlers in the mandamus proceeding in the district court, and attorneys for the Bowlers in the mandamus
proceeding in this court, and attorneys for the Bowlers in the proceedings supplementary to execution in the
district court hereinafter discussed, and attorneys for the witness Ronnow in such supplementary proceedings,
were by ex parte order of this court permitted to appear in this proceeding as amici curiae. Respondent, with
much justification, asserts that under the circumstances the order permitting the appearance of amici curiae was
an inadvertence, but in view of the conclusions reached in this opinion it becomes unnecessary to discuss the
point.
for the writ of mandate there was placed before us the record of the evidence and proceedings
as had before the district court, Honorable Clark J. Guild presiding, at the hearing of the
petition for mandamus in that court.
We granted the writ of mandamus, Bowler v. Vannoy, etc., 67 Nev. 80, 215 P.2d 248, and
explained briefly in denying a petition for rehearing, Bowler v. Vannoy, 67 Nev. 113, 216
P.2d 274, the reason therefor. We there said: Respondent sheriff, armed with a writ against
Vrenon, ordering respondent to deliver certain livestock to Mrs. Leonard, found the cattle in
the possession of the Bowlers, who were not parties to the writ or to the action, and who
claimed title and right of possession. It was the sheriff's clear mandatory duty, in the absence
of any process directed against the Bowlers, in the first place to respect their claim of title and
claim of right to possession, and in the second place to honor their third party claim in default
of Mrs. Leonard's bonding against it and in the absence of proceedings under the third party
claim statute.
Our original opinion in the mandamus proceeding was filed February 10, 1950, and our
order denying rehearing on March 27, 1950. It now appears that on February 14, 1950, Mrs.
Leonard initiated proceedings supplementary to execution in the district court and in aid of
the judgment and execution against Childers and Vrenon, which came on for hearing on April
29, 1950, and in which Childers, Vrenon, Milton D. Bowler, Milton A. Bowler, and one J.
Price Ronnow (who apparently acted as an agent for the person lending the Bowlers part of
the purchase price of the cattle in question) were called and examined as witnesses. At this
hearing the Bowlers were represented by Messrs. Griswold and Vargas, and Childers and
Vrenon were represented by Mr. Royal A. Stewart, who had not appeared in the district court
trial against them but who represents them in the present proceeding. We have before us, as
part of the record urged in support of the motion to dismiss the appeal, the transcript of
the supplementary proceedings in the district court.
urged in support of the motion to dismiss the appeal, the transcript of the supplementary
proceedings in the district court. The learned district judge early in those proceedings made it
clear that he recognized the rule that he could not attempt therein to adjudicate title and that if
it appeared that the Bowlers asserted title to the cattle that were the subject of the judgment
and execution in Mrs. Leonard's suit against Childers and Vrenon, he could do no more than
authorize Mrs. Leonard to commence an appropriate action against them.
In these proceedings not only did Milton D. Bowler and Milton A. Bowler both testify
positively to their purchase of the cattle from Vrenon and the date and circumstances and
delivery and payment and other matters in connection therewith, and to their continued
possession and ownership following such purchase (except for the few days when they were
in the possession of Mrs. Leonard after the sheriff's seizure under the writ of execution), but
their counsel now, appearing as amici curiae, vigorously supporting the position of Childers
and Vrenon, constantly and repeatedly made clear to the court his position that Childers and
Vrenon had parted with their ownership and that the Bowlers were the owners. Childers also
in the same proceeding executed an affidavit denying that he refused to comply with the
judgment for the return of the cattle, alleging that in purchasing the cattle from Belanger he
acted only as a buyer for Valley Livestock Company by whom he was employed, and that the
cattle had been transferred to Vrenon long before said action had been commenced, and that it
was beyond his power to return any cattle to the plaintiff or any other person.
2
In his opening
brief on the merits in this appeal he attacks the court's finding that he had ever purchased the
cattle.
____________________

2
The briefs and the record deal voluminously with the question as to whether Childers or Valley Livestock
Co. was Belanger's grantee and Vrenon's grantor. The court's finding that Belanger's sale was to Childers and
that the sale to Vrenon was from Childers, is amply supported by the evidence, and we find it unnecessary to
discuss this phase of the case further.
ever purchased the cattle. Similarly in the supplementary proceedings Vrenon denied that he
had contemptuously or otherwise refused to comply with the judgment and execution for the
return of the cattle and alleged that on the contrary it was beyond his power to comply and
that he had transferred the cattle prior to the commencement of the action. He further testified
that from the time of the sale of the cattle to the Bowlers he claimed no further interest in
them. Other places in the record amply support the conclusion that Childers, Vrenon and the
Bowlers, and their counsel have at all times since the rendition of the judgment from which
this appeal is taken, insisted that neither Childers nor Vrenon has any interest in such cattle.
Appellants lay particular stress upon the fact that the consistent disclaimers of Childers
and Vrenon of any interest in the cattle are to be taken as conditional only. They refer to the
question asked Vrenon in the supplementary proceedings, Is it your contention at the present
time that you have no interest whatsoever in the cattle? and to his answer, No. So far as
interest in the cattle, as long as they are obligated and they pay me the obligation, I have
none. In like manner they refer to Vrenon's testimony that he claimed no interest in the cattle
so long as he was paid the balance of his money. They assert that the evidence shows not only
that there is a balance due Vrenon of $7,000 from the Bowlers as the balance of the purchase
price of the cattle, but a possible liability on his part to repay some $3,000 paid by the
Bowlers. There is also some testimony, it is claimed, indicating that the $7,000 is on deposit
on escrow to be paid to Vrenon when and if the litigation is terminated and the
Belanger-Childers-Vrenon-Bowler title is held to be clear. All this is asserted as
substantiating the view that Childers and Vrenon are aggrieved parties entitled to appeal. The
position of Vrenon would, according to his counsel, make his status substantially that of one
who had sold upon a conditional contract or a title retaining contract of sale or who had
taken a purchase money mortgage.
or who had taken a purchase money mortgage. The evidence however does not disclose such
a situation. The Bowlers simply owed Vrenon money. Such indebtedness was not only for the
balance of the purchase price on these cattle but, according to Vrenon himself, the Bowlers
owed him other moneymoney for hay supplied by Vrenon and money for another bunch of
cattle that Vrenon had helped him purchase. Thus he stated: If the balance is not paid me I
have a claim against the cattle so to speak. Q. Against the cattle or against money? A. Against
anything he has got,wouldn't I? In other words if Bowler was indebted to Vrenon, Vrenon
could obtain judgment against Bowler and satisfy the same by levying upon any of Bowler's
nonexempt property, including these cattle. Even such indebtedness may be questionable.
Vrenon testified that Bowler was to pay for the cattle out of the milk checks. These were
substantial, amounting approximately to $800 a month and being not only for milk produced
by these cows but by Bowler's other cows. At the time of the supplementary proceedings in
February, 1950 this had already amounted, according to Vrenon's ledger sheets produced in
court, to over $6,000, and a matter of arithmetic would indicate that the whole balance is
probably now paid. There is at least nothing to indicate the contrary. Vrenon also insists that
the record shows that he gave a warranty bill of sale to Bowler, but outside of one statement
volunteered by the witness Ronnow, it cannot be said that any proof of a warranty is in
evidence. Boone v. Ledbetter, Mo.App., 200 S.W.2d 601; Raymen v. Galvin, Mo.Sup., 229
S.W. 747. Vrenon produced in court a bill of sale which was exhibited to the trial judge, and
counsel for Mrs. Leonard attempted to introduce it in evidence. Some fifteen or twenty pages
of the record are devoted to objections and arguments on the admissibility of this instrument,
which finally resulted in the success of Vrenon in keeping it out of the record. Further doubt
is cast on any liability of Vrenon to Bowler on the suggested warranty of title, by Vrenon's
repeated statements during the supplementary proceedings that he "bought the cows for
Mr.
repeated statements during the supplementary proceedings that he bought the cows for Mr.
Bowler; that he put up the money to buy the cows for him; that his agreement with Bowler
was that he bought the cattle for him and he was to pay me (Vrenon) back out of the milk
check. Vrenon, further pressed for an explanation of the transaction between him and
Bowler, whether by way of escrow instructions, agreement or otherwise stated: It was just
based on the agreement that we needed more milk and I helped him buy the cattle like I had
other bunches for more milk production, and he was to reimburse me for the cattle out of his
milk check. It also developed that this payment or credit for the proceeds of milk deliveries
included milk from all of Bowler's cows, apparently including the other bunches that
Vrenon had helped him to buy.
The writer of this opinion concurred reluctantly in the order granting the writ of mandamus
against the sheriff and ordering the sheriff to return to the Bowlers the cattle taken from them
under the judgment and execution against Vrenon and Childers. Bowler v. Vannoy, 67 Nev.
80, 215 P.2d 248, 264. The grounds of such reluctance were there stated, the fourth ground
being because our opinion and judgment in this proceeding can determine nothing as to the
conflicting claims of the parties and because such conflicting claims have not yet been
determined. No one in connection with any of these proceedings has claimed at any time that
title or right to possession could be determined either in the proceedings supplementary to
execution or in the mandamus proceeding had in this court. Mrs. Leonard first sought to
establish her title to the cattle in her divorce action against her husband. Her title was there so
determined, but relief under the judgment could not be obtained by reason of his attempted
sale and his delivery of the cattle to Childers and the subsequent delivery of the cattle by
Childers to Vrenon. She thereupon commenced the action against the latter two and obtained
a judgment for the return of these cattle. In that action it is important to note that plaintiff's
complaint alleged that Belanger on July 31, 194S, without the knowledge or consent or
authorization of plaintiff, sold and executed a bill of sale for the forty-one head of cows
and two bulls, the property of Stella B.
it is important to note that plaintiff's complaint alleged that Belanger on July 31, 1948,
without the knowledge or consent or authorization of plaintiff, sold and executed a bill of sale
for the forty-one head of cows and two bulls, the property of Stella B. Leonard Belanger, to
Childers, who purchased the same with actual knowledge of the divorce action. Childers'
answer admitted his negotiations for the purchase of the cattle from Belanger, but alleged that
the bill of sale went through Valley Livestock Co. He also admitted plaintiff's allegation of
her demand for the return of said cows and bulls now in the possession of Vincent Vrenon,
and his refusal to surrender the same. Vrenon likewise in his answer admitted that he was in
possession of 41 head of milch cows and 2 bulls.
Their testimony at the trial was to like effect and at the time of the trial of the action proper
the cattle were still on Vrenon's ranch, and his counsel were familiar with that situation.
The foregoing situation is detailed because of the present insistence of appellants and
amici curiae that if appellants have no present interest entitling them to appeal, they likewise
had no interest which justified the plaintiff in making them defendants in the action, and that
if plaintiff thus made them defendants, she is in no position now to assert that they have not
sufficient interest to entitle them to appeal from an adverse judgment. The situation however
thus relied on by appellants is one not chargeable to respondent, as is abundantly clear not
only from the matter above recited but from other parts of the record.
3
The brief of amici
curiae is devoted mainly to the contention that if the appeal is moot now, it was so when
respondent filed her suit.

____________________

3
The record takes us still further back. In the Belanger divorce action, Mrs. Belanger had obtained a
restraining order restraining Belanger from selling or encumbering the cattle or taking any of the proceeds of
milk sales. Belanger, through his attorneys, who are amici curiae herein, moved to vacate this order, on the
ground that Belanger and Mrs. Belanger each owned an undivided half interest in the cattle, that Belanger did
not intend to and did not contemplate selling any of the cattle, but desired permission to use the proceeds of the
milk sales so as to be able to carry on the business for the benefit of both parties. Thereafter a stipulation
The brief of amici curiae is devoted mainly to the contention that if the appeal is moot
now, it was so when respondent filed her suit. Under the issues made by defendants'
pleadings and under the position taken by them at the trial, we cannot agree with appellants'
contention, repeated again and again, and reiterated by amici curiae, that if appellants by
reason of their having disposed of all interests in the subject matter of the suit are precluded
from a right of appeal, respondent by the same token had sued the wrong defendants in the
trial court and that the judgment should accordingly be reversed without more ado. Both
appellants, prior to the commencement of the action, and in their pleadings, and at the trial
asserted, at the very least, possession and right of possession in Vrenon. Neither of them
disclaimed at any time. The record does not disclose that appellants ever advanced to the
court the theory that they should be dismissed from the case because they had disposed of
their interests in the cattle before the commencement of the action or disclaimed interest
therein, or that they took such position in their motions for new trial or their objections to
plaintiff's proposed findings or in their own proposed findings. They were of course not
parties to Bowler's subsequent mandamus against the sheriff in this court.
____________________
was entered into between counsel, providing for the vacating of the restraining order, the continued sale of milk
to the Crescent Creamery Company of Reno, the deposit of the proceeds to the joint account of the parties
(subject to the payment by the creamery direct to Mrs. Belanger of $50 a week and the further sum of $91 a
month for payments on her car) and the continued operation of the business for the benefit of both. These
stipulations were approved by the trial court in the divorce action July 15, 1948 and the original restraining order
vacated. Belanger's sale, or attempted sale of the cattle to Childers, and his absconding with the proceeds in cash
followed on July 31, 1948, at approximately 12 o'clock noon on a Saturday, under circumstances which the trial
court held, in the subsequent action against Childers and Vrenon, charged Childers with knowledge and notice. It
should be noted, however, in fairness to amici curiae, that when obtaining from this court the preliminary writ of
mandamus in Bowler v. Vannoy, they frankly advised of their former representation of Belanger in the divorce
action until their withdrawal therefrom on September 14, 1948.
the sheriff in this court. In the supplementary proceedings in the district court, after both
mandamus proceedings and during the pendency of this appeal, they for the first time asserted
their immunity from any liability or responsibility for satisfying the judgment and execution
for the delivery of the cattle to Mrs. Leonard, on the ground that they had parted with all title,
right of possession, possession, or interest of any kind. That the facts behind such tardy
disclaimers dated their transfers of title and possession as of a time prior to the
commencement of the action, can hardly avail them, under the circumstances, as a defense
against the clear showing that they have no such interest in the subject matter of the action as
to entitle them to prosecute their appeal.
This conclusion is strengthened by appellants' own analysis of their pleadings in the
district court: The separate answer of the defendant Childers puts in issue the material
allegations of respondent's complaint * * * and sets up a purchase in good faith. * * * The
defendant Vrenon by separate answer denied * * * the material allegations of the respondent's
complaint and alleged purchase * * * without notice of the plaintiff's claim. * * *
The following chronology of the proceeding becomes important, bearing in mind that
Bowler testified that three or four or five months after the first part of August, 1948, he
learned that Mrs. Leonard was suing Childers for the cowsthe same cows that Bowler
had in his possession.
June 25, 1948Complaint for divorce, Belanger v. Belanger.
July 31, 1948Sale, Belanger to Childers (Saturday noon).
August 4 (?), 1948Sale, Childers to Vrenon.
August ? 1948Sale, Vrenon to Bowler.
September 10, 1948Bill of sale, Childers to Vrenon.
November 4, 1948Complaint, Mrs. Leonard v. Belanger, Childers and Vrenon.
October 1, 1948Bill of sale, Vrenon to Bowler.
October 19, 1949Judgment against Childers and Vrenon for delivery of cattle to Mrs.
Leonard.
October 21, 1949Execution. Cattle taken from possession of Bowlers.
October 25, 1949Bowler third-party claim filed with sheriff.
November 30, 1949Childers and Vrenon notice of appeal served.
December 8, 1949Petition for mandamus. Bowler v. Vannoy, sheriff.
December 22, 1949Petition for mandamus argued.
January 3, 1950Petition for mandamus submitted.
February 10, 1950Opinion filed granting mandamus.
April 21, 1950Childers and Vrenon opening brief on appeal on merits filed.
April 29, 1950Proceedings supplementary to execution. Vrenon for first time disclaims
title.
June 2, 1950Mrs. Leonard's notice of motion to dismiss appeal filed.
June 28, 1950Same argued and submitted.
While it is true that the consideration of this motion to dismiss the appeal does not involve
any determination of the actual ownership of the cattle and while such determination was not
involved in the mandamus proceeding, it is significant that the chief justice's analysis of the
facts in his opinion in that proceeding, Bowler v. Vannoy, 67 Nev. 80, 215 P.2d 248, was to
the effect that, at least to the extent of twenty-six cows and two bulls, Bowler had purchased
the same from Vrenon in the beginning of August, 1948, at which time Vrenon had placed in
escrow a written bill of sale; that Vrenon did not receive a bill of sale from Childers till
September 10, 1948, but that this was most likely pursuant to a prior written or oral
agreement between Childers and Vrenon; that Vrenon's testimony claiming ownership of the
cattle because they had not been paid for by Bowler was merely his own conception of the
transaction; and that the circumstances outlined would not have prevented the passing of
an equitable title to Bowler and that the situation might, as between Bowler and Vrenon,
have to be determined by future litigation between them.
the circumstances outlined would not have prevented the passing of an equitable title to
Bowler and that the situation might, as between Bowler and Vrenon, have to be determined
by future litigation between them. The analysis of the facts was to the further effect that at the
time of the levy of execution the Bowlers upon their ranch in said premises were in actual
possession of such dairy cattle, with the right of possession, and claim of ownership thereof.
