Nevada Reports 1953-1954 (70 Nev.) PDF

70 Nev.
1, 1 (1953)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
1953
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VOLUME 70
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70 Nev. 1, 1 (1953) State Ex Rel. Beck v. District Court
THE STATE OF NEVADA on the Relation of JESSIE M. BECK, Relator, v. THE SECOND
JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of
Washoe and HONORABLE JOHN S. BELFORD, Judge of Department No. 1 Thereof,
Respondents.
No. 3727
January 2, 1953. 251 P.2d 854.
Original proceedings in prohibition by relator to prohibit respondent court from
perpetuating the testimony of relator.
The Supreme Court, Eather, J., held that petitioner for perpetuation of testimony was
entitled to proceed and that relator was not entitled to peremptory writ preventing the
perpetuation of the testimony.
Alternative writ vacated and petition for the peremptory writ denied and the
proceedings dismissed, with costs to respondents.
Louis V. Skinner and Norman H. Samuelson, of Reno, for Relator.
William L. Hammersmith, of Reno, for Respondents.
1. Depositions.
Petition for perpetuation of testimony need show nothing more than the statutory requirements.
N.C.L.1929, secs. 9011-9019.
2. Depositions.
A substantial compliance with statutory requirements relating to perpetuation of testimony is all that is
necessary for a petition for perpetuation of testimony. N.C.L.1929, secs. 9011-9019.
3. Depositions.
Where petition for perpetuation of testimony showed that facts sought to be established by the testimony
were clearly within the knowledge of both parties, and that petitioner sought perpetuation of testimony
relative to facts already known to petitioner rather than a disclosure of facts unknown to petitioner, and
petitioner met all former requisites fixed by statute for petition for perpetuation of testimony, petitioner was
entitled to proceed. N.C.L.1929, secs. 9011-9019.
4. Prohibition.
Where district court acted properly in granting petition for perpetuation of testimony, person whose
testimony was to be taken, was not entitled to prohibition to prevent the taking of the testimony.
N.C.L.1929, secs. 9011-9019.
OPINION
By the Court, Eather, J.:
This is an original proceeding in prohibition. Relator hereby seeks to obtain an order of
this court prohibiting respondents from proceeding upon petition of one Suzanne Floyd,
Pursuant to secs. 9011-9019, N.C.L.1929, to perpetuate her testimony.
Without setting forth at length the petition for perpetuation of testimony, it may suffice
briefly to state that it contained the statements: That the petitioner expects to be a party
plaintiff in an action to be filed in the Second judicial district court, in which action it is
expected that the adverse party defendant will be Jessie H. Beck, of Reno, Nevada; that in the
action which the petitioner expects to file in the said court it will be material and necessary
for the plaintiff to establish the following facts: that on or about the 27th day of June, 1951,
the petitioner was in the company of Jessie H.
Beck, having left Reno to accompany Jessie H. Beck to Venus, Texas, at the sole request of
the said Jessie H. Beck; that on the said date hereinbefore alleged, the said Jessie H. Beck, did
with force and violence, assault the petitioner herein and did strike the said petitioner in and
about her face and the upper portion of her body, and the said Jessie H. Beck did, at the said
time and place, threaten the petitioner with physical violence and which put the petitioner in
fear of her life; that the said Jessie H. Beck did refuse to return the petitioner herein to her
residence and domicile in Reno, Nevada.
Relator maintains that secs. 9011-9020, N.C.L.1929, do not give the right to perpetuate the
testimony of an expected adverse party where no action has been filed and there is no legal
impediment to filing suit and this, apparently, is the real issue before this court.
The pertinent sections provide:
Sec. 9011. The testimony of a witness may be taken and perpetuated as provided in this
chapter.
Sec. 9012. The applicant shall present to a district judge a petition verified by the oath of
the applicant stating:
1. That the applicant expects to be a party to an action in a court in this state, and, in such
case, the name or names of the person or persons whom he expects will be adverse parties; or
2. That the proof of some fact or facts is necessary to perfect the title to property in
which he is interested, or to establish marriage, descent, heirship, or any other matter which it
may hereafter become material to establish, though no suit may at the time be anticipated, or,
if anticipated, he may not know the parties to such suit; and
3. The name of the witness to be examined and his place of residence, and a general
outline of the facts expected to be proved.
Sec. 9013. The judge to whom such petition is presented shall make an order allowing
the examination before any judge of a court of record, and prescribing the notice to be given,
which notice, if the parties are known and reside in this state, shall be personally served
on them, and if unknown, or nonresidents, such notice shall be served on the clerk of the
county where the property to be affected by such testimony is situated, and a copy
thereof published in some newspaper, to be designated by the judge making the order.
the notice to be given, which notice, if the parties are known and reside in this state, shall be
personally served on them, and if unknown, or nonresidents, such notice shall be served on
the clerk of the county where the property to be affected by such testimony is situated, and a
copy thereof published in some newspaper, to be designated by the judge making the order.
Sec. 9014. Upon proof of the service of the notice provided in the last section, it shall be
the duty of the judge before whom the testimony is ordered to be taken to proceed to take the
testimony of the witnesses named in said petition, upon the facts therein set forth, and the
taking of the same may be continued from time to time in the discretion of the judge.
Sec. 9017. If the trial be had between the persons named in the petition as parties
expectant, or their successors in interest, or between any parties wherein it may be material to
establish the facts which such testimony proves or tends to prove, upon proof of the death or
insanity of the witness or of his inability to attend the trial by reason of age, sickness, or
settled infirmity, the testimony, or certified copies thereof, may be used by either party,
subject to all legal objections. But if the parties attend at the examination, no objection to the
form of an interrogatory shall be made at the trial unless the same was stated at the
examination.
Relator seems to proceed upon the assumption that the application below was actually one
for discovery rather than for perpetuation of testimony. Apparently this assumption is based
on the fact that the testimony sought is that of the adverse party, which under the old equity
practice would bring it within the field of discovery. However, the old equity distinction
between party and witness would no longer appear valid. The inability to compel testimony of
an adverse party no longer exists under our statutes, or for that part, anywhere, in the United
States so far as we know. See State of Texas v. Chiles, 21 Wall. 488, 22 L.Ed. 650. If
testimony of an adverse party may be taken there would appear to be no reason why it
should not be subject to perpetuation as well.
appear to be no reason why it should not be subject to perpetuation as well. See Allen v. Dist.
Court, 69 Nev. 196, 245 P.2d 999.
[Headnotes 1-4]
Relator, insisting that the intended plaintiff is seeking discovery under the guise of
perpetuation has favored us with a learned brief and able oral argument emphasizing the
failure of the original petition for perpetuation to comply with the old equity requirements for
discovery. She feels that she is supported in this by our recent opinion in Allen v. Dist. Court,
supra. But an examination of the petition to perpetuate testimony and the order issued
pursuant thereto discloses a literal compliance with the sections above quoted under the
chapter heading Perpetuating Testimony. For the purpose of obtaining an order for such
perpetuation the petition need show nothing more than the statutory requirements. Kutner
Goldstein Co. v. Superior Court, 212 Cal. 341, 298 P. 1001. And a substantial compliance
with such requirements is all that is necessary. Eagle-Picher Lead Co. v. Mansfield Paint Co.,
194 N.Y.S. 386, 201 App.Div. 223. Kutner Goldstein Co. v. Superior Court, supra. Relator
seeks to distinguish the Kutner Goldstein case by pointing out a difference in the California
statute, which difference however, does not appear to us to be material. She also relies upon
the Allen case, supra, but the Allen case clearly dealt with discovery. Relator herself clearly
recognizes the distinction. She says: Review of the history of equity procedure on this point
reveals a plain distinction between a bill of discovery and a suit to perpetuate testimony. The
suit to perpetuate testimony was only for the conservation and preservation of testimony. The
bill of discovery was to probe the conscience of an adversary and was not primarily to elicit
testimony to be used at trial. Pomeroy's Treatise on Equity Jurisprudence. Volume 1,
paragraph 82, page 107, Fifth Edition. Subject to our observation above, we see no objection
to this characterization as far as it goes. Accepting it to such extent, it is still clear that the
original petition sought perpetuation rather than discovery.
such extent, it is still clear that the original petition sought perpetuation rather than discovery.
The facts sought to be established by the testimony are clearly within the knowledge of both
parties, and the petitioner sought the perpetuation of relator's testimony relative to facts
already known to the petitioner rather than a disclosure of facts. Petitioner did not seek to
probe the conscience of relator. Such being the case and the petitioner for perpetuation
having met all the formal requisites fixed by the statute, she was entitled to proceed and the
relator is not entitled to the peremptory writ preventing the same.
The briefs of the parties discuss the new rules of procedure which will become effective
January 1, 1953. It is true that such rules contain different requisites. We are, however, not
concerned with them for purposes of the disposition of the present application other than to
observe that this opinion will apparently have no force as precedent beyond the lapse of a few
days.
The alternative writ is hereby vacated and the petition for the peremptory writ is denied
and the proceedings dismissed, with costs to respondents.
Badt, C. J., and Merrill, J., concur.
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70 Nev. 7, 7 (1953) Primm v. City of Reno
ERNEST J. PRIMM, Petitioner, v. CITY OF RENO, and BILL A. LIGON, EDWIN
SEMENZA, CHARLES E. COWEN, THOMAS H. HARVEY, ROY BANKOFIER and
MARSHALL GUISTI, as Members of the City Council Thereof, Respondents.