Appellants place strong reliance on Doyle v. Hays Land & Investment Co., 80 Kan. 209,
102 P. 496, 501, 133 Am.St.Rep. 199. Doyle, named as a defendant as claiming an interest in
property sought to be foreclosed, offered proof of his claim. After he had rested the plaintiff
offered in evidence a deed, recorded after the commencement of the action, showing that
Doyle had conveyed his interest. The decree went against Doyle and he appealed. On motion
to dismiss the appeal the court said: Hence the defendant Doyle was a proper party, and, if
he and his grantee were content to have it proceed to judgment against him, it is not perceived
why the plaintiff should complain. (The Kansas statute, quoted by the court, is similar to our
own, providing that, upon the transfer of an interest during the pendency of an action, it may
be continued in the name of the original party, or the court may allow substitution to be
made.) No authority is cited for the court's ruling, and no reason given other than the one so
casually stated. It may be correct in some cases but not necessarily in all cases. More logical
is the rule stated in 88 A.L.R. 1159, quoted with approval by this court in Kenney v. Hickey,
60 Nev. 187, 105 P.2d 192: The mere fact that a party could properly arouse the jurisdiction
of the court below does not establish his right to appeal from an adverse decision. But a
more logical analysis of Doyle v. Hays appears in Brunson v. Lightfoot, 87 Okl. 202, 209 P.
922, 924. Brunson had disclaimed in his answer to a complaint seeking cancellation of a deed
and to quiet title in plaintiff, and the court rendered judgment against Brunson on the
pleadings.
judgment against Brunson on the pleadings. On appeal Brunson relied upon Doyle v. Hays,
claiming that he was in the same position as Doyle when Doyle's conveyance divested him of
title. The Oklahoma court said: The plaintiff, Hays Land & Investment Company, offered in
evidence a deed executed by Doyle, and claimed Doyle was divested of title. It moved to
dismiss Doyle's appeal because, as they assert, the deed offered in evidence by them divested
Doyle of title, and he therefore could not maintain the appeal. Doyle did not disclaim title;
neither did he admit that he had no title, but continued to assert that he was the owner of the
property, and this was the question he was seeking to review in the Supreme Court by his
appeal. Thus Doyle v. Hays does not support the position of Childers and Vrenon, who
disclaim title.
In Gibbons v. Cannaven, 395 Ill. 376, 66 N.E.2d 370, 377, 169 A.L.R. 1190, a statutory
action against an operator of a night club for damages for selling intoxicating liquor to a
person who, by reason of such intoxication, assaulted plaintiff, the owner and lessor of the
property sought to intervene and to appeal from the judgment. He claimed to be aggrieved by
the judgment because the statute permitted the judgment to be a lien upon the property,
enforceable by sale thereof. While much of the case deals with the statute itself and the
determination that it did not violate any constitutional guarantees, it is the strongest direct
answer coming to our attention, to the assertion that by the judgment in the instant case
Childers becomes liable upon his statutory implied warranty of title to Vrenon and Vrenon
becomes liable on his asserted written warranty of title to Bowler and that Vrenon will also
lose the $7,000 balance held in escrow out of the money advanced by Ronnow's clients for
the purchase of the cattle by the Bowlersthe payment of such money being subject to
various other commitments through the Sparks branch of the First National Bank of Nevada
and through the Fallon branch of the same bank. The Illinois Supreme Court said:
"[A]ppellants have no interest in the judgment against Cannaven.
[A]ppellants have no interest in the judgment against Cannaven. Their rights are not affected
by the suit in which the judgment was entered. While it is true that the judgment may be
made the basis for a suit to subject the property in which the liquor was sold to the payment
of the judgment, the rights and interests of appellants will only be affected by the suit to
enforce the judgment against the property. The court further said: The liability, if any,
against [appellants'] property, can and will accrue only under the decree in the subsequent suit
brought to enforce the lien, if and when that decree is entered. The effect of this opinion is
the stronger because, under the statute, there was not even a doubt that the judgment for
damages in the first suit would be binding and conclusive in the second suit. Many cases are
there reviewed as to the interest of a party in the subject matter to entitle him to appeal. His
interest must be such as to show that he takes or loses something directly by the judgment or
decree which he challenges. * * * [H]e must show a direct interest in the subject matter of the
litigation, which interest was prejudiced or aggrieved by the judgment sought to be reviewed.
* * * It is essential that it appear, either from the record or the assignment of errors, that they
were injured by the judgment, or will be directly benefitted by its reversal, or that they are
competent to release errors.
It is true that in Lane v. Ferre, 147 La. 796, 86 So. 186, 187, the court said: Moreover, as
it appears from the deed annexed to the motion to dismiss that plaintiff sold the property with
warranty of title, he has an appealable interest. However, no reason is stated for so holding,
and the only authority referred to is Simon v. Richard, 42 La.Ann. 842, 8 So. 629. The facts
in the latter case are complicated and difficult and the opinion itself is not entirely clear, but
we are unable to draw from it the rule enunciated.
Likewise in State ex rel. Race v. Cranney, 30 Wash. 594, 71 P. 50, the court said: If a
party has sufficient interest to make him a party to an action, he has sufficient interest to
appeal should the judgment be against him."
interest to make him a party to an action, he has sufficient interest to appeal should the
judgment be against him. But as in Lane v. Ferre, supra, no reason is given and no
authorities are cited. Such statements may indeed be in order where the circumstances justify
the application of the doctrine of estoppel, but no such circumstances appear here.
1. The rule of law upon which respondent relies is thus stated in 4 C.J.S., Appeal and
Error, sec. 180, p. 352: Parties who disclaim any interest in the subject matter in litigation
cannot appeal, where no costs are taxed against them, although an order is made denying a
petition to strike their names from the files; but this rule does not prevent a person from
appealing, although he has denied or disclaimed interest, if a personal or otherwise prejudicial
judgment or decree is nevertheless rendered against him, as in the case of a deficiency
judgment in a suit to foreclose a mortgage, and in other like cases.
The judgment in the present case, as noted, was simply for the return of the cattle by
Childers to Vrenon and by Vrenon to Mrs. Leonard. The costs and accounting awarded to
Mrs. Leonard were waived by her and are out of the case. The plaintiff did not seek and was
not awarded a judgment in the alternative. No money judgment of any kind is involved.
2. Treating then the situation as involving a defendant who had once owned an interest in
the property but whose interest in the subject matter of the action had ceased either before or
during the pendency of the action, the general rule is thus stated in the text. 4 C.J.S., Appeal
and Error, sec. 181: The general rule is that a party cannot prosecute an appeal or writ of
error to reverse a judgment, order, or decree, where his interest in the subject matter or
controversy has ceased, either before the suit was commenced or pendente lite, by
conveyance, sale, assignment, release, or operation of law, so that the judgment, order, or
decree does not prejudice him, although it may be erroneous and prejudicial to other
parties." This statement is supported by cases cited in note 21, id., from United States
district and circuit courts, Kentucky, Louisiana, Tennessee, Texas and Washington.
prejudice him, although it may be erroneous and prejudicial to other parties. This statement
is supported by cases cited in note 21, id., from United States district and circuit courts,
Kentucky, Louisiana, Tennessee, Texas and Washington. The text continues: However, it
has been held that, where a vendee or grantee pendente lite is not allowed to be made, or is
not made, a party, the vendor or grantor may appeal, although he has conveyed all his interest;
and there are certain other exceptional cases in which appeals or proceedings in error have
been sustained after a conveyance, sale, or assignment by appellant or plaintiff in error.
In support of the first clause above is cited Moore v. Jenks, 173 Ill. 157, 50 N.E. 698. In
that action Jenks had filed a cross bill to Moore's complaint for a mortgage foreclosure, in
which Jenks set up his ownership of a sheriff's certificate of sale to the property. Moore, in
answer to the cross bill, alleged Jenks' assignment thereof to Morgan & Wright and their
assignment to Woodland, that Woodland was the owner and that appellant had no longer any
interest in the property, and asking that Woodland be substituted. This was denied. Jenks
appealed from an adverse judgment and a motion was made to dismiss the appeal by invoking
the well known rule * * * that a party cannot assign as error that which does not affect him
or his rights but is prejudicial only to others, who do not complain. The court held that such
rule did not apply because the transfer was made pendente lite and the final decision would be
binding not only on the parties litigant but on those who derived title under them by
alienations made pending the suit; that Woodland, holding under Jenks, had important rights
at stake, that the decree set aside the certificate of sale of which he was the owner and for
which he had paid some $17,000 to redeem from a sale under a trust deed and that, whether
or not the court was correct in refusing to grant Woodland's petition to be made a party
defendant, it was apparent that the decree seriously affected his rights, and that accordingly
Jenks could prosecute the appeal as the representative of Woodland who held under him.
decree seriously affected his rights, and that accordingly Jenks could prosecute the appeal as
the representative of Woodland who held under him. An earlier Illinois case, Norris v. Ile,
152 Ill. 190, 38 N.E. 762, 43 Am.St. Rep. 233, is cited in support of this holding.
In support of the text statement in C.J.S. cited above to the effect that in other exceptional
cases appeals have been permitted after a conveyance, sale or assignment by the appellant,
cases are cited which have no application here. A typical example is that of a grantor taking a
purchase money mortgage back from his grantee. Another is where the property claimed by
appellant has been sold on foreclosure and he owns the equity of redemption. A cross
reference is made to sections 404 and following of the text involving statutory prosecution of
an action or an appeal after transfer either in the name of the original party or by substitution.
3. Appellants also rely on N.C.L., sec. 8561, which provides: An action shall not abate by
the death or other disability, of a party, or by the transfer of any interest therein, if the cause
of action survive or continue. * * * In case of any other transfer of interest, the action may be
continued in the name of the original party, or the court may allow the person to whom the
transfer is made to be substituted in the action. * * * No authorities are cited to support the
contention that this section authorizes Childers and Vrenon to appeal as aggrieved parties.
California, under a similar statute, has consistently held that this statute was for the benefit of
the transferee, and gave to the transferee only the option to proceed through himself or in the
name of his grantor. Under that section it was the right of the successors in interest in this
case to prosecute this action in one of these forms. The party who had transferred his interest
divested himself of any power to control the action. Tuffree v. Stearns Ranchos Co., 124
Cal. 306, 57 P. 69, 70, and cases therein cited. See also Cranmer v. Howard, 45 S.D. 136, 183
N.W. 124.
In the present case it is strongly urged that despite the transfers, the rights of Childers
and Vrenon, though not in the cattle themselves, will be seriously affectedas to Childers
because of his liability on an implied warranty of title, and as to Vrenon on his actual
warranty of title {besides the withholding of $7,000 of his purchase money), and that the
rights of the Bowlers will similarly be seriously affected because in the event of a
dismissal of the appeal the adjudication of title in Mrs.
the transfers, the rights of Childers and Vrenon, though not in the cattle themselves, will be
seriously affectedas to Childers because of his liability on an implied warranty of title, and
as to Vrenon on his actual warranty of title (besides the withholding of $7,000 of his purchase
money), and that the rights of the Bowlers will similarly be seriously affected because in the
event of a dismissal of the appeal the adjudication of title in Mrs. Leonard, both under the
divorce decree and under the judgment appealed from, will be asserted as binding against
them. We think that under the particular circumstances of this case neither Childers nor
Vrenon can successfully advance this position. The answers of both defendants in the district
court, as well as the evidence adduced by them in the district court, were a complete
justification of Mrs. Leonard's having made them both parties defendant. It was not until the
supplementary proceedings, through which Mrs. Leonard was attempting to obtain
information necessary to enable her to enforce her judgment, that Childers and Vrenon
disclaimed title. Milton D. Bowler and Milton A. Bowler were both called as witnesses at
those proceedings by Mrs. Leonard, and testified to their purchase from Vrenon of the
identical cows and bulls which Vrenon had purchased from Childers and which Childers had
purchased from Belanger. All of these sales, as noted above, were consummated within the
space of comparatively a few days, the first being July 31, 1948 and the latter sales in the
early part of August, 1948. The supplementary proceedings against Childers and Vrenon and
the prosecution of their appeal from judgment against them were pending at the same time,
and during approximately the same period the Bowlers were prosecuting their mandamus
against the sheriff to compel his return to them of the same cattle which the sheriff had seized
under the judgment and execution. The Bowlers avoided any participation in any proceeding
involving the issue of their title to the property. If we can assume their lack of knowledge of
the Belanger divorce suit in which Mrs.
which Mrs. Belanger was held to be the owner of the livestock, and if we can assume their
lack of knowledge of the commencement of her action against Childers and Vrenon, they
knew of the pendency of her action to recover these same cattle some seven or eight months
before her judgment was entered, and they were in full knowledge of the circumstances
through the supplementary proceedings in which they testified as witnesses. They made no
attempt to intervene to assert their title. Title was not an issue in the mandamus proceeding.
The vice of the sheriff's action there was in taking the cattle under process against Childers
and Vrenon to which the Bowlers were not parties, from the Bowlers, who claimed title and
right of possession. The Bowlers avoided an action to recover possession in which their rights
could have been tried. They avoided asking to be substituted for Childers and Vrenon in the
pending suit or in the appeal. Yet through the appearance of their counsel as amici curiae they
have injected themselves into the appeal while retaining the right to assert (with what success
we are not called on here to determine) that they are not bound either by the judgment in the
original action or by an affirmance thereof in this court or by the dismissal of the appeal
initiated by Childers and Vrenon.
It is clear that this situation is entirely different from that appearing in Moore v. Jenks or in
the various cases cited by appellants as exceptions to the general rule stated in the text and in
many cases cited by respondent.
In Hartford National Bank & Trust Co. v. Malcolm-Smith, 129 Conn. 67, 26 A.2d 234,
235, 140 A.L.R. 805, the trust company appealed from an action of the superior court erasing
from the docket an appeal from a decree of the probate court removing the plaintiff as trustee
of a testamentary trust. In support of its right to appeal as an aggrieved party, the trust
company claimed that the finding of the probate court that it had neglected its duty would be
res adjudicata should it be sued for damages for such fault, and that therefore it had a
pecuniary interest justifying the appeal.
had a pecuniary interest justifying the appeal. The decision turned on the court's conclusion
that the judgment would not be res adjudicata as regards the issues determined in it because
the person claimed to be bound by it would not have been a party to the first action in the
same capacity as that in the second (citing a Connecticut and a New York case) Where a
person is a party to one action solely as trustee, the judgment does not constitute res
adjudicata against him as to the issues therein determined in another action to which he is
party solely in his individual capacity (citing Connecticut, New York, Minnesota and
Tennessee cases and texts). The A.L.R. annotation of the case deals entirely with the right of
a trustee or an executor to appeal from a decree of removal and is not helpful.
On the present motion to dismiss the appeal both parties are rather canny in their
statements as to whether or not the judgment, decreeing ownership and right of possession of
the cattle to be in Mrs. Leonard in her suit against Childers and Vrenon, would be res
adjudicata in a subsequent action brought by Mrs. Leonard against the Bowlers for recovery
of the same cattle sold to them by Vrenon before the commencement of the present action.
Amici curiae state that in Mrs. Leonard's proposed action against the Bowlers (in the
supplementary proceedings she was given permission to commence such action) she will set
up as against them her alleged title under the divorce decree and under the present judgment.
She will contend that if, as this judgment states, Vrenon did not receive title, he could not
convey to the Bowlers, and that the questions involved in the appeal are thus important with
reference to the effect of the judgment upon the rights of third parties [the Bowlers]. Thus,
amici curiae do not definitely bind themselves by an admission that the judgment would be
res adjudicata in such subsequent suit against the Bowlers, but allege their belief that such
doctrine of res adjudicata would be asserted. Appellants also emphasize the implied warranty
of Childers and the express warranty of Vrenon to the Bowlers.
warranty of Vrenon to the Bowlers. This would have reference to the application of the
doctrine of res adjudicata in a subsequent suit by the Bowlers against Vrenon under Vrenon's
warranty and perhaps a further action by Vrenon against Childers, or against Valley Livestock
Company on the latter's warranty. Respondent characterizes the claim of such liability on the
warranties as an attempt of appellants to extricate themselves from the situation in which,
by their own showing, they have no present interest in the subject matter of the appeal. In
answer to the claim of amici curiae that Mrs. Leonard will contend that if Vrenon did not
receive title (so determined by the judgment) he could not convey title to the Bowlers,
respondent replies simply that she admires the astuteness of counsel for the Bowlers. So (1)
appellants have not asserted positively that the judgment would be res adjudicata in
subsequent actions against them on their alleged warranties, (2) amici curiae have not
asserted positively that the judgment would be res adjudicata in a subsequent action by Mrs.
Leonard against the Bowlers, and (3) respondent has not asserted definitely that the judgment
would not be res adjudicata in one or both of such subsequent suits. Each of the three parties
(the Bowlers are definitely seeking to protect their rights here, although their counsel appear
as amici curiae only) has definitely avoided any positive contention as to the application of
the doctrine of res adjudicata and has avoided submitting any authorities on the point. Yet in
Hartford National B. & T. Co. v. Malcolm-Smith, supra, the right of the trustee to appeal was
determined solely upon this ground.
Careful consideration has been given to other arguments, points and authorities presented
in the voluminous briefs of the parties, as well as to the four volumes of transcripts of the
four separate proceedings submitted as exhibits in connection with the motion to dismiss the
appeal. Such additional matters have not been overlooked, but we find a discussion of them
unnecessary.
Such discussion would result only in extending this already too long opinion and would not
alter the conclusions reached.
4, 5. We hold (1) that appellants Childers and Vrenon, by reason of their disclaimers of
title made under the circumstances herein recited, are neither such aggrieved parties, nor have
they such direct interest in the subject matter of the action or the appeal, as to permit them, or
either of them, to appeal from the judgment or from the order denying their motion for a new
trial; (2) that, under the circumstances appearing, respondent is not by mere reason of the fact
that she made appellants defendants in the action, estopped from moving to dismiss their
appeal; (3) that a possible claim of res judicata in a possible future action by Leonard against
Bowler, a possible suit of Bowler against Vrenon for breach of an alleged warranty of title, a
possible suit of Vrenon against Childers for breach of an alleged implied warranty of title, or
possible litigation growing out of an alleged escrow whereunder some $7,000 is said to be
withheld from Vrenon by Bowler's financial backers, cannot, nor can any of these
possibilities, remove the position of Childers or Vrenon from the effect of the general rule
and (4) that neither Childers nor Vrenon is authorized to prosecute the appeal by authority of
the provisions of N.C.L., sec. 8561.
The motion to dismiss the appeal is granted and the appeal is dismissed, with costs to
respondent.
Eather, J., concurs.
Horsey, Chief Justice (dissenting).
After having read carefully the opinion on motion to dismiss the appeal in the instant case,
ably expressed by Mr. Justice Badt and in which Mr. Justice Eather has concurred, I cannot
find myself sufficiently in agreement to justify concurrence, and, therefore, I am impelled to
dissent.
In view of the fact that the defendants, Childers and Vrenon, in the lower court were
made parties and sued by the plaintiff, Mrs.
Vrenon, in the lower court were made parties and sued by the plaintiff, Mrs. Leonard, and
that in such supplementary proceeding their interest as to 41 milk cows and 2 bulls, and for
accounting of the proceeds of the sale of milk and sales of certain calves from said cows
during the period of defendants' alleged unlawful possession of them, were involved, and in
which, by the judgment of the lower court, same were ordered to be returned, does not satisfy
me to hold that the motion to dismiss the appeal should be granted, without such appeal being
fully argued and determined by this court.
It is true that Childers and Vrenon, in the midst of the proceedings in the court below, were
led to admit affirmatively that, in effect, they had parted with their possession of said cattle,
and that, in effect, they had disclaimed title or possession of them. I do not believe, however,
that solely because of such disclaimer by Childers and Vrenon, that equitably and fairly such
acknowledged transfer of possession of the cattle from Belanger to Childers and then from
Childers to Vrenon, and their subsequent transfer from Vrenon to the Bowlers (the latter not
being parties to the proceeding) necessarily should have precluded, because of such transfer,
the determination of the other existing obligations that had arisen as to the several
transactions between these respective parties, and which, assuming that certain factors were
disclosed from the evidence at the proceeding, may properly, from a legal standpoint, justify
further consideration as between the rights of Mrs. Leonard and those of Childers and
Vrenon. Mrs. Leonard, formerly Mrs. Belanger, and Mr. Belanger were husband and wife,
and divorce was pending. A restraining order preventing Belanger from making sales of milk
from the cows and collecting the proceeds, had been released, and it may have been that
Belanger took advantage of such restraining order having been released, and may have
reported to Childers that he had authority, as agent for Mrs. Leonard, to sell such cattle to
Childers, and Childers may have believed him, and the transfer may have resulted.
resulted. Relying upon such representations, Childers orally warranted the cattle to Vrenon,
and Vrenon, by express warranty, transferred the cattle to the Bowlers. The rights of innocent
third persons may have been involved, and such may not have been fully determined in the
court below, and valid objection may have resulted, which should be further determined.
This justice has been fully occupied in writing opinions in other cases, and has not had an
opportunity fully to read and consider the evidence adduced in the court below in such
supplementary proceeding. Notwithstanding that fact, he feels impelled, in view of the
opinion of the majority of the justices of this court, that he not delay further the filing of the
majority opinion. It seems to me that in this proceeding, complicated as it is, and involving
serious conflicts of the evidence, that there should not be a dismissal of the appeal, but that,
on the contrary, equity and justice, in my opinion, require a full consideration of the appeal
upon its merits, particularly as to the questions of law involved.
On Petition for Rehearing
(On motion to dismiss appeal)
January 11, 1951.
Per Curiam:
Rehearing denied.
Reporter's Note: See also 68 Nev. ....., for opinion on motion to amend former decision.
____________
67 Nev. 604, 604 (1950) Merritt v. District Court
NATHAN L. MERRITT, Jr., Petitioner, v. FIRST JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Churchill, and the HONORABLE
CLARK J. GUILD, as Judge Thereof, Respondents.
No. 3627
September 25, 1950. 222 P.2d 410.
Original proceeding in prohibition by Nathan L. Merritt, Jr., against the First Judicial
District Court in and for the County of Churchill, and the Honorable Clark J. Guild, as judge
thereof, to prohibit named court from proceeding with a second trial under information
charging petitioner with grand larceny on ground that respondent court unlawfully discharged
jury impaneled to try cause and therefore petitioner had once been placed in jeopardy. The
Supreme Court, Eather, J., held that evidence that two jurors were overheard discussing trial
and expressed a preconceived opinion established that the declaring of a mistrial of cause by
the trial court was not error.
Peremptory writ denied and an alternative writ vacated. See also 66 Nev. 380, 212
P.2d 706.
1. Criminal Law.
Where, during grand larceny prosecution, district attorney moved for a mistrial on ground that two jurors
were overheard expressing a preconceived opinion and discussing matter, and witnesses testified as to
overhearing such statements, and a juror admitted such discussion took place, declaring mistrial of cause
was not error.
2. Criminal Law.
In criminal trials, public as well as accused have interest that should be safeguarded and protected, and
verdicts in these causes must be result of honest deliberation by individuals who are of a mind free from
bias and prejudice.
Royal A. Stewart, of Reno, for Petitioner.
Alan Bible, Attorney General, W. T. Mathews, Special Assistant Attorney General, George
P. Annand and Robert L. McDonald, Deputy Attorneys General, and James W. Johnson Jr.,
District Attorney of Churchill County, Fallon, for Respondents.
OPINION
By the Court, Eather, J.:
On May 15, 1950 petitioner was brought on for trial before respondent court upon an
information charging grand larceny. A jury was selected, testimony of several witnesses
adduced and the state rested. Before petitioner, defendant in said criminal proceedings had
concluded his defense the district attorney moved the court for an order declaring a mistrial.
The motion was supported by testimony of several witnesses and at the conclusion of the
hearing the respondent court over the objection of defendant, petitioner herein, entered its
order granting the motion, ordered a mistrial of the proceedings and discharged the jury.
Subsequently the petitioner, defendant in said action, moved the respondent court for an
order to withdraw his plea of not guilty and substitute the plea that he had once been in
jeopardy for the offense charged. Petitioner also moved to be discharged from custody on the
ground of former jeopardy. Both motions were denied.
As a basis for his application to this court for a writ of prohibition it is urged that
respondent court is without jurisdiction to proceed with a second trial under the same
information. Supporting this premise it is urged that respondent court unlawfully discharged
the jury impanelled to try the cause and therefore petitioner has once been placed in jeopardy.
Succinctly stated the question to be determined is whether or not the court, upon proof
submitted, and in the exercise of a sound discretion, committed error in ordering a mistrial
and discharging the jury. The official court reporter's transcript of the proceedings including
the testimony of witnesses is made a part of the petition and it now becomes necessary to
review this record.
The matter of the alleged disqualification of two members of the jury was called to the
court's attention by a motion made in open court by the district attorney, in words as follows:
Mr.
words as follows: Mr. Johnson (district attorney): At this time, if the court please, I am
forced, as much as I hate to, to move for a mistrial upon the grounds that two of the jurors
were overheard discussing the matter and that a preconceived opinion was expressed by them.
This matter has come to my attention and I feel that in all fairness to the accurate trial of the
case I must make the motion.
In support of the motion a witness testified that she was walking across the street in front
of the courthouse and overheard the following conversation between two men, whom she
later identified as two members of the jury. One juror said to the other juror, As far as I am
concerned he is innocent. The other juror replied, Me too. I don't give a damn how much
evidence they bring in. The two jurors participating in this conversation were called by the
district attorney to testify in support of the motion. One of the jurors testified as follows:
Q. Do you recall a conversation when somebody said, I believe he is innocent?' One of
the parties said that. The other one said, Me too. I don't give a damn how much evidence
they submit?' A. I remember that incident, yes.
Q. There was a discussion with respectA. Well, I think that's as far as it went.
And again the same juror involved testified:
Q. Well, the substanceI believe you testified just a moment ago that the other one
(juror) said something about he was innocent. He didn't give a damn how much evidence was
presented?
Mr. Stewart: Object to that. That is not the witness's testimony.
The Court: Me too, I don't give a damn how much evidence they put in.
Mr. Johnson: Q. He said that? The other fellow (juror) said that? A. I believe that
isthose are the words he used.
Q. And that is what he said. He was talking about this trial, was he? A. I presume that's
what he was talking about.
This same witness on cross-examination denied that the other juror had made the remarks
testified to by him on direct examination, but he did admit that the witness had stated As far
as I am concerned he is innocent.
The investigator for the district attorney's office was called as a witness and testified that
prior to convening court he was present in the Esquire Club at Fallon, Nevada, and heard a
conversation between these same two jurors as follows: Q. What was the substance of that
conversation? A. He was complaining about having to serve on the jury and he said, Of
course as far as I am concerned,' he says, Everybody knows it is a farce.'
In reference to this same conversation when one of these two jurors was accused, while
testifying of making this remark, he testified: I am afraid that if I remember correctly, that
George (other juror) is the one that said that.
1. Upon the whole record as made, and giving due consideration to the testimony of the
two jurors involved, their admissions and contradictions, we are of the opinion that the lower
court ruled correctly in declaring a mistrial of the cause.
To compel the state to submit the issue of guilt or innocence of a party to a jury where
some members thereof have designated the trial as a farce, or where a juror declares that the
defendant on trial is innocent and that he did not give a d how much evidence was
submitted, would be a travesty on the administration of justice.
2. In criminal trials the public as well as the accused have interests that should be
safeguarded and protected. Verdicts in these causes must be the result of honest deliberation
by individuals who are of a mind free from bias and prejudice. To rule otherwise would make
a farce of the proceedings.
farce of the proceedings. In re Ascher, 130 Mich. 540, 90 N.W. 418, 57 L.R.A. 806; State v.
Hansford, 76 Kan. 678, 92 P. 551, 14 L.R.A., N.S., 548, 38 A.L.R. 706.
There can be no doubt but what the showing made in reference to these two jurors and
their state of mind concerning the guilt or innocence of petitioner, warranted the respondent
court in the exercise of its discretion to discharge the jury and declare a mistrial.
Taking all the circumstances into consideration there was thereby presented to the lower
court a manifest necessity to act by discharging the jury; Otherwise * * * the ends of public
justice would * * * be defeated. State of Nevada v. Helm, 66 Nev. 286, 209 P.2d 187, 191;
Thompson v. U. S., 155 U.S. 271, 15 S.Ct. 73, 39 L.Ed. 146.
Petitioner further contends that in ruling on the motion the respondent court in its findings
does no more than conclude that the two jurors involved only violated the admonition of the
court; viz., not to discuss the case among themselves until it had been finally submitted to
them for decision, and therefore such finding was insufficient in law to support the order.
Petitioner frankly admits in his brief that at least some members of the jury had violated
the admonition of the court relative to discussing the case among themselves. The record
discloses no other or different discussions by members of the jury other than those quoted
herein.
Petitioner's principal objection to the court's order and his claim that the same is unlawful,
is based upon the assertion of the legal insufficiency of the reason (emphasis supplied)
assigned by the court therefor. Supporting this conclusion is the argument that the court based
its order not upon a finding of bias and prejudice of the jurors but the failure of the jurors to
comply with the admonition of the court in discussing the case before it was submitted to
them. The record of the proceedings clearly establishes that the motion made to the court
upon which the order was based was grounded upon a statement "that two of the jurors
were overheard discussing the matter and that a preconceived opinion was expressed by
them."
upon a statement that two of the jurors were overheard discussing the matter and that a
preconceived opinion was expressed by them.
In granting the motion the court stated: Ladies and gentlemen of the jury: There has been
directed to the attention of the Court a very serious matter this morning and the State has
moved in this case for a mistrial. Under all of the circumstances and the evidence that the
Court took in connection with the motion for a mistrial, I must in all fairness both to the State
and to the defendant, grant the motion, but before doing so I should like to say a word or two
to you. The court then proceeded to explain to the jury their responsibilities and duties as
good citizens and members of the jury. After which the court directed the clerk to enter the
order. In the court's remarks to the jury, parenthetically made, comment was made of the fact
that two members of the jury had violated the court's admonition and a mistrial would be
granted.
Prior to making these remarks the court had ruled that the order would be granted and in
granting the order it was motivated by a desire to be fair to defendant and state.
It is very apparent that it was the subject matter of the conversation between the two jurors
and their expressions of guilt or innocence of defendant and their mental conviction showing
bias that prompted the court to act, and not a violation of the court's admonition, as contended
by petitioner.
It is hardly necessary to suggest that the court could not sustain a finding that the remarks
were made by the jurors as testified, without finding the jurors had violated the court's
admonition in reference to not discussing the case.
Aside from the factual discussion, if it is assumed that the court was in error in the reasons
given for its action, nevertheless, if the order is correct and sustained by the evidence, as we
find it is, we would not be justified in sustaining the objections of petitioner. We conclude
that a proper application of the law to the facts demands an affirmance of the order.
that a proper application of the law to the facts demands an affirmance of the order. It is not
imperative that we lend approval to the mental processes of the trial court. Goldsworthy v.
Johnson, 45 Nev. 355, 204 P. 505, 507.
We therefore order that the peremptory writ be and the same is hereby denied and the
alternative writ vacated. No costs allowed.
____________
67 Nev. 610, 610 (1950) Graff v. Shipman Bros.
ARNOLD GRAFF, Plaintiff and Respondent, v. SHIPMAN BROS. TRANSFER CO., a
Partnership, and C. R. SHIPMAN and W. G. SHIPMAN, Partners, Associated in Business
Under the Common Name and Style of SHIPMAN BROS. TRANSFER CO., Defendants and
Appellants.
No. 3614
September 27, 1950. 222 P.2d 497.
Action by Arnold Graff against Shipman Bros. Transfer Co., a partnership, and others to
recover for loss of sheep allegedly resulting from negligent operation of a tractor and trailer.
The Seventh Judicial District Court, White Pine County, Harry M. Watson, Judge, entered
judgment for plaintiff and defendants appealed. The Supreme Court, Horsey, C. J., held that
appeal should be dismissed for failure to serve and file a bill of exceptions within the time
prescribed by statute and failure to perfect transcript of record on appeal within time
prescribed by Supreme Court rule.
Appeal dismissed.
1. Exceptions,Bill of.
Bill of exceptions consisting of transcript of proceedings in trial court certified by court reporter need not
be allowed or settled by trial court. N.C.L.1931-1941 Supp., sec. 9385.81(1).
The time fixed by statute within which a bill of exceptions must be served and filed is mandatory and
jurisdictional and cannot be extended, even upon stipulation by counsel or by the court, after the time
to serve and file such bill of exceptions has expired. N.C.L.1931-1941 Supp., sec.
court, after the time to serve and file such bill of exceptions has expired. N.C.L.1931-1941 Supp., sec.
9385.81.
Documents, which trial judge properly refused to settle as bills of exceptions because they were in
narrative form and not prepared under modern practice, must be deemed void, and a new or amended bill
of exceptions could not be served and filed after expiration of time, as extended by stipulation, within
which to proceed in regard to appeal. N.C.L.1931-1941 Supp., sec. 9385.81.
Failure to serve and file bill of exceptions as prescribed by statute required dismissal of appeal.
N.C.L.1931-1941 Supp., sec. 9385.81.
Where stipulation extending time within which to proceed in regard to appeal included therein the matter
of bill of exceptions consisting of reporter's transcript of proceedings at trial, appellants were not required
to proceed to perfect appeal until expiration of such extension of time and appellants had 30 days thereafter
in which to cause transcript of the record on appeal to be filed. Rules of supreme court, rules 2, 11;
N.C.L.1929, sec. 8829; N.C.L.1931-1941 Supp., secs. 9385.81, 9385.88.
The supreme court rule relating to perfecting the record on appeal is mandatory but not always
jurisdictional. Rules of the supreme court, rule 2.
Where appellants relied on bill of exceptions consisting of reporter's transcript of proceedings at trial as
constituting part of the record on appeal, and not upon the judgment roll alone or separately, and record on
appeal had not been perfected and no reason for further delay was shown, though more than two years had
elapsed since expiration of time prescribed by supreme court rule for perfecting such record, appeal must
be dismissed. Rules of supreme court, rule 2; N.C.L.1929, sec. 8829; N.C.L.1931-1941 Supp., secs.
9385.81, 9385.88.
Robert R. Gill, of Ely, for surviving Appellant.
Gray & Horton, of Ely, for Respondent.
OPINION
This is on motion to dismiss the appeal of the appellants in the above-entitled action.
The respondent, Arnold Graff, by his attorneys, Messrs. Gray and Horton, in his notice of
motion to dismiss such appeal, has stated his grounds for such motion as follows:
1. That no transcript of the record on appeal has ever been filed with the Clerk of the
above entitled Court as prescribed by Rule II of the Rules of the Supreme Court.
2. That no Bill of Exceptions has ever been served and filed as prescribed by Section
9385.81, Nevada Compiled Laws Supplement, 1931-1941.
3. That no Points and Authorities or Brief has been filed and served with the Clerk of the
above entitled Court as prescribed by Rule XI of the Rules of the Supreme Court.