No. 3722
January 20, 1953. 252 P.2d 835.
Proceeding in mandamus by which petitioner sought to compel municipality, and its
council members, to issue to him licenses to conduct gambling and dispense liquors on
premises owned by him in such city. The Supreme Court, Merrill, J., held that fact that
municipal zoning ordinance did not prohibit operation of bars and gaming houses in area in
which petitioner's premises were located, did not make denial of license a change in
ordinance without proper procedural steps, since the purposes of zoning regulations and
gambling and liquor licensing regulations are different and are derived from different
legislative authority.
Writ denied.
Griswold and Vargas, of Reno, and Ryan and Bruington, of Los Angeles, California, for
Petitioner.
Samuel B. Francovich, city attorney, and Bruce D. Roberts, assistant city attorney, of
Reno, for Respondents.
Alan Bible and Robert L. McDonald, of Reno, amici curiae.
1. Gaming; Intoxicating Liquors.
The licensing of businesses such as gambling or dealing in alcoholic liquors is not required to be
exercised by municipalities through any prescribed uniform rule of action, in view of the possible injurious
tendencies of such businesses.
2. Gaming; Municipal Corporations.
Municipalities have the power, under appropriate charter provisions, to regulate the business of gambling
as conducted within their geographical limits, and they may suppress it entirely or may limit the number of
establishments engaging in such business by the withholding or granting of licenses, and
as long as the action taken is not discriminatory or arbitrary, municipality need not
depend, for validity of its regulations, upon the formal adoption of some uniform rule
of action by ordinance or otherwise, regardless of whether a general licensing
ordinance exists. N.C.L.1931-1941, Supp., sec.
in such business by the withholding or granting of licenses, and as long as the action taken is not
discriminatory or arbitrary, municipality need not depend, for validity of its regulations, upon the formal
adoption of some uniform rule of action by ordinance or otherwise, regardless of whether a general
licensing ordinance exists. N.C.L.1931-1941, Supp., sec. 3302.
3. Municipal Corporations.
It is within the discretionary powers of a municipality to balance the public and private interests with
reference to conducting of gambling in determining the proper course and method of regulation.
4. Gaming.
Municipality's denial of application for license to operate gambling games and slot machines, for sole
reason that best interests of community would not be served by permitting spread of gambling casinos
beyond certain area, without previous promulgation of such policy in any form, was not arbitrary or
discriminatory although applicant was first to come within the limitation and slot machines existed in
business establishments generally throughout city. St.1937, c. 204, sec. 14; N.C.L.1931-1941 Supp., sec.
3302.
5. Gaming.
Municipality's denial of application for license to operate gambling games and slot machines, without
previous promulgation of policy in relation thereto in any form, was not confiscatory on ground that
investments had been made by applicant in anticipation of procuring license. St.1937, c. 204, sec. 14;
N.C.L.1931-1941 Supp., sec. 3302.
Fact that municipality had enacted a comprehensive zoning ordinance, specifying places where bars and
gaming might be permitted, did not make denial of license of applicant, whose premises were in area in
which bars and gaming might be permitted, a change in ordinance without the proper procedural steps.
N.C.L.1931-1941 Supp., sec. 5063.
7. Intoxicating Liquors; Municipal Corporations.
The regulation of land use by municipal zoning ordinances does not preclude and is not inconsistent with
the independent regulatory limitation or distribution of businesses pursuant to independent statutory
authority, including the independent regulation of bars and gaming houses. N.C.L.1931-1941 Supp., sec.
5063.
The segregation in zoning ordinance of certain types of uses and businesses for certain areas is not a
legislative sanction to carry on in such areas a business not expressly excluded therefrom, if there are
reasons apart from the zoning law why the particular business may not be legally carried on in that area.
OPINION
By the Court, Merrill, J.:
This is a proceeding in mandamus by which petitioner seeks to compel respondents to
issue to him licenses to conduct gambling and dispense liquors on premises owned by him in
the city of Reno. Applications for such licenses were duly made by petitioner and were denied
by the Reno city council on October 22, 1951. Petitioner then sought a writ of mandate from
the district court of Washoe county which was denied June 30, 1952. The petition in this
matter was filed August 8, 1952.