In the notice of motion, following the above grounds therefor, it is stated that:
Upon the hearing of this motion, Plaintiff below, Respondent here, will rely upon the
following, to-wit:
1. Exhibit A'Judgment Roll
A. Complaint
B. Answer
C. Demurrer
D. Order
E. Amended Answer and Counterclaim
F. Reply
G. Verdict
H. Judgment by Clerk Upon Verdict
I. Clerk's Certificate to Judgment Roll
2. Exhibit B'Affidavit of C. E. Horton
3. Exhibit C'Certificate of F. D. Oldfield
4. Exhibit D'Notice of Intention to Move for a New Trial
5. Exhibit E'Notice of Decision
6. Exhibit F'Stipulation
7. Exhibit G'Notice of Appeal
8. Exhibit H'Undertaking on Appeal
9. Exhibit I'Stipulation
Certain factual and legal situations must be considered in order properly to resolve and
determine the basic grounds of the motion to dismiss the appeal.
in order properly to resolve and determine the basic grounds of the motion to dismiss the
appeal. Briefly stated, the cause of action as alleged in the complaint discloses: That Plaintiff
is informed and believes and, therefore, alleges the fact to be, that as the proximate result of
said careless, negligent, reckless and unlawful conduct of said Defendants, the said
Defendants, by and through their said agent, servant and employee, the said R. H. Van Pool,
negligently, carelessly, recklessly and unlawfully operated and drove the said Kenworth
Tractor and Trailer into, upon, over and against the said herd of sheep with great force and
violence, and whereby and by reason whereof, and as the proximate result of said negligent,
reckless, careless and unlawful conduct of said Defendants, as aforesaid, One Hundred
Sixty-four (164) head of ewes, heavy with lambs, and ten (10) yearling ewes, belonging to
said Plaintiff, were killed or died as the proximate result of the acts of the said Defendants, as
herein complained of.
In paragraph XI of the complaint, filed January 26, 1946, it was, in substance, alleged that
the 164 head of ewes, heavy with lambs, at said time and place, were of the value of $17 per
head, that there was a ready market for such ewes, and that the same could have been sold for
such price, at said time and place, and that, at said time and place, nine of the yearling ewes
would have found a ready market and could have been sold for the price of $14 per head.
Then follows the concluding paragraph of said paragraph XI, as follows: That by reason of
the premises, and of the things and matters herein mentioned, and by reason of said
carelessness, negligence, recklessness and unlawful conduct of said Defendants, as aforesaid,
Plaintiff has been damaged in the sum of Two Thousand Nine Hundred Twenty-eight Dollars
($2928.00), which was followed by the prayer, which prayed judgment against the
defendants, and each of them, in the sum of $2,928, costs of suit and for such other and
further relief as was meet and proper in the premises.
Upon further pleadings and proceedings having occurred, and the case having become at
issue, the action, as shown by the certified copy of the judgment roll, certified on the 4th day
of April, 1950, by F. D. Oldfield, clerk, was brought to trial on the 20th day of May, 1947, by
a jury. Upon the conclusion of such jury trial, the jury, on said 20th day of May, 1947, found,
by their verdict, in favor of the plaintiff and against the defendant, and assessed the plaintiff's
damages at $2,590.
On the following day, May 21, 1947, the said F. D. Oldfield, clerk, entered judgment in
favor of said plaintiff in accordance with said verdict, together with the costs and
disbursements of this action taxed and allowed at the sum of Fifty-seven and 50/100 Dollars
making a total judgment of Two Thousand six hundred & forty-seven & 50/100 Dollars.
(See copy of Judgment by Clerk upon Verdict, No. 5079, and constituting part of said
judgment roll.)
As disclosed by the affidavit of said C. E. Horton, exhibit B, in the motion to dismiss the
appeal, said affiant, among other things, has stated the following:
That on the 20th day of May, 1947, the jury sitting at the trial of the above entitled case
and cause found a verdict in favor of the above named Plaintiff-Respondent and against the
above named Defendants-Appellants;
That judgment upon said verdict was entered by the Clerk of the Court on the 21st day of
May, 1947;
That thereafter and on the 26th day of May, 1947, said Defendants-Appellants, acting by
and through their attorney, Robert R. Gill, Esq., filed Notice of Intention to Move for a New
Trial;
That on the 2nd day of June, 1947, the Court denied the motion for a new trial on all
grounds set forth in said Notice of Intention to Move for a New Trial;
That on the 16th day of July, 1947, said Defendants-Appellants filed with the Clerk of the
Seventh Judicial District Court of the State of Nevada, in and for the County of White Pine,
their Notice of Appeal from the said judgment entered on the said 21st day of May, 1947, and
from the order of the Lower Court entered on the 2nd day of June, 1947, denying the
motion for a new trial;
and from the order of the Lower Court entered on the 2nd day of June, 1947, denying the
motion for a new trial;
That on the said 16th day of July, 1947, the said Defendants-Appellants filed with the
Clerk of said Lower Court their Undertaking on Appeal;
That the last stipulation extending time within which to proceed in regard to the appeal
herein signed by counsel for said Plaintiff-Respondent and Defendants-Appellants
respectively, was under date of July 25, 1947, whereby the time was extended to and
including the 28th day of August, 1947, within which to object to the allowance and
settlement or otherwise proceed in regard to certain papers served by counsel for
Defendants-Appellants;
That the time within which the said Defendants-Appellants could file a transcript of
record herein has heretofore expired;
That the time within which the said Defendants-Appellants could serve and file a Bill of
Exceptions herein has heretofore expired;
It is conceded and agreed by both parties that the appellants' counsel, on July 22, 1947,
served and filed what purported to be three bills of exceptions. One of such bills of
exceptions was served by appellants' counsel, Robert R. Gill, Esq., and served upon counsel
for respondent, Messrs. Gray and Horton, and which did not require settlement, for the reason
that said bill of exceptions consisted of the court reporter's transcript of the proceedings in the
court below, such court reporter having been duly appointed by the honorable district judge of
the Seventh judicial district, in and for the county of White Pine, and duly authorized to serve
in taking such testimony and to certify to same under authority of law.
In section 9385.81, Nevada Compiled Laws Supplement, 1931-1941, in the second
paragraph of said section, is the following provision:
Transcript of Proceedings may Constitute Bill of Exceptions.
Exceptions. Bills of exceptions shall be made up and prepared as follows, and not otherwise:
(1) A transcript of the proceedings, certified by the court reporter, appointed by the court,
under authority of law, or by agreement of the parties, to be a full, true and correct transcript
thereof, may be served and filed, and when so filed shall be and constitute the bill of
exceptions of the proceedings relating to the point or points involved, as therein set forth,
without further stipulation or settlement by the court; provided, however, that on motion duly
noticed, the court may at any time correct any error in such transcript by appropriate
amendment thereto. (Emphasis added.)
In paragraph (a), page 2, of appellant's points and authorities, appellant has stated, on lines
22 to 24 thereof, the following: One bill of exceptions, the reporter's transcript of
proceedings on the trial, certified by her and requiring no settlement, was served and filed on
July 22, 1947, * * *. (Emphasis added.)
On page 2 of Surviving Appellant's Points and Authorities on Opposition to Motion to
Dismiss Appeal, on line 20 1/2 to and including line 31, we quote the following:
Point 2:
(a) One bill of exceptions, the reporter's transcript of proceedings on the trial, certified by
her and requiring no settlement, was served and filed on July 22, and two other proposed bills
of exceptions were served and filed on the same date. (Respondent's Exhibit I' on Notice of
Motion to Dismiss Appeal.) These were under consideration on motion to strike from August
1, 1947, to March 22, 1949. They were not stricken, but settlement was refused. Writ of
Mandate to compel settlement was applied for under date of April 29, 1949. (Shipman v.
Watson, No. 3580 in this Court [67 Nev. 74, 214 P.2d 155]).
Further consideration hereinafter will be given to the other matters presented in said point
2 on pages 2 and 3 of said Surviving Appellant's Points and Authorities on Opposition to
Motion to Dismiss Appeal," but it seems advisable now to refer to and quote at length
from Shipman v. Watson, 67 Nev. 74
on Opposition to Motion to Dismiss Appeal, but it seems advisable now to refer to and
quote at length from Shipman v. Watson, 67 Nev. 74, 214 P.2d 155, to and including page
158. The opinion was written by the Honorable Frank McNamee, district judge, and
concurred in by Horsey, C. J., and Badt, J., and, omitting footnote 2, on pages 156 and 157 of
said 214 P.2d, accompanying the text and consisting entirely of the provisions of the statute,
section 9385.81, Nevada Compiled Laws Supplement, 1931-1941, which is stated verbatim
therein, the text of District Judge McNamee's said opinion is as follows:
By this proceeding in mandamus the petitioner seeks to compel the trial court to settle
certain proposed statements as Bills of Exceptions.
After a jury trial, resulting in a money judgment in favor of respondent, petitioner in
proper time served and filed three purported bills of exceptions. One consists of the reporter's
official transcript of the trial proceedings which requires no settlement by the court and with
which we are not now concerned. The other two are instruments in narrative form relating to
orders of the trial court made before and after the trial. The respondent moved to strike these
last two instruments. Their nature and the reason the trial judge refused to settle them as bills
of exceptions appear from the District Judge's decision on the said motion to strike, which
reads in part as follows: Defendants having filed in addition to reporter's transcript two
separate purported bills for settlement, both in extended narrative form, and the matter having
been submitted on plaintiff's motion to strike the latter purported bills of exception.
And the Court giving consideration to the motion to strike as timely objections and
without passing on the propriety of such motion in proper case is of the opinion that such bills
of exception in narrative form, in such great detail, and bringing to the attention of the
Supreme Court only the party's version of the proceedings, rulings, objections and exceptions,
should, we think, be frowned upon, particularly in a reported case; even where party has
properly preserved his right to the alternative form of bill of exceptions, which is doubtful
here; and where by long history of practice in our State proper matters for consideration
of the Supreme Court, which are outside the judgment roll are, and we think should be,
brought to the attention of the Supreme Court in a bill of exceptions by certification of the
Clerk of the papers, orders and minutes which may properly be certified, and other
pertinent matters be brought to the attention of the Supreme Court briefly, concisely and
accurately, which by stipulation of counsel or by determination of Court might be signed
as a proper bill of exceptions, presenting for consideration motions, objections, rulings
and exceptions.
be frowned upon, particularly in a reported case; even where party has properly preserved his
right to the alternative form of bill of exceptions, which is doubtful here; and where by long
history of practice in our State proper matters for consideration of the Supreme Court, which
are outside the judgment roll are, and we think should be, brought to the attention of the
Supreme Court in a bill of exceptions by certification of the Clerk of the papers, orders and
minutes which may properly be certified, and other pertinent matters be brought to the
attention of the Supreme Court briefly, concisely and accurately, which by stipulation of
counsel or by determination of Court might be signed as a proper bill of exceptions,
presenting for consideration motions, objections, rulings and exceptions.
Feeling that the two purported bills of exception are not properly bills of exceptions in
view of the foregoing, and giving consideration to the motion to strike as objections thereto, it
is the Decision of the Court that we cannot settle and sign the same as a bill of exceptions.'
The Nevada legislature by Section 9385.81, Nevada Compiled Laws, Supplement
1931-41 has provided in detail the manner of making up and preparing bills of exceptions.
The transcript of proceedings certified by the court reporter together with all other
matters, exhibits, motions, papers, or orders, to be incorporated therein, may be served and
filed, subject to settlement, as a bill of exceptions. Or, as an alternative, a bill of exceptions
may consist of the point of exception particularly stated, delivered to the judge in writing or
written down by the clerk.
There is nothing in the statutes limiting the number of bills of exceptions a party may file,
but N.C.L.1931-41 Supp. 9385.84 expressly provides that bills of exceptions must be
prepared, served and filed as provided by the act relating thereto and not otherwise.
It is respondent's contention that the two proposed bills of exceptions in narrative form have
not been prepared according to the statutory requirements and that therefore his action
refusing to settle them as bills of exceptions was proper. With this we agree.
These questioned documents narrate certain proceedings of the trial court which are
assigned as error, but nowhere does it appear that petitioner, as required by statute,
particularly stated his exception to the court's rulings complained of, either by a writing
delivered to the judge or by having them written down by the clerk.
The obvious purpose of such statutory requirement is to furnish the court an opportunity
to make the point of the exception conformable to the truth, some time during and before the
conclusion of the trial, and while the facts are fresh in mind. For counsel, intending to rely on
the alternative method of preparing a bill of exceptions, merely to object to or except to a
ruling of the court without giving any reason therefor and without stating the point of the
objection with particularity, or for him to remain silent after an adverse ruling, affords the
court no opportunity to make and preserve a true and complete record of that specific court's
action which might later be asserted as an assignment of error in a bill of exceptions prepared
under the said alternative method.
We conclude that the two documents offered to the trial judge for settlement as bills of
exceptions long after the happening of the events complained of, and consisting of
assignments of error based only on petitioner's version in narrative form of the proceedings
below, which at that late date could not, with any guarantee of certainty, be made complete
and accurate and in conformity with the truth, were not prepared, served and filed as provided
by law, and, therefore, it was not incumbent upon the trial judge to settle and sign the same as
a bill of exceptions.
The petition for a writ of mandate is denied.
The opinion speaks for itself. The two bills of exceptions, as before stated, were filed July
22, 1947. A stipulation dated July 25, 1947 and signed by attorneys for the respective parties,
on that same date, provided:
that plaintiff have to and including the 28th day of August, 1947, within which to object
to the allowance and settlement or otherwise proceed, in regard to the hereinafter described
papers, served upon plaintiff on the 22nd day of July, 1947, by Robert R. Gill, attorney for
above named defendant. Said above described papers are as follows:
1. Transcript of Proceedings herein
2. Bill of Exceptions to Order Denying Motion for a New Trial
3. Bill of Exceptions to Order of Court Striking Defendant's Notice of Demand For
Security for Costs, Striking Certain Matter From Answer And Striking Matter Constituting
Counterclaim From Amended Answer and Counterclaim
1. Apparently in the above-mentioned stipulation, the inclusion of the reporter's
Transcript of Proceedings was inadvertent, both parties in the instant motion to dismiss the
appeal having, as we have hereinbefore stated, clearly set forth (and such is the law) that, as
to the first of the three bills of exceptions, to wit, the reporter's transcript of proceedings,
same did not require allowance or settlement. And, as pointed out by the Honorable Frank
McNamee, district judge, in his said opinion in Shipman v. Watson, Supra, 67 Nev. 74, on
page 156 of 214 P.2d: One consists of the reporter's official transcript of the trial
proceedings which requires no settlement by the court and with which we are not now
concerned. The other two are instruments in narrative form relating to orders of the trial court
made before and after the trial. The respondent moved to strike these last two instruments.
And we repeat the learned district judge's statement in the last paragraph of his opinion, 67
Nev. 74, on page 15S of 214 P.2d, as follows: "We conclude that the two documents
offered to the trial judge for settlement as bills of exceptions, long after the happening of
the events complained of, and consisting of assignments of error based only on
petitioner's version in narrative form of the proceedings below, which at that late date
could not, with any guarantee of certainty, be made complete and accurate and in
conformity with the truth, were not prepared, served and filed as provided by law, and,
therefore, it was not incumbent upon the trial judge to settle and sign the same as a bill
of exceptions."
page 158 of 214 P.2d, as follows: We conclude that the two documents offered to the trial
judge for settlement as bills of exceptions, long after the happening of the events complained
of, and consisting of assignments of error based only on petitioner's version in narrative form
of the proceedings below, which at that late date could not, with any guarantee of certainty,
be made complete and accurate and in conformity with the truth, were not prepared, served
and filed as provided by law, and, therefore, it was not incumbent upon the trial judge to
settle and sign the same as a bill of exceptions.
Referring now to the Surviving Appellant's Points and Authorities on Opposition to
Motion to Dismiss Appeal, on pages 2 and 3 thereof, and resuming our consideration of
appellant's allegations or statements of fact therein, immediately after the parentheses and the
title, Shipman v. Watson, No. 3580 in this court, we note, commencing on line 31, page 2,
and to and including line 8 on page 3, the following:
The application was denied on or about February 1, 1950, and Petition for Rehearing
denied March 2, 1950. Four days later Notice of Motion for leave to withdraw Reporter's
Transcript from the clerk's files for use in the preparation of a new (or amended) bill of
exceptions was served and filed in the court below. (Exhibit 2 to Objections to Motion to
Dismiss Appeal, etc.) The statements made under Respondent's Point II are therefore not in
accordance with facts.
(b) Failure to file a bill of exceptions in time, if there had been such, would not be a
ground for dismissal of appeal.
We must bear in mind that, as to the two bills of exceptions fully treated in Shipman v.
Watson, supra, and as shown now in the present proceeding in relation to the motion to
dismiss the appeal, and particularly in the above-mentioned stipulation (Exhibit I)
appended to said motion to dismiss, the time within which to object to such allowance and
settlement of said bills of exceptions expired on August 2S, 1947, and, apparently, no
further extension of time in which to do so was requested.
exceptions expired on August 28, 1947, and, apparently, no further extension of time in
which to do so was requested.
As Mr. Gill, attorney for appellant, has pointed out above, in said Surviving Appellant's
Points and Authorities on Opposition to Motion to Dismiss Appeal, in lines 27 and 28, page
2, such two bills of exception were under consideration on motion to strike from August 1,
1947 to March 22, 1949, which latter date was, of course, long after August 28, 1947, at
which time such stipulation had expired.
2. This court has repeatedly held that under our statutes, and particularly under the
provisions of section 9385.81, Nevada Compiled Laws Supplement, 1931-1941, and
subsequent sections of the Nevada Civil Practice Act which relate to new trials and appeals,
the time within which a bill of exceptions must be served and filed is mandatory and
jurisdictional, and the time cannot be extended, even upon stipulation by counsel, or by the
court, after the time to serve and file such bill of exceptions has expired. See Craig v. Harrah,
65 Nev. 294, 195 P.2d 688, in which, on page 300 of 65 Nev., page 690 of 195 P.2d, it is
stated: The defendant, by his above mentioned motion, filed June 10, 1948, for an extension
of time within which to file bill of exceptions, and addressed to this court, seeks relief from
us at a time more than four months after the expiration, on February 5, 1948, of his statutory
time of twenty days allowed for that purpose. To be of any avail to defendant, such relief
would necessarily have to relate back to a time prior to the expiration of his statutory time, on
February 5th. This court, obviously, has no jurisdiction to grant such extension to operate
retroactively. The statutory provision fixing the time within which bills of exceptions may be
filed has been repeatedly held to be mandatory and jurisdictional.
We cite, also, Johnson v. Johnson, 54 Nev. 433, 22 P.2d 128; Comstock Phoenix Mining
Co. v. Lazzeri, 55 Nev. 421, 36 P.2d 360; Dillon v. Dillon, 67 Nev. 428, 220 P.2d 213;
Blouin v. Blouin, 66 Nev. 137
220 P.2d 213; Blouin v. Blouin, 66 Nev. 137, 206 P.2d 608.
3, 4. It is clearly obvious that appellant, in line 31 on page 2, to and including line 5 on
page 3, of Surviving Appellant's Points and Authorities on Opposition to Motion to Dismiss
Appeal, has insisted upon his right to the effect that this court should sanction or approve the
request of appellant in the court below for leave to withdraw Reporter's Transcript from the
clerk's files for use in the preparation of a new (or amended) bill of exceptions * * *, and
which request was, and is, entirely untenable. Such alleged two bills of exceptions were
served and filed July 22, 1947, and within the thirty days required after the judgment of July
2, 1947. But such two bills of exceptions, being in narrative form and not prepared under
modern practice, were insufficient, ineffective and futile, and must be deemed void, in view
of the decision in Shipman v. Watson, supra, and any effort to permit the serving and filing of
any new or amended bill of exceptions at that late date (four days after March 2, 1950), or at
any time after the expiration of said stipulation, on August 28, 1947, was, and is, untenable,
and cannot be sanctioned or approved, in view of the former expressions of this court upon
the question involved.
Referring again to the Notice of Motion to Dismiss Appeal, and particularly to
respondent's alleged ground 2, which is stated, on pages 1 and 2 of said motion, to be that no
Bill of Exceptions has ever been served and filed as prescribed by section 9385.81, Nevada
Compiled Laws Supplement, 1931-1941, we find that said ground is well taken and must be
sustained.
We will next refer briefly to ground 1 of said Motion to Dismiss Appeal, and which has
before been copied in this opinion, but for convenience, will be repeated. Such ground 1 is:
1. That no transcript of the record on appeal has ever been filed with the Clerk of the above
entitled Court as prescribed by Rule II of the Rules of the Supreme Court. (See page 1, line
28 1/2 to and including line 31, of notice of motion to dismiss appeal).
including line 31, of notice of motion to dismiss appeal).
This court, for the clearly obvious reasons above-mentioned in this opinion, is unable to
consider further, as has been hereinabove indicated, the two bills of exceptions which
required settlement, and as to which settlement failed, by virtue of the action taken by the
Honorable Harry M. Watson, district judge, in the court below, and affirmed by this court in
Shipman v. Watson, supra.
In relation to the first, or bill 1, of the three bills of exceptions to which reference has
repeatedly been made, such bill of exceptions was, as aforesaid, served and filed July 22,
1947, and no allowance or settlement was required.
Apparently by inadvertence, in another connection such first bill, which consisted entirely
of the reporter's transcript of the proceedings, was incorporated in the above-mentioned
stipulation filed July 25, 1947, and by which the time for allowance and settlement was, in
effect, extended, as to all of the said three bills of exceptions, to August 28, 1947. No further
extension, as hereinbefore stated, occurred.
From Exhibit C, designated Certificate of F. D. Oldfield, attached or appended to
respondent's Notice of Motion to Dismiss Appeal, we quote, verbatim, the body of such
certificate, which is in words and figures as follows:
State of Nevada, ss.
County of White Pine.
This is to certify that the undersigned, F. D. Oldfield, is now and for many years last past
has been the duly elected, qualified and acting County Clerk of White Pine County, State of
Nevada, and ex-officio Clerk of the Seventh Judicial District Court of the State of Nevada in
and for the County of White Pine; That he, as aforesaid, was said County Clerk and ex-officio
Clerk during the period January 26, 1946, being the date upon which action was instituted by
Arnold Graff as Plaintiff against Shipman Bros. Transfer Co., a Partnership, and C. R.
Shipman and W. G. Shipman, Partners, associated in business under the common name
and style of Shipman Bros.
Shipman Bros. Transfer Co., a Partnership, and C. R. Shipman and W. G. Shipman, Partners,
associated in business under the common name and style of Shipman Bros. Transfer Co. as
Defendants, being Case No. 5079, to the date hereof;
That Robert R. Gill, Esq., is now and has at all times during the prosecution of said Case
5079 been the attorney of record for said Defendants;
That at no time between the said date of January 26, 1946, to the date hereof have said
Defendants or either of them or the said Robert R. Gill, Esq., attorney for said Defendants,
requested the undersigned, F. D. Oldfield, Clerk as aforesaid, to prepare the transcript of the
record on appeal in said case No. 5079.
Dated this 4th day of April, 1950.
F. D. Oldfield
Clerk of the Seventh Judicial District Court State
of Nevada, County of White Pine
Subscribed and sworn to before me this 4th day of
April, 1950.
Barbara Brandis
Notary Public
My Commission Expires: 11-3-53
In the case of Roberts v. Roberts, 63 Nev., pages 459 to and including 463, 174 P.2d 611,
the opinion was written by Mr. Justice Eather. It appears advisable, in order to show the close
similarity between that case and the instant case, to copy Mr. Justice Eather's opinion in full,
same being as follows:
This matter is before the court on the motion of respondent to dismiss the appeal in the
above-entitled matter. The principal ground of the motion is that no transcript of the record
on appeal has ever been filed with the Clerk of this Court as prescribed by Rule II of the rules
of the supreme court.
Briefly stated the facts are as follows:
On the 30th day of September, 1943, the Eighth Judicial District Court of the State of
Nevada, in and for the County of Clark, Case No.
for the County of Clark, Case No. 17847, made and entered a final judgment of divorce in
favor of Respondent herein and against Appellant, on the ground of extreme cruelty. Written
notice of decision of said case was duly served upon the attorney for the Appellant on
October 1st, 1943.
A motion for a new trial was subsequently made by the Defendant, Appellant herein, and
on October 22nd, 1943, the lower court denied said motion for a new trial.
On December 15th, 1943, the defendant, Appellant herein, filed with the Clerk of the
Eighth Judicial District Court of the State of Nevada, in and for the County of Clark, a Notice
of Appeal to the above-entitled court from the final judgment and the whole thereof and each
and every part thereof made and entered on the 30th day of September, 1943, and also from
the order of the lower court denying the defendant's, Appellant herein, motion for a new trial
made and entered by the lower court on October 22nd, 1943.
The Notice of Appeal was signed by the defendant, Appellant herein, in Propria Persona.
An undertaking on Appeal was duly served and filed with the Clerk of the Lower Court.
No further proceedings were taken by the defendant, Appellant herein, in connection
with the perfection of said appeal.
Under the law, where Notice of Appeal is given and the proper undertaking on appeal is
filed with the Clerk of the lower court to the Supreme Court, the lower court is divested of
any further jurisdiction in the case and jurisdiction of said case is taken over by the Supreme
Court.
Therefore, for the purpose of making the motion to dismiss the appeal in the Supreme
Court, the Respondent herein caused a certified copy of the Judgment Roll, the original
Notice of Appeal and the Undertaking on Appeal to be filed in the above-entitled court,
together with a certificate by the Clerk of the lower court setting forth no request for
transcript was ever made by the Appellant in the lower court and that the only papers in
connection with the appeal were the Notice of Appeal and the Undertaking on Appeal.'
certificate by the Clerk of the lower court setting forth no request for transcript was ever
made by the Appellant in the lower court and that the only papers in connection with the
appeal were the Notice of Appeal and the Undertaking on Appeal.'
Notice of motion to dismiss the above appeal, with affidavit in support thereof, was duly
served upon the appellant.
Rules II and III of the Supreme Court of the State of Nevada provide as follows:
Rule II. 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.
Rule III. 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.'
No request to the Clerk of the lower Court to prepare a transcript was ever filed and no
proceeding for a bill of exceptions or transcript was ever instituted by appellant herein, as set
forth in the Clerk's Certificate on Motion to Dismiss Appeal on file herein.
Counsel for respondent filed his Points and Authorities, and the motion was set for
hearing. At said hearing counsel for respondent appeared. No appearance was made for
appellant.
Counsel for respondent urged that the case stand submitted on his motion and
Memorandum of Points and Authorities; and, no good cause appearing why such should
not be the order, an order was entered accordingly.
and Authorities; and, no good cause appearing why such should not be the order, an order
was entered accordingly.
We are of the opinion that the motion is well taken. Neither of the requirements
mentioned was complied with by appellant. To relax the rules would amount to their
nullification.
No excuse is presented for the failure to have the transcript presented in this court within
the time required by Supreme Court Rules II and III. We do not deem it necessary to enter
upon a discussion of the case. This court, in numerous cases, has had occasion to hold that a
Mandatory Rule of Court not unreasonable nor in conflict with statute, has the same force and
effect as a statute and is binding; that its observance is obligatory on the court and should be
binding and obligatory upon litigants as any other rule of civil conduct. Lightle v. Ivancovich,
10 Nev. 41; Young v. Updike, 29 Nev. 303, 89 P. 457; Collins v. Nat C. Goodwin & Co., 32
Nev. 342, 108 P. 4; Beco v. Tonopah Ext. Min. Co., 37 Nev. 199, 141 P. 453; Ward v.
Pittsburgh Silver Peak Gold Min. Co., 39 Nev. 80, 148 P. 345, 153 P. 434, 154 P. 74; State v.
Second Judicial District Court, 48 Nev. 459, 233 P. 843; American Sodium Co. v. Shelley et
al., 51 Nev. 26, 267 P. 497; Sullivan v. Nevada Industrial Comm., 54 Nev. 301, 14 P.2d 262;
Baer v. Lilenfeld, 55 Nev. 194, 28 P.2d 1038. Therefore the motion to dismiss must prevail.
Appeal dismissed.
We see no material differences, either in fact or law, in the Roberts case as compared to
those in the instant proceeding. In the Roberts case, supra, on the motion to dismiss the
appeal, respondent filed his points and authorities, and the motion was set for hearing, and at
said hearing counsel for respondent appeared, and no appearance was made for appellant. On
the other hand, in the instant case, upon the motion to dismiss the appeal, the appellant and
the respondent, respectively, filed their respective points and authorities.
filed their respective points and authorities. By stipulation, the respective parties have
thereafter agreed that the motion to dismiss the appeal be submitted without a hearing of
argument in this court. Such difference is not important and is entirely immaterial in relation
to same having any material bearing or legal effect as to the essential factual and legal
situation in the instant proceeding. This court does not perceive sufficient distinguishing
features by which we should, in the instant proceeding, fail to adhere to and follow Roberts v.
Roberts, supra.
In Dillon v. Dillon, supra, in paragraph 2 of the syllabus, Appeal and Error, it is stated:
Transcript served and filed late would be stricken out on appeal. And in the text of the
opinion proper (on p. 214 of 220 P.2d), Mr. Justice Badt has stated: Under consistent rulings
of this court the twenty-two listed documents, being neither incorporated in a bill of
exceptions nor comprising a part of the judgment roll, must be stricken and the transcript
must likewise be stricken for late service and filing. Craig v. Harrah, 65 Nev. 294, 195 P.2d
688; 66 Nev. 1, 201 P.2d 1081; McGill v. Lewis, 61 Nev. 28, 111 P.2d 537, 116 P.2d 581,
118 P.2d 702; Blouin v. Blouin, 66 Nev. 137, 206 P.2d 608; and the cases therein referred
to. (Emphasis added.)
In the instant proceeding it is clear, from the above-mentioned certificate of F. D. Oldfield,
clerk of the Seventh judicial district court, in and for the county of White Pine, and signed by
him the 4th day of April, 1950, and in which he has stated, under oath, the following: That at
no time between the said date of January 26, 1946, to the date hereof have said Defendants or
either of them or the said Robert R. Gill, Esq., attorney for said Defendants, requested the
undersigned, F. D. Oldfield, Clerk as aforesaid, to prepare the transcript of the record on
appeal in said case No. 5079, that no such request was made by or on behalf of the
appellants.
As stated, in effect, in the above-mentioned affidavit of C. E. Horton, exhibit B, on May
21, 1947, judgment on the verdict was entered by the clerk of the district court in and for
White Pine County. On the 2d day of June, 1947, the court denied the motion for a new trial.
The defendants-appellants, on the 16th day of July, 1947, filed with the said clerk their notice
of appeal from the said judgment entered on the said 21st day of May, 1947, and from the
order of the district court, entered June 2, 1947, denying their motion for a new trial, and, on
the said 16th day of July, 1947, duly filed with the said clerk their undertaking on appeal.
5. While it would appear, as hereinbefore set forth, that inclusion of the matter in the
stipulation extending the time, under date of July 25, 1947, to and including August 28, 1947,
as to the bill of exceptions, consisting solely of the reporter's transcript certified July 22,
1947, may have been inadvertent, on the other hand respective counsel may have considered
and understood that, at least to that extent, even though no allowance and settlement was
required, the appellants need not proceed to perfect the appeal until the expiration of such
stipulation, August 28, 1947, and we hereby determine the matter accordingly.
Applying rule II of the rules of the supreme court, the appellants had, in effect, thirty days
from August 28, 1947, or until and including September 27, 1947, within which to cause to
be filed the transcript of the record on appeal, after same had been perfected, and the bill of
exceptions, if there be one, had been settled.
For the reasons above stated, the time as to the two bills of exceptions requiring
settlement, and treated fully in Shipman v. Watson, supra, will be eliminated from our present
consideration, the time for the settlement thereof, by virtue of the above-mentioned
stipulation, having expired August 28, 1947.
There remains to be mentioned further the first bill of exceptions, namely, that in which
the reporter's transcript of the testimony was served and filed July 22, 1947, and, also, brief
mention as to the judgment roll.
22, 1947, and, also, brief mention as to the judgment roll. The appellants had, under the
statute, six months from the time within which the judgment was entered, on the 21st day of
May, 1947, within which to appeal from the judgement. On the 16th day of July, 1947, the
appellants having filed, as aforesaid, their notice of appeal from the judgment, thus availing
themselves of such alternative remedy, were in a position to proceed to perfect their record on
appeal.
We should bear in mind that, as before stated, appellants had from July 16, 1947, the date
of filing their appeal, until September 27, 1947 (the latter being the expiration of the thirty
days in which to file their transcript on appeal pursuant to such rule II) within which to have,
with due diligence, perfected their record on appeal and filed same. The Nevada statute,
section 8829, N.C.L.1929, vol. 4, provides: 331. Immediately after entering the judgment,
the clerk must attach together and file the following papers, which constitute the judgment
roll: (designating and describing such papers).
Doubtless the clerk of the district court did so, as required. The appellants, therefore, were
in a position, and had ample opportunity, to proceed to perfect their record on appeal as soon
as the clerk had attached together and filed the papers constituting the judgment roll.
And in section 9385.88, N.C.L.1931-1941 Supplement, it is provided as follows:
9385.88. Original Bill To Be Annexed To Judgment Roll.
38. The original bills of exceptions herein provided for, together with a notice of appeal
and the undertaking on appeal, shall be annexed to a copy of the judgment roll, certified by
the clerk or by the parties, if the appeal be from the judgment; if the appeal be from an order,
such original bill shall be annexed to such order, certified by the clerk or by the parties, and
the same shall be and become the record on appeal when filed in the supreme court.
And it appears reasonable and logical, from the provisions above-mentioned, to the effect
that the original bills of exceptions, a notice of appeal and the undertaking on appeal shall be
annexed to a copy of the judgment roll, if the appeal be from the judgment, that same,
including the copy of the judgment roll, shall be annexed within the time provided by said
rule II, in order that the transcript or record on appeal be filed within the thirty days thereby
required.
As above indicated, the only original bill of exceptions filed and served in time was that
constituting the Reporter's Transcript of the Testimony, filed July 22, 1947, and which
could be considered as constituting a part of the record on appeal, and which, together with
the other matters therein, above-mentioned, was required to be filed and served within such
thirty days.
If the appeal be from the judgment, the original bill of exceptions, together with the notice
of appeal and the undertaking on appeal, shall (in the language of said sec. 38) be annexed to
a copy of the judgment roll, and shall be and become the record on appeal, and in order to
perfect such record on appeal, the first bill of exceptions, being the reporter's transcript,
together with the notice of appeal, the undertaking on appeal and the copy of the judgment
roll, shall be filed within the thirty days required by said rule II. Roberts v. Roberts, supra,
and the cases cited in connection therewith.
6. Whether or not, under exceptional circumstances, further time may be granted within
which to file such record on appeal, or, as same is called in rule II, the transcript of the
record on appeal, it is not necessary now to determine. There is, of course, a vast difference
between a situation involving rule II, relating to perfecting the transcript of the record on
appeal, and a situation involving the settlement, serving and filing of a bill of exceptions. In
the former instance, the time within which action is required is mandatory, but not always
jurisdictional. Thiess v. Rapaport, 57 Nev. 434, 66 P.2d 1000, 69 P.2d 96.
66 P.2d 1000, 69 P.2d 96. In the latter instance, the time of filing a bill of exceptions is
always jurisdictional, as we have frequently, in other cases, heretofore stated. In the situation
in the instant case, however, more than two years and six months had elapsed since time to
file the transcript of the record on appeal, September 27, 1947, had expired, and no further
extension had been requested by respective counsel, or granted by the court, nor have
sufficient reasons been shown for further delay. And, as said heretofore, no request was made
by appellants for the filing of the transcript on appeal, either within the thirty days required by
rule II, or at any other time, or at all.
The notice of motion to dismiss the appeal was served on the 4th day of April, 1950, and
filed on the 7th day of April, 1950. Appellants' attorney has, in his points and authorities,
argued in opposition to the dismissal, but the substance of such argument, although ably
prepared, has been in the endeavor to hold in abeyance all pending proceedings in this court,
in order that, after the time the notice to dismiss the appeal was served, and prior thereto,
appellants' said attorney might pursue his proposed effort to prepare, file and serve a new (or
amended) bill of exceptions. Such procedure we cannot sanction, the time to do so having
expired August 28, 1947, and no further extension or extensions having been stipulated by
respective counsel, or granted by either the lower court or this court.
Our discussion on the pages above has been treated entirely upon the assumption or on the
assumed basis that, as insisted upon, in effect, by appellants' counsel, it is not true that no bill
of exceptions has ever been served and filed as prescribed by section 9385.81, N.C.L.
1931-1941 Supplement, in that, as appears from the stipulation attached as exhibit I of said
notice of motion, the reporter's transcript of proceedings was so served and filed on July 22,
1947. It is true that appellants, upon taking their appeal from the judgment, July 16, 1947,
could have chosen to rely upon the judgment roll alone, and not upon same and their said
bill of exceptions, and in that event the time of thirty days within which to serve and file
the transcript on appeal, provided by rule II, would doubtless have been different, for the
reason that the time of filing and serving the said bill of exceptions, and the stipulation
extending same, would not have been applicable.
16, 1947, could have chosen to rely upon the judgment roll alone, and not upon same and
their said bill of exceptions, and in that event the time of thirty days within which to serve
and file the transcript on appeal, provided by rule II, would doubtless have been different, for
the reason that the time of filing and serving the said bill of exceptions, and the stipulation
extending same, would not have been applicable. In that event it would have been necessary
to determine the time within which, reasonably, the transcript on appeal, consisting only of
the notice of appeal, the undertaking on appeal and the judgment roll, could have been
properly requested of the clerk of the district court, and transmitted to this court. It is
reasonable to state that, bearing in mind section 8829, N.C.L., vol. 4, requiring that
immediately after entering judgment the clerk must attach and file the papers which constitute
the judgment roll, and also that, in pursuance of rule II, the requirement to the effect that the
perfected transcript on appeal be served and filed within the requisite thirty days, it would
reasonably have required considerably less time after the appeal from the judgment, July 16,
1947, within which the clerk, presumably, upon being requested by appellants, would have
immediately made up the judgment roll, than, by comparison, would have been reasonably
necessary had the first bill of exceptions, together with the said extension to August 28, 1950,
plus the requisite thirty days above-mentioned, been, by appellants, determined upon and
made applicable.
Appellants' counsel, for reasons which he has deemed sufficient, but which we do not find
to be so, has in the statements he has made on page 2, paragraph 2, lines 10 to 19, of
Appellants' Objections to Motion to Dismiss Appeal, and Notice of Intention to Apply for
Writ of Mandate if said Motion be Denied, filed April 14, 1950, clearly indicated appellants'
intention to rely upon the reporter's transcript on appeal, and not upon the judgment roll alone
or separately. Counsel has, in that connection, stated the following: * * * the Reporter's
Transcript of proceedings was so served and filed on July 22, 1947; that since the ruling
of this Court in matter numbered 35S0 therein, appellant has endeavored to procure an
order from the said Seventh Judicial District Court for the withdrawal from the files of the
Clerk thereof the said original Reporter's Transcript of Proceedings on the trial of the
above entitled action in order that the same, together with all other matters, exhibits,
motions, papers or orders, to be incorporated therein, may be filed, subject to settlement,
as a bill of exceptions, * * *."
Transcript of proceedings was so served and filed on July 22, 1947; that since the ruling of
this Court in matter numbered 3580 therein, appellant has endeavored to procure an order
from the said Seventh Judicial District Court for the withdrawal from the files of the Clerk
thereof the said original Reporter's Transcript of Proceedings on the trial of the above entitled
action in order that the same, together with all other matters, exhibits, motions, papers or
orders, to be incorporated therein, may be filed, subject to settlement, as a bill of exceptions,
* * *. (Emphasis supplied.)
In this opinion, we are justified in relying upon the pattern so clearly indicated by counsel
for appellants, and, in determining the motion to dismiss the appeal, we should not rely upon
the matter of the judgment roll alone, but, on the contrary, should treat the reporter's transcript
and the judgment roll as being, manifestly, intended by appellants' counsel to be taken
together. And the time within which to perfect the record on appeal had expired more than
two years and six months prior to the notice of motion to dismiss the appeal, served April 4,
1950, and filed April 7, 1950.
It is true that we have before us a purported copy of the judgment roll, which was annexed
as an exhibit in support of respondent's motion to dismiss. We have considered the possibility
of taking cognizance of the appeal from the judgment in so far as reversible error might
appear from an examination of the judgment roll itself. However, in addition to what we have
said as to lapse of time, it definitely appears that appellants do not rely upon such judgment
roll but insist that the same is incorrect, both as to papers and pleadings included therein and
as to papers and pleadings omitted therefrom.
7. The showing of counsel for appellants, in relation to appellants' opposition to such
dismissal, being entirely insufficient to justify denial of such motion, and in view of all the
facts and circumstances involved in the instant case, it is the determination and conclusion of
this court, in the exercise of its discretion, that the motion to dismiss the appeal must be,
and same hereby is, granted.
in the exercise of its discretion, that the motion to dismiss the appeal must be, and same
hereby is, granted.
Appeal dismissed.
Badt and Eather, JJ., concur.
____________
67 Nev. 636, 636 (1950) State v. Coleman
STATE OF NEVADA Ex Rel. ELTON B. DAVIE, Petitioner, v. RONALD COLEMAN, as
Building Inspector of the City of Reno, County of Washoe, State of Nevada, Respondent.
No. 3631
November 17, 1950. 224 P.2d 309.
The State of Nevada on the relation of Elton B. Davie brought an original proceeding in
mandamus against Ronald Coleman, as building inspector of the City of Reno, County of
Washoe, State of Nevada, to compel the building inspector to grant the petitioner a building
permit. The Supreme Court, Badt, J., held that the city ordinance adopting a land use plan
was not arbitrary or unreasonable.
Alternative writ vacated and proceeding dismissed.
1. Mandamus.
In suit to mandate building inspector to grant petitioner building permit, it would not be duty or province
of court to interfere with discretion invested in board of adjustment and other city officials unless
ordinance, as it affected petitioner's property, disclosed an unreasonable or arbitrary exercise of power by
zoning authorities and that ordinance had no substantial relation to public health, safety, morals or general
welfare.
Building ordinance and land use ordinance did not operate retroactively to deprive applicant for permit to
convert house into two-family structure of rights theretofore vested in him, merely because his present
dwelling had been constructed under building permit issued prior to adoption of such ordinances.
City of Reno had power to adopt ordinance establishing land use plan. St.1903, c. 102, sec. 1 et seq.; sec.
10.530, as added by St.1945, c. 223, sec. 58; N.C.L.1931-1941 Supp., sec. 5063 et seq.
Taking into consideration object sought to be accomplished, zoning ordinance of city of Reno
establishing land use plan was not arbitrary and unreasonable.
Before zoning ordinance could be stricken down as arbitrary and unreasonable, general residential
character of district, its peculiar suitability to single family residences, propriety of conserving property
values for such purposes, and direction of building development in district for single-family residences
must be taken into consideration.
In suit to mandate building inspector to grant building permit, where it appeared from allegations of
petition that ordinance required, and officials of city gave, due consideration to petitioner's application,
ordinance was not objectionable on ground that city officials enjoyed unbridled arbitrary discretion,
acknowledging neither guidance nor restraint, under land use ordinance of city of Reno.
Land use ordinance, under which application to convert house into duplex was denied, did not confiscate
private property without due process of law and did not deny equal protection of law, since incidental
inconvenience and damage must give way to health, comfort, welfare and safety of public, and use of
property could be reasonably restricted accordingly.
Sidney Fox, of Reno, for Petitioner.
Russell W. McDonald and Richard W. Blakey, both of Reno, for Respondent.
OPINION
Petitioner seeks a writ of mandate to compel the respondent building inspector of the city
of Reno to grant petitioner a building permit pursuant to petitioner's application and his
accompanying proposed plans and specifications. Respondent's return is to the effect that his
rejection of the application for the building permit was required, among other things, by the
provisions of Reno city ordinance No. 791, which limits construction in the district to
single-family residences. Petitioner alleges that he sought a review of respondent's ruling by
the board of adjustment of the city of Reno and by the city council of said city, which are
the official agencies to review successively the orders of the building inspector upon
appeal of an aggrieved applicant.
ruling by the board of adjustment of the city of Reno and by the city council of said city,
which are the official agencies to review successively the orders of the building inspector
upon appeal of an aggrieved applicant. We understand from the oral arguments presented to
us that each of these hearings was in the nature of a trial de novo. The board of adjustment,
and later the city council, sustained the order of the building inspector.
Petitioner's property, a frame house 42 feet in length by 30 feet in width and consisting of
a basement and a first floor, situate on lot 23 of block H of the new Sunnyside Addition to
Reno, and fronting 72 1/2 feet on University Terrace, with a depth along Peavine Road of 128
feet, is known as No. 1095 University Terrace.
Petitioner's application showed that the desired alterations included the enlarging of
certain rooms and closets, and the installing of an additional bathroom on the first floor, and
the construction of a flight of steps leading to the basement. The proposed alterations in the
basement included the following: 1. That a room approximately 7 feet by 8 feet shall be
constructed, the same to constitute a kitchen and to include a range, a refrigerator, a sink and
cupboards; 2. That the rear of said basement shall be extended 6 feet 6 inches to include a
frozen food locker and a landing for said flight of stairs from the said first floor.
Petitioner alleges that respondent's refusal to issue the building permit is based on the
grounds (1) that the building is situate in land use district R1, in which district only
single-family residences are permitted under article 5, section 16 of ordinance 791, and (2)
that the carrying out of the proposed alterations would result in a duplex house contrary to the
provisions of such section. Respondent admits that this is so. As presently constructed, before
giving effect to the proposed alterations, the basement includes a two-car garage, a bathroom,
a living room with fireplace, and a bedroom; and the first floor includes a living room with
fireplace, an outside veranda, a vestibule, a dining room, a kitchen, a utility room, a
bathroom and two bedrooms.
room, a bathroom and two bedrooms. Petitioner does not deny in his petition the correctness
of respondent's conclusion that upon the making of the proposed alterations the house would
be a duplex house; in other words that it would be within classification R2, permitted in a
two-family residence district but not in a single-family residence district, namely,
classification R1, the latter being the classification and the district in which the property is
situate. We thus accept as correct the respondent's conclusion as to the effect of the proposed
alterations.
We have not before us any transcript or record of the testimony or other evidence adduced
before the board of adjustment or before the city council in the proceedings had before those
agencies in their respective reviews of the order of the building inspector. Indeed it is not
made to appear that such proceedings were reported. However, to his return to the alternative
writ respondent has attached, as exhibit B, a certified copy of Reno city ordinance No. 791,
An ordinance to establish a Land Use Plan within the City of Reno regulating and
restricting: The use of land * * * etc., of which ordinance section 5 of article IV establishes
eleven land use districts, the second classification whereof is identified by the symbol R1,
designating single family residence district. Section 7 of article IV adopts a map entitled
Land Use Plan: Part of the Master Plan of Reno, Nevada, likewise submitted as a part of
such exhibit B. This map comprises thirteen sheets, sheet 4 whereof covers that part of the
city in which petitioner's property is situate. It appears therefrom that within the classification
R1 are not only all of the lots in block H, but also all of the lots in all of the blocks for a
considerable distance on all sides of block H. Thus, to the west, all lots are classified as R1
which front on Peavine Road, University Terrace, Mallard Place, Raymond Drive, Novelly
Drive, Sunnyside Drive, Irving Park Circle, etc.; to the north and east all lots fronting on
Sunnyside Drive, Whitaker Drive, Kimbal Drive, Sunnycrest Drive, Hastings Drive,
Sycamore Way, etc.; and, to the south, all lots fronting on University Terrace.
Drive, Hastings Drive, Sycamore Way, etc.; and, to the south, all lots fronting on University
Terrace. In all of this area it is not indicated either by the official plat or by any allegation
contained in the petition for a writ of mandamus, or in any suggestion made by petitioner, in
his briefs or oral argument, that any single exception has been made or variance granted that
would permit the construction or alteration of any structure that would deviate from the
classification R1. Respondent properly calls attention to the situation of petitioner's neighbors
who have purchased and built homes in this district in their reliance on the continued
effectiveness of the ordinance and the land use plan and the classifications therein provided,
and to the fact that petitioner contends for the privilege of exercising his constitutional rights
to use his own property in a vacuum as it were. Although this expression does not find
precedent in the more conservative language of the courts, we do feel that it indicates the
error of petitioner's position in failing to recognize the limitations upon his rights, which
limitations grow out of the more important requirement for the protection of the public
health, safety, morals and general welfare. Thus, detached from its relation to similarly
classified properties within the area, petitioner's property would no doubt come within the
protection of the constitutional principles upon which he so strongly relies. With the many
authorities cited by petitioner sustaining the protection of such constitutional rights we
heartily concur. We might even concede that before Reno developed its growing pains and
other evidences of swift urban growth, some, perhaps many, of the regulations contained in
ordinance No. 791 and the land use plan accompanying it might have been rejected as
arbitrary and oppressive. See opinion of Mr. Justice Sutherland for the Supreme Court of the
United States in Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 120, 71 L.Ed. 303,
54 A.L.R. 1016, and the annotation in the last citation commencing at page 1030.
page 1030. The Euclid case recognized the many conflicting decisions of the state courts, but
commented upon the constantly increasing tendency in the direction of the broader view
sustaining zoning ordinances of this kind. The various grounds of the several courts
supporting such ordinances are discussed at length, and we refer to the opinion in that case
and the annotation following as forever settling this exercise of the police power, unless it
clearly appears that the ordinance is arbitrary and unreasonable and has no substantial relation
to the public health, safety, morals or general welfare. The court recognizes the fact that the
matter of zoning has received the attention of commissions and experts whose reports bear
every evidence of painstaking consideration, and that they concur in the view that the
segregation of residential, business and industrial buildings will increase the safety and
security of home life, greatly tend to prevent street accidents, especially to children, by
reducing the traffic and resulting confusion in residential sections, decrease noise and other
conditions which produce or intensify nervous disorders, preserve a more favorable
environment in which to rear children, etc.
1. As in Minkus v. Pond, 326 Ill. 467, 158 N.E. 121, and numerous other cases, petitioner
does not appear to attack the ordinance as a whole, but contends that the ordinance, as it
affects the property in question, and particularly the building inspector's rejection of
petitioner's building application, concurred in by the board of adjustment and the city council,
bears no relation to the public health, safety, morals or welfare, but is unreasonable, unjust
and discriminatory. Unless we can say that the ordinance, as it affects petitioner's property,
discloses an unreasonable or arbitrary exercise of power by the zoning authorities and has no
substantial relation to the public health, safety, morals or general welfare, it is neither the duty
nor the province of this court to interfere with the discretion invested in these authorities.
Wilkins v. City of San Bernardino, 29 Cal.2d 332, 175 P.2d 542.
2. Petitioner urges that because he purchased the particular building January 27, 1949, and
because the building had been constructed under a building permit issued March 28, 1947 and
because Reno's building ordinance was adopted May 10, 1948 and its land use ordinance
adopted January 31, 1947, the ordinances in some way operate retroactively to deprive him of
rights theretofore vested in him. This contention is without merit. He applied on January 17,
1950 to the building inspector for a building permit which would have permitted such
reconstruction as to convert the building from a single-family unit into a two-family unit. No
such right had theretofore vested in him. Petitioner does not contend that the original building
permit of March 28, 1947 authorized him or his predecessors to construct a two-family
structure.
3. Petitioner contends that when zoning ordinance No. 791 was adopted by Reno January
31, 1947, Reno's charter contained no authorization empowering the adoption of such an
ordinance. The contention is without merit. Reno was incorporated in 1903. Nevada
Stats.1903, p. 184, c. 102. There have been numerous amendments. Under Stats.1945, p. 431,
c. 223, sec. 10.530 of article XII was added. This section definitely gave to the city council
the power to regulate and restrict the use of land for trade, industry, residence or other
purposes, including the right to regulate the types of structures in specified districts and to
divide the city into districts for the purpose. The section is broadly drawn and is ample
authority for the enactment of the ordinance in question. Nevada Stats.1941, p. 249,
N.C.L.1929, 1931-1941 Supp., sec. 5063 et seq., was in addition a general act providing for
city planning, the powers of planning commissions and zoning boards, the regulation of the
use of land, etc. This general act, amended by Nevada Stats.1947, p. 834, c. 267, provided
additional authority. Although petitioner contends that ordinance No.
No. 791 is not within the scope of the legislative authority granted by the act of 1941, we are
satisfied that the powers there granted are amply sufficient to authorize the ordinance.
4, 5. Petitioner attacks the ordinance as arbitrary and unreasonable. However, all property
owners similarly situated are equally affected, and when there is taken into consideration the
object to be accomplished, we cannot say that the means applied is unreasonable. Petitioner
makes no attempt to negative the general residential character of the district, its peculiar
suitability to single-family residences, the propriety of conserving property values for such
purposes, the direction of building development in the district for single-family residences,
etc. Consideration must be given to these elements before the ordinance may be stricken
down as arbitrary and unreasonable. City of Olean v. Conkling, 157 Misc. 63, 283 N.Y.S. 66.
We have considered the authorities cited by petitioner in which zoning ordinances
restricting construction to single-family dwellings were held to be unreasonable. In each of
the cases cited there was a special reason for such holding, which is not applicable here. We
find it unnecessary to review these cases.
6. Petitioner contends that under the ordinance the city officials enjoy unbridled arbitrary
discretion, acknowledging neither guidance nor restraint. The criticism we find to be
unjustified. The very allegations of the petition show that not only did the ordinance require,
but the officials in question gave, due consideration to petitioner's applicationin the first
instance through the building inspector, in the second instance by the board of adjustment and
finally by the city council.
7. Petitioner's general contention that the ordinance operates to confiscate private property
without due process of law and that it denies to petitioner the equal protection of the law is
without merit. Petitioner's incidental inconvenience and damage must give way to the health,
comfort, welfare and safety of the public, and his use of his property may be reasonably
restricted accordingly.
health, comfort, welfare and safety of the public, and his use of his property may be
reasonably restricted accordingly. He may use it for the purposes for which other property in
the district may be used. See City of Albany v. Anthony, 262 App. Div. 401, 28 N.Y.S.2d
963; Carter v. Harper, 182 Wis. 148, 196 N.W. 451.
Petitioner contends that the zoning ordinance, as applied to his property, is invalid under
the holding of this court in State ex rel. Bishop of Reno v. Hill, 59 Nev. 231, 90 P.2d 217,
222, but there the court said: It is to be borne in mind that we do not hold Sections 7 and 8
of the Zoning Ordinance invalid in their general scope or aspects, but only as applied to the
building of the proposed church in the Residential District of Reno.
Petitioner earnestly contended in his oral argument that by the denial of the permit
respondent had arbitrarily refused him permission to add additional doors and windows and
to make other alterations obviously harmless. It is clear however that the proposed
construction of a second kitchen and other installations resulting in a two-family unit was the
basis of the building inspector's rejection of the application. The petition itself makes this
clear. There is nothing in the presentation made to this court to indicate the respondent's
refusal to permit ordinary required alterations and repairs.
The alternative writ is hereby vacated and the proceedings dismissed, and respondent
allowed his costs.
____________
67 Nev. 645, 645 (1950) In Re Puccinelli
In the Matter of ALEXANDER L. PUCCINELLI,
Attorney at Law.
No. 3600
November 20, 1950. 224 P.2d 318.
The Board of Governors of the State Bar of Nevada recommended that an attorney at law
be suspended from the practice of law for a period of nine months and he brought proceeding
before the Supreme Court for review. The Supreme Court, McNamee, Judge, held that the
evidence supported various charges and that petitioner should be suspended from the practice
of law for a period of nine months.
Order in accordance with opinion.
Attorney and Client.
An attorney who allegedly represented both plaintiff and defendant in district court action, and allegedly
violated rules of professional conduct of the state bar by specified conduct, would be suspended from
practice of law for nine months under circumstances.
John S. Halley and Harlan L. Heward, both of Reno, for Petitioner.
W. Howard Gray, Ely, for board of governors of State Bar of Nevada.
OPINION
By the Court, McNamee, District Judge:
Petitioner has brought before this court for review the proceeding in which the board of
governors of the State Bar of Nevada recommended that he be suspended from the practice of
the law for a period of nine months.
The notice to show cause, issued on January 8, 1949, charges petitioner with the
following:
(1) Representing, as attorney, both plaintiff and defendant in that district court action
entitled Lloyd Hanson v. Charles Robinson;
(2) Violation of rule IV, rules of professional conduct of the State Bar of Nevada by
acquiring an interest adverse to a client;
of the State Bar of Nevada by acquiring an interest adverse to a client;
(3) Violation of rule V of said rules by accepting employment adverse to a client relating
to a matter in which he had obtained confidential information by reason of or in the course of
his employment by such client, to wit, Lloyd Hanson;
(4) Violation of rule VI of said rules by accepting professional employment on behalf of
Charles Robinson without first disclosing his relation with the adverse party, Lloyd Hanson;
(5) Violation of rule VII of said rules by representing the conflicting interests of Lloyd
Hanson and Charles Robinson in said district court action.
(6) The giving of false testimony under oath in the said case of Hanson v. Robinson.
The matter as initiated proceeded to a hearing before a local administrative committee of
the state bar which made findings unfavorable to petitioner, and recommended that petitioner
be suspended from the practice of law for nine months. A hearing de novo was had before the
board of governors of the state bar and, after making findings against petitioner, they likewise
concluded that petitioner was guilty of unprofessional conduct and recommended that he be
suspended from practice for a period of nine months.
Neither the local administrative committee nor the board of governors made a finding with
respect to the said alleged violation of rule IV, rules of professional conduct. In this review,
therefore, we have proceeded as if said charge was neither alleged nor proven.
During March, 1948, Lloyd Hanson employed petitioner, an attorney at law, to bring suit
against Charles Robinson in the district court of Elko County. Petitioner thereafter requested
F. Grant Sawyer, an attorney at law, to be associated with him in the action, and the latter,
with the consent of Hanson, and under the supervision of petitioner, prepared the pleadings,
filed the action, and caused the summons and complaint to be served personally upon
Robinson in Elko County, Nevada.
be served personally upon Robinson in Elko County, Nevada. The papers in the action failed
to disclose that petitioner was associated with Mr. Sawyer as an attorney for plaintiff,
Hanson. After he was served as aforesaid, Robinson took the papers to petitioner's office and
left them with petitioner, who, without disclosing to Robinson that he was an attorney for
Hanson in the action, retained them until after a default judgment was entered against
Robinson in favor of Hanson. During this period that the papers were in petitioner's office,
Robinson went there six times or more. On August 11, 1948, being within the period from the
time Robinson was so served and before the said entry of judgment, petitioner, still not
disclosing to Robinson that he was an attorney for Hanson in said action, acted in the capacity
of attorney for Robinson in a matter involving the property which was the subject of the
Hanson-Robinson action. Petitioner theretofore and on several occasions since September,
1947, had, as an attorney at law, represented Robinson in other matters.
After said default judgment was entered against him, Robinson employed Orville R.
Wilson as his attorney to move to set aside said judgment. The motion was heard and granted,
and thereafter a judgment for $4,000 less than the amount of the default judgment was
entered in favor of Hanson against Robinson. At the hearing of said motion to set aside the
judgment, petitioner, as a sworn witness, testified that he did not represent Hanson and was
not an associate of F. Grant Sawyer in the case. The day following, however, petitioner again
took the witness stand at his own request, and changed his testimony by admitting that he had
been the attorney for Lloyd Hanson, and that he was in fact associated with Mr. Sawyer as
attorney for Hanson in the said case. The court in which this false testimony was given
thereupon cited for contempt the petitioner who appeared therein, made a statement on his
own behalf, and confessed his error. Thereupon, petitioner was found to be in contempt and
ordered to pay $350.
All of the charges against petitioner, exclusive of the alleged violation of said rule IV, are
supported by the evidence. The only matter left for determination is the penalty to be
imposed.
The law with respect to the imposition of a penalty in cases of this nature is well set out in
7 C.J.S., Punishment, sec. 38, at page 806, and reads as follows: In arriving at the
punishment to be imposed, precedents are of little aid, and each case must be largely
governed by its particular facts and the matter rests in the sound discretion of the court. The
question is not what punishment may the offense warrant, but what does it require as a
penalty to the offender, as a deterrent to others, and as an indication to laymen that the courts
will maintain the ethics of the profession.
The record herein discloses that in not only the proceedings before the district court, but
also the hearing before the local administrative committee, petitioner confessed his guilt
insofar as his giving of false testimony was concerned, and with an apparent penitent frame of
mind asked for clemency. We naturally would feel inclined to be more lenient with a penitent
petitioner if this attitude had continued. In his subsequent proceedings before the State Bar of
Nevada and before this court, there has been no intimation of his repentance for his
unmistakable wrongdoing.
The record herein containing, as it does, petitioner's testimony given in the several
different proceedings involved herein, discloses numerous instances where such testimony in
one hearing has been inconsistent with his testimony in another. We have noted, also from
petitioner's own testimony that the charges upon which these proceedings were based have
been publicized to such an extent in Elko County, where he holds the official position of
district attorney, that he has lost the confidence of certain clients, and that his private practice
has already suffered therefrom.
With all these things in mind, we believe that substantial justice as a penalty to the
offender, as a deterrent to others, and as an indication to laymen that the courts will maintain
the ethics of the profession demands that petitioner be suspended from the practice of law in
this state commencing January 1, 1951 and continuing for a period of nine months therefrom
and until he is, by this court, ordered reinstated.
An order will be entered accordingly.
Badt, J., being disqualified, the Governor designated Honorable Frank McNamee, Judge of
the Eighth Judicial District, to sit in his stead.
____________
67 Nev. 649, 649 (1950) Van Heukelom v. State Board of Chiropractic Exam'rs
In the Matter of the Application for a Writ of Prohibition by DR. ARNOLD VAN
HEUKELOM, Petitioner, v. THE NEVADA STATE BOARD OF CHIROPRACTIC
EXAMINERS and DR. FOSTER H. KRUG, DR. E. P. DEPUTY, DR. M. C. ALDEN and
DR. W. J. HEMINGWAY, and DR. ROBERT W. WARBURTON, Constituting the
Members of Said Board, Respondents.
No. 3616
November 30, 1950. 224 P.2d 313.
Dr. Arnold Van Heukelom filed an original petition against the Nevada State Board of
Chiropractic Examiners and Dr. Foster H. Krug, and others, constituting the members of said
board, for a writ of prohibition prohibiting the respondent board from proceeding with a
hearing looking toward the revocation of petitioner's license to practice chiropractic. The
Supreme Court held that facts alleged did not constitute fraud on part of petitioner justifying
revocation of petitioner's license.
Alternative writ made permanent.
1. Physicians and Surgeons.
The words deception or fraud as used in statute authorizing revocation of license to practice
chiropractic if practitioner was guilty of deception or fraud in practice of chiropractic, must be given their
common and traditional meaning, and they involve intentional misrepresentation or concealment of facts.
N.C.L.1929, sec. 1090.
Failure of applicant for license to practice chiropractic to verify the application as required by statute was
not a fraud which would justify revocation of license. N.C.L.1929, sec. 1090.
That secretary of board of chiropractic examiners, as board was then constituted, arbitrarily erroneously
dated license issued to petitioner to practice chiropractic, was not a fraud on part of petitioner which would
justify revocation of license. N.C.L.1929, sec. 1090.
4. Prohibition.
Action of board of chiropractic examiners in proceeding under statute authorizing board to revoke license
to practice chiropractic if board finds that licensee practices anything other than chiropractic to cure
disease without a separate license therefor, or if board finds that licensee no longer possesses a good moral
character, or is addicted to use of drugs, or is guilty of deception or fraud in practice of chiropractic, is
judicial or at least quasi judicial, and is not ministerial, and may in a proper case be halted by prohibition.
N.C.L.1929, sec. 1090.
Under statute authorizing board of chiropractic examiners to revoke license to practice chiropractic if
board finds that licensee was guilty of deception or fraud in the practice of chiropractic, quoted words
apply to practice of chiropractic and not to manner of applying for license. N.C.L.1929, sec. 1090.
McCarran & Wedge, of Reno, for Petitioner.
Harry E. Claiborne, of Reno, for Respondents.
OPINION
This is an original petition for a writ of prohibition prohibiting the respondent board from
proceeding with a hearing looking toward the revocation of petitioner's license to practice
chiropractic.
license to practice chiropractic. The proceedings were initiated by the respondent board
against petitioner under the provisions of sec. 1090, N.C.L.1929, which reads as follows:
Upon complaint of the board, after twenty days notice of time and place of trial has been
given to any licensee, if it shall be found that he practices anything other than chiropractic to
cure or relieve disease or to remove the cause thereof without having a separate license
therefor, or, if it be found that he or she no longer possesses a good moral character or is
addicted to the use of narcotic drugs or in any way is guilty of deception or fraud in the
practice of chiropractic, his license shall be revoked.
If the accused is aggrieved by the action of the board, he may appeal to the district court
on the merits.
Under this section the board, under date of March 13, 1950, issued and served upon
petitioner an order to show cause ordering him to appear before said board on April 15,
1950 and show cause why the license issued to him to practice chiropractic in Nevada should
not be revoked, upon three stated grounds. The first was that petitioner was guilty of
deception and fraud because his application for permission to take the examination was not
sworn to and because at the time of filing his application he had not yet graduated from a
chiropractic school. Both of these elements are required by preceding sections of the act. The
second ground was that he was guilty of deception and fraud because at the time of the
issuance of his purported license on May 12, 1949, the term of office of two members of the
three-member board had expired, which fact was known to petitioner. The third ground was
that he was guilty of deception and fraud because he was practicing under authority of a
purported license fraudulently issued to him under the signature of the president, when as a
matter of fact the said purported president was deceased on the date under which the said
license was issued.
It will be at once noted that the three grounds upon which the order to show cause is
based all have to do with the petitioner's actions in obtaining his license, and do not
purport to substantiate or support the statutory ground of petitioner's being "in any way
* * * guilty of deception or fraud in the practice of chiropractic."
which the order to show cause is based all have to do with the petitioner's actions in obtaining
his license, and do not purport to substantiate or support the statutory ground of petitioner's
being in any way * * * guilty of deception or fraud in the practice of chiropractic.
Respondents met this situation in two ways. It is said, first, that if the petitioner obtained his
license by fraud, he has no valid license and by purporting to practice as a licensed
chiropractic he is guilty of fraud and deceit in the practice of chiropractic. Secondly, it is
said that even without statutory authorization the board has inherent power to revoke a license
fraudulently obtained from it.
1. Assuming, without deciding, that respondents are correct in both of these propositions,
we must then look again to the allegations of the order to show cause, even to the extent that
the same are amplified and explained in the answer to the petition and in respondents' brief,
to see whether fraud in the obtaining of the license is charged. The words fraud and deceit
must be given their common and traditional meaning. They involve intentional
misrepresentation or concealment of fact. Tompkins v. Board of Regents, 1949, 299 N.Y.
469, 87 N.E.2d 517. Such fraud and deceit in the filing of petitioner's application to take the
examination would necessarily mean such misrepresentation of fact, such purpose and
intention to deceive the board of chiropractic examiners as to involve a moral delinquency or
a bad or corrupt purpose. Mississippi State Board of Dental Examiners v. Mandell, 198 Miss.
49, 21 So.2d 405.
2. The failure to verify the application as required by statute was of itself patently not a
fraud. It involved no misrepresentation or concealment. It was obvious from the face of the
application. The board could undoubtedly have rejected the application for its failure of
verification or could have returned it so that the verification could be supplied. The applicant
signed the form of verification but the notarial certificate that followed was not executed. It is
not claimed that any of the statements contained therein are not true.
the statements contained therein are not true. The required statutory content of the application
is largely formal, including name, age, sex, residence, name and location of school from
which the applicant graduated, date of graduation, and extent of study. Data as to studies and
graduation appear from a separate certificate of the school or college, which certificate forms
a part of the application. In the instant case it is shown by the certificate of the Palmer School
of Chiropractic that the applicant entered this institution on the 24th day of October, 1947;
(2) and will be graduated the 25th day of May, 1949. The last italicized words were
interlined in the printed form. Thus petitioner's application to take the examination clearly
indicated that at the time he had not yet graduated but would be graduated several months
thereafter. Correspondence, annexed as exhibits to respondents' answer, show that this
situation was called to the attention of the board by the chiropractic school. It is quite true, as
asserted by respondents, that the fact that petitioner had not yet been graduated (a condition to
his eligibility to take the examination, as is likewise the requirement that he have primary
education equivalent to a high school education, under the provisions of sec. 1083, N.C.L.)
was necessarily known to petitioner. However, he made no concealment of that fact. On the
contrary his application, including the school's certificate as a part thereof, called attention to
it. Patently there was no fraud or concealment growing out of this item. (Counsel for
petitioner assured the court that petitioner had made no attempt to practice chiropractic in
Nevada, despite his license, until after he obtained his certificate of graduation from the
chiropractic school.) It should be noted too that at the time of the school's certificate it is
recited that the applicant had completed 2,950 hours of sixty minutes each in the listed
subjects required as against the minimum 2,400 hours required by the statute itself. It further
appears from the school's certificate that the minimum statutory hours for each of the listed
subjects had either been met or exceeded.
had either been met or exceeded. Under the statute the examination given by the board and
the grading of the answers are solely for the purpose of determining whether the applicant is
reasonably qualified to practice chiropractic.
3. It is contended by respondents that petitioner's purported license is a nullity, because at
the time of its date one member of the three members was deceased and because at its date
the term of two of the members had expired. Of the three-member board, it is alleged by
respondents that Dr. Grant's term of office expired April 22, 1949, and that Dr. Heath died
April 16, 1949. Dr. Grant, the secretary, apparently dated and mailed to petitioner on May 12,
1949, the license theretofore signed by all members of the board, and certainly signed by Dr.
Heath prior to his death. It is not claimed that anyone other than Dr. Heath appended Dr.
Heath's signature. But it is alleged by respondents that pursuant to the amendatory act of
March 29, 1949, N.C.L.1943-1949 Supp., sec. 1080, et seq., the governor had on April 22,
1949, appointed a new board comprising the named respondents herein. However, the old
board under the provisions of sec. 1080, N.C.L., were to serve until their successors shall
have been duly appointed and qualified. It appears affirmatively from respondents' answer
that the new board did not organize until May 6, 1949. Until that date it had no president,
secretary, treasurer or other officers. It is not claimed by respondents that their appointment
and qualification operated ipso facto as a revocation of any acts officially performed by the
old board during the term of office of the members thereof and during the lifetime of such
members. That the secretary of the old board arbitrarily appended to the license the date of
May 12, 1949 when it had patently been signed prior to Dr. Heath's death on April 16, 1949
and which was necessarily also prior to the expiration of Dr. Grant's term of office on April
22, 1949, can hardly be charged as fraud on the part of petitioner.
Respondents assert that they have in their possession the sealed envelope containing
petitioner's examination, and allege on information and belief that the examination was
never marked or graded by the old board.
the sealed envelope containing petitioner's examination, and allege on information and belief
that the examination was never marked or graded by the old board. Petitioner alleges that he
took his examination February 27, 1949, delivered it to the board, and that the board
thereupon corrected and graded the examination and gave petitioner a passing grade. In view
of the fact that all members of the old board signed the license after the submission of the
examination and while Dr. Heath was alive and before Dr. Grant's term had expired (no
question is raised as to the third member of the old board, Dr. Hemingway, who is likewise a
member of the new board), it would be futile here to discuss this issue of fact thus raised by
respondents on their information and belief. The charge is serious in its nature, involving as it
does, not only Dr. Heath who is deceased, not only Dr. Grant who is no longer a member of
the board, but also Dr. Hemingway, a member of the new board and one of the respondents.
No suggestion is made by respondents as to why Dr. Hemingway could not have verified this
charge of his own knowledge.
4. It is further contended that prohibition will not lie for the reason that the respondents in
proceeding under the order to show cause will be acting ministerially only and not judicially
or quasi judicially. This contention is without merit. Section 1090, under which the order to
show cause was issued, refers to the proceeding as a trial. As a result of this trial the license
may be revoked if the board finds that the respondent practices anything other than
chiropractic to cure disease without a separate license therefor or if the board finds that the
respondent is no longer of good moral character, or is addicted to the use of drugs, or is guilty
of deception or fraud in the practice of chiropractic. It is thus evident that the section
contemplates that evidence shall be taken, weighed and considered by the board, which shall
then, in the exercise of its judgment and discretion, not only make findings of fact but
conclusions of law. Under such circumstances its action is judicial or at least quasi judicial,
and may in a proper case be halted by prohibition.
judicial, and may in a proper case be halted by prohibition.
It is true that in Haviland v. Foley and others comprising the board of governors of the
State Bar, 55 Nev. 455, 39 P.2d 198, this court held that the board of governors in hearing de
novo a disciplinary proceeding initiated before the local administrative committee do not
exercise judicial functions, and that therefore their proceedings may not be arrested by
prohibition. The basis for this rule was In re Scott, 53 Nev. 24, 292 P. 291, the first
disciplinary case coming before this court under the State Bar Act. There this court
emphatically stated that the State Bar Act could not be construed as even partially
withdrawing from the supreme court its statutory or inherent power to disbar or suspend an
attorney, and that the board of governors was merely an intermediary agency for the taking of
evidence and reporting thereon to this court, and that their findings or recommendations are
merely recommendatory and not final. This is clearly distinguishable from the act governing
the practice of chiropractic. Under that statute the board is given power and authority to
revoke the license to practice. Unless an appeal is taken to the district court, the board's action
is final. The functions exercised are therefore clearly judicial. Findings and recommendations
of the board of governors of the State Bar do not effect a suspension or disbarment. The order
of suspension or disbarment may be made only by this court even in the absence of a petition
to review the proceedings.
Respondents contend that the provision of sec. 1090, N.C.L. permitting the accused, if
aggrieved by the action of the board, to appeal to the district court provides an ample remedy
and that prohibition will therefore not lie. Respondents deny the allegation of petitioner that
there is no provision for staying the operation of the board's action pending such appeal. The
appeal, as noted, is to the district court. Respondent does not attempt to call our attention to
any statute or other authority permitting a stay pending such appeal.
call our attention to any statute or other authority permitting a stay pending such appeal. The
effects upon the petitioner, without such remedy, are obvious. See opinion of Norcross, J., in
Bell v. District Court, 28 Nev. 280, 294, 81 P. 875, 1 L.R.A.,N.S., 843, 113 Am.St.Rep. 854,
6 Ann.Cas. 982.
The summary at the end of respondents' brief asserts that the order to show cause complies
with the statutory provisions in that it alleges fraud and deception; that the answer to the
petition for the writ sets out the facts that constitute the said fraud, namely, (1) that the
application was not sworn to, (2) that petitioner took the examination before he had graduated
from a chiropractic school, (3) that the examination was not fairly marked and graded, much
less even opened and (4) that petitioner's license was dated May 12, 1949, some twenty days
after the appointment of the new board. The final assertion is that the order to show cause
states a cause of action for the revocation of petitioner's license on statutory grounds, which
is apparently again a reference to the statutory ground for revocation when the accused is
guilty of deception or fraud in the practice of chiropractic.
Using the language of the court in Lowrie v. State Board of Registration and Examination
in Dentistry, 90 N.J.L. 54, 99 A. 927, one of the authorities cited by respondents, we may say
of the numerous reasons [given for denial of the writ] we deal only with those which the
counsel for the [respondents] deemed worthy of argument in his brief.
At the conclusion of the oral argument of this case we granted respondents additional time
to file points and authorities and also an answer to the petition. Such answer has been filed,
and petitioner has demurred thereto and moved to strike parts thereof. He has also moved for
leave to file an amended petitionthe proposed amended petition being attached to such
motion. After these matters had been set for presentation and argument, an order was made
pursuant to stipulation to the effect that the amended petition might be filed, that any
new matter therein contained be deemed denied, and that the said demurrer and motion
to strike, as well as the merits of the petition, be submitted to the court.
argument, an order was made pursuant to stipulation to the effect that the amended petition
might be filed, that any new matter therein contained be deemed denied, and that the said
demurrer and motion to strike, as well as the merits of the petition, be submitted to the court.
In view of the conclusions reached by us, it is unnecessary to devote any discussion to the
issues raised by the demurrer and motion to strike.
5. We hold that no statutory ground for revocation of petitioner's license is stated in the
order to show cause; that the deception and fraud in the practice of chiropractic, for which a
license may be revoked, clearly applies to the practice of the profession and not to the manner
of applying for the license; that, assuming but not holding that the board has an inherent
power to revoke a license obtained by fraud, the facts alleged in the complaint or order to
show cause, even when aided by the allegations contained in the answer to the petition herein,
do not constitute fraud. If the powers of the board are to be enlarged in the matter of
considering charges against a member of the profession, that is something for the attention of
the legislature.
The alternative writ is hereby made permanent. However, in view of the irregularities on
the part of the former board, which apparently commanded the attention and provoked the
action of the new board, and in view of the undoubted good faith of the respondent board in
seeking to police its own profession and to protect the public, no costs are awarded.
____________
67 Nev. 659, 659 (1950) State v. Gregory
STATE OF NEVADA, Plaintiff and Respondent, v. THEODORE WILLIAM GREGORY,
Defendant and Appellant.
No. 3570
December 30, 1950. 225 P.2d 1059.
On second petition for rehearing.
For original opinion see 66 Nev. 423, 212 P.2d 701.
Leslie B. Gray, Reno for Appellant.
Alan Bible, Attorney General, Robert McDonald, Deputy Attorney General, Harold O.
Taber, District Attorney of Washoe County, Grant L. Bowen, Assistant District Attorney of
Washoe County, Reno, for Respondent.
Per Curiam:
Petition denied.
Badt, J., and Hatton, District Judge, concur.
Hatton, district judge, having been commissioned to sit in this case by reason of the illness
of Eather, J., and having written the opinion on the original appeal and participated in the
denial of the first petition for rehearing, likewise acted upon the second petition for rehearing,
and Eather, J., did not participate.
Horsey, Chief Justice.
I dissent.
Upon further consideration as to the probable effect of the decree of divorce set forth in
the principal opinion in the instant case, as to which this court found that upon objection of
the defendant the admission of said decree should have been denied, this court,
notwithstanding such concession, or admission, that the decree should have been denied
admission, and its admission was, therefore, erroneous, nevertheless, proceeded to find and
determine that no prejudicial error resulted therefrom.
It is true that this justice did concur, heretofore, in the principal opinion, written by
District Judge Hatton, and in which the judgment of conviction of the defendant was
affirmed.
the principal opinion, written by District Judge Hatton, and in which the judgment of
conviction of the defendant was affirmed. Further reflection and consideration, however, has
led this justice to feel and conclude that in the instant case it is not without reason for this
justice to feel seriously concerned as to whether or not the fact of the admission in evidence
of the Gregory divorce decree, and in which extreme cruelty was the alleged ground for the
relief sought, should have been permitted admission in evidence.
Even though the divorce was not contested, and the allegations of the complaint, including
that as to extreme cruelty, were probably inserted to give strength to the alleged cause of
action so as to assure obtaining a divorce, rather than that, in fact, the plaintiff in that action
seriously intended actually to litigate that matter, on the other hand, such allegation of
extreme cruelty may have been seriously calculated to prejudice the defendant.
In that connection, it may well have been readily believed by the juror's, having before
them the decree of divorce and the basis of extreme cruelty on which it was predicated, that
such alleged extreme cruelty by reason of which the divorce occurred, could have caused the
defendant not to have maintained continually friendly relations with Margaret Tarr, the
deceased, but that he may have ceased to have close and apparently friendly relations with
her, which, for several months they had maintained.
Mention may be made of the cases upon which the defendant principally relies as to the
divorce decree, and which are as follows: Binns v. State, 57 Ind. 46, 26 Am.Rep. 48; People
v. Holloway, 28 Cal.App. 214, 151 P. 975, 977; and People v. McNeer, 14 Cal.App.2d 22, 57
P.2d 1018, 1020.
From the testimony, it appears fully that Margaret Tarr, soon after the divorce, continued
to reside with the defendant at his place of residence in Las Vegas, until, a few days
thereafter, she informed him she had made up her mind to go to Reno and seek employment
as a "shill" in a gambling establishment there.
as a shill in a gambling establishment there. She wrote him, soon after she had become
located in Reno and had commenced to work as said shill, and invited him to cease his
employment as a barber in Las Vegas and go to reside in Reno, and start to work there, which
he did. She was then residing in a hotel in Reno, and Gregory, upon Margaret Tarr's
invitation, went to such hotel to reside. Later they mutually determined, in view of the
divorce having previously occurred, that they, perhaps, had better leave the hotel and go to
reside in a private home in Reno. Each of them, Margaret Tarr and Gregory, took adjoining
rooms at said home, and commenced to reside there. The owners of the home were Mr. and
Mrs. Eichelberger. Apparently all went along nicely as to Margaret and Gregory. The latter
frequently took her to dinner and to the movies, and, until shortly before this tragedy
occurred, they were apparently fond of each other. Gregory proposed remarriage, and took her
to select some jewelry, in contemplation of remarriage. It appeared they expected to remarry
in about two or three weeks.
Apparently they continued to be very friendly, and all went well until early one morning,
when Margaret was much later than usual in arriving at her room at the Eichelberger home,
where they each resided, and shortly before Gregory had to go to work. Margaret, at several
hours later than usual, rode up in a fine limousine, accompanied by one Darrel Birch, a floor
boss at Harold's Club, one of the large gambling establishments in Reno. Gregory was,
apparently, much surprised, and, according to the evidence, became imbued with much worry
and anxiety. Birch drove away, in the early morning, and Gregory wished to know, from
Margaret, what it was all about. She, Margaret, was cold toward him in her reply, and said
nothing to appease his injured feelings.
During the next several days, Gregory tried to talk to Margaret, but received little
satisfaction. Apparently, Gregory was very fond of her, and continued to try to be friendly
with her, and to endeavor to ascertain what he should do.
he should do. She continued to be indifferent toward him.
One morning, several days later Gregory arose, and, looking out from his window, saw the
same limousine drive up to the curb alongside the sidewalk of the Eichelberger home, shortly
after daylight, in the early morning. At that time Birch and Margaret did not emerge from the
car. Gregory was so nervous and distraught that he even failed to remove his pajamas, but
hurriedly pulled his trousers over his pajamas, picked up a Luger revolver which he had
owned for a number of years, and rushed out to the limousine. Peering in the car, he saw
Margaret and Birch in each other's arms, in fond embrace. They were so fully oblivious to
what was otherwise occurring that they were apparently unconscious as to the presence of
Gregory. The latter, being unable to restrain himself, reached in the car, grabbed Margaret's
hand, or wrist, and pulled her away from Birch. Of course, there were angry words, but
Gregory did not offer to use his revolver. On the contrary, he placed same in his belt. He
forced himself into the car, and told Birch he and Margaret had planned to be married soon.
And Margaret, very coldly, told him she did not wish anything further to do with him. They
were in front of the Eichelberger home, but soon one of them suggested not arousing the
neighbors, to which they apparently all agreed, and then Birch drove the car for several
blocks. From the evidence, it appears that they were continually quarreling, but Gregory,
during all that time, did not offer or threaten to shoot either Margaret or Birch, but kept the
revolver in his belt. Gregory tried to induce Margaret to tell him what she intended to do,
reminding her of their engagement to be married in about two or three weeks. She then
replied to Gregory that he was a liar. Then, trying to appease the tense situation, Birch said
to Margaret, in effect: If you have promised to leave Gregory, why don't you tell him?
Margaret, fawning on her newly-acquired lover, said in effect: I won't tell him unless you tell
me to."
me to. This was too muchmore than Gregory could stand. It was then that Gregory
suddenly, for the first time, aimed his revolver at Birch and Margaret, and, at first, said he
would kill them both, but then relented, in that, as Gregory recalled at the trial, Birch had not
done anything to him, Gregory, and immediately ordered him to go, that is, leave the
automobile. But immediately after that, and when Birch was about to leave the car, Gregory,
apparently in a very excited and erratic frame of mind, told him not to go, but to stay there. It
was then that Birch jumped out the open window of the car, and ran, and immediately
thereafter Gregory evidently fired, and Birch continued to run. Shortly thereafter the police
came, and Gregory was arrested, and it was found by the police that Margaret was dead. That
Gregory was greatly excited and almost beside himself with anger, no one, under the
circumstances, can reasonably doubt.
The question as to whether, under the circumstances, Gregory, goaded and aggravated as
he was by Margaret, fired wilfully and with deliberation and premeditation, or, in fact and in
truth, acted under the immediate effect of an overpowering anger and passion, and without
any sufficient time in which the passions of Gregory might be permitted to cool and for the
voice of reason and humanity to be heard, it is difficult, from the evidence, to determine.
Under such circumstances, it would seem that the sudden anger on the part of Gregory, and
which was strongly aroused by the cold and wholly inconsiderate acts or conduct of Margaret,
was well-nigh irresistible, insofar as Gregory was concerned. Having acquired a new lover,
possessed of more money than Gregory could afford, apparently Margaret cared nothing
whatever about the pride or feelings of Gregory, or the danger her action might cause. It is
true that more than a hour had elapsed, commencing at the time Gregory approached the
automobile in front of the Eichelberger home, and reached in and grabbed Margaret by the
arm, and before the killing later occurred, and, ordinarily, such hour, or thereabouts would
have been sufficient for the heat of passion to subside and for the voice of reason and
humanity to be heard.
thereabouts would have been sufficient for the heat of passion to subside and for the voice of
reason and humanity to be heard. But the passion, which, from the evidence, doubtless may
be considered great in degree, did not manifest itself until the cold-blooded ultimatum of
Margaret, and her fawning upon Birch, after her treatment of contempt and scorn toward
Gregory. Thus, it reasonably appears to this justice, upon consideration, carefully, of the
evidence, that Gregory's passion was suddenly aroused to a whiteheat of irresistible fury,
caused by adequate provocation on the part of Margaret, and that, within a very few seconds,
it appears from the evidence, Gregory fired, and killed Margaret.
This justice's belief is that, under the proper legal conception, the killing of Margaret was,
in view of those circumstances, more likely voluntary manslaughter than any other degree of
the offense. Gregory could not, it is believed, restrain his passion under the very great
provocation with which he was then suffering, entirely without his fault, and voluntary
manslaughter, it is believed, fits closer the true situation than would second-degree murder.
But be that as it may, there cannot reasonably be any question but that second-degree
murder would fit the requirements of the law as to the proper punishment for Gregory.
First-degree murder would be too great a penalty, under the circumstances, and if the death
penalty were carried out, same would amount, this justice sincerely believes, to a travesty
upon justice. The death penalty should never be invoked in a criminal case except under the
most extreme circumstances. Gregory has not been shown to have heretofore ever been even
arrested for any criminal offense, which should weigh very greatly in his favor. Commutation
from death to life imprisonment is, under the circumstances, probably the only reasonable
course. This justice does not hesitate to say, under the circumstances, referring to the
proceedings which were had before the board of pardons and parole in regard to possible
commutation from death to life imprisonment, in the matter of State v. Gregory, that
commutation was denied by a majority of only one vote.
and parole in regard to possible commutation from death to life imprisonment, in the matter
of State v. Gregory, that commutation was denied by a majority of only one vote. Great care
should be exercised in determining, soundly and justly, the correct degree of homicide which
should properly be invoked in cases such as this Gregory case.
Reference is made to cases from California which appear to elucidate very clearly the
principles of law and their appropriate application, in relation to the crime of homicide and its
several degrees. In that connection, see: State v. Howard, 211 Cal. 322, 295 Pac. 333, 71
A.L.R. 1385-1394; People v. Daniel, 65 Cal.App.2d 622, 151 P.2d 275.
Reporter's Note: Petition for a writ of certiorari in the above case was denied by the
Supreme Court of the United States on October 9, 1950.
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