Petitioner acquired the premises in question in 1946 for the purpose of establishing a
gambling casino and bar. In 1951 he commenced extensive remodeling to this end. Upon
denial of his application the premises were converted by petitioner into a restaurant. The
premises are located on the west side of Virginia street in the block between Commercial
Row and Second street. Eighteen business establishments occupy premises on this side of the
block, including such businesses as restaurants, jewelry, clothing, sporting goods and drug
stores. There are two bars, one of which in connection with its bar business operates two
gambling games, poker tables and slot machines and is the only establishment on that side of
the block licensed for and operating gambling games. Many of the business houses, however,
have slot machines (numbering from 2 to 10) operated in connection with their various
business enterprises. Around the corner from petitioner's establishment, a club on
Commercial Row operates one gambling game and four slot machines in conjunction with a
bar business. Across the street from petitioner on the east side of Virginia Street the block is
solidly occupied by gambling establishments with the single exception of a bank building on
the corner of Second Street. These are, for the most part, sizable gambling casinos:
establishments where gambling is not an incidental or accessory operation, but is the
exclusive or primary operation.
where gambling is not an incidental or accessory operation, but is the exclusive or primary
operation. Petitioner's applications were for eight gambling games, 30 slot machines and a
bar.
The source of the city's regulatory power is the city charter by which the legislature
conferred on the council power to fix, impose and collect a license tax on, regulate, prescribe
the location or suppress all barrooms [or] gambling games * * *. (Article XII, section 10 (c)
fourth; charter, city of Reno; 1937 Stats. of Nev. 440.) Pursuant to this provision, ordinances
have been adopted by the city council relative to the issuance of gambling and liquor licenses.
Denial of petitioner's application was not based upon failure to comply with the requirements
of these ordinances but was based upon policy considerations which, while not in conflict
with existing ordinance provisions, were not themselves incorporated in any ordinance.
In 1949 a resolution was adopted by the council limiting to a specified maximum number
the bar licenses issuable in each of the wards of the city. This apportionment was modified by
further resolution in 1950 which also provided that as to a specified area (which included the
premises of petitioner) no licenses would be issued to premises not already licensed. Denial
of petitioner's application for a bar license was apparently based upon this resolution.
As to his application for gambling games and slot machines, the policy considerations of
the council had not previously been announced in any form whatsoever. The license was
simply denied for the reason that the members of the council were in unanimous agreement
that it would not be to the best interests of the community to permit the spread of gambling
casinos to the west side of Virginia Street or the increase of licensed gambling in that block
on the west side of Virginia Street.
Among the contentions of petitioner reflecting upon the legality of the council's action are
the following: That the council, under its charter powers, having elected to regulate by
ordinance, must be governed strictly by ordinance in action upon license applications;
that it may not deny a license upon considerations apart from ordinance.
That the council, under its charter powers, having elected to regulate by ordinance, must
be governed strictly by ordinance in action upon license applications; that it may not deny a
license upon considerations apart from ordinance.
That, regardless of prior enactments, the determinations of the council respecting
limitation and restriction of business are of such a legislative character that, to be valid, they
must have been enacted by ordinance.
That, considering the existence of gambling establishments in the area in question, the
action of the council in denying petitioner's application was arbitrary and discriminatory.
That, considering the substantial investment of petitioner in reliance upon ordinance
provisions and in consequent anticipation that a license would be granted, the action of the
council was confiscatory.
These contentions must be held to be without merit under what has remained the settled
law of this state for the past 21 years.
The prohibition against gambling was removed by statute effective March 19, 1931 (sec.
3302, N.C.L.1929, Supp. 1931-1941 et seq.). The nature and extent of the municipal power to
regulate gambling under appropriate charter provisions was the subject of a decision of this
court filed July 8, 1931. State ex rel. Grimes v. Board of Commissioners of Las Vegas, 53
Nev. 364, 1 P.2d 570, 572. To all intents and purposes, the operation of gambling as
permitted by the statute and limited by the regulatory powers of the state as there set forth has
been further limited, from the very inception of its legality, by the regulatory powers of
municipalities as enunciated in the Grimes case. The statute and decision, hand in hand, have
from the outset spelled out the limited rights of those who would engage in such operations.
[Headnote 1]
In the Grimes case the Las Vegas board was empowered by charter to fix, impose and
collect a license tax on all * * * games and gaming houses; to license and regulate
gambling as allowed by law and to prohibit gambling in all its various forms."
on all * * * games and gaming houses; to license and regulate gambling as allowed by law
and to prohibit gambling in all its various forms. Pursuant to this authority, an ordinance
relating to the licensing of gaming had been enacted under which the application in question
had been made. The board rejected the application upon the ground that six licenses had
already been granted and in the view of the board public interest requires that no additional
licenses * * * be granted in this city until the further order of this board and until further or
other gaming licenses * * * are reasonably necessary for the accommodation of the public * *
*. The court considered the contention of the applicant that the discretion to grant or
withhold a license must be exercised through some prescribed uniform rule of action, as
otherwise it would rest within the power of the council to grant or refuse at their mere whim
or caprice and therefore amount to a discrimination unlawful under the constitution. It held
that such was not necessary in the case of businesses such as gambling or dealing in alcoholic
liquors which may be regarded as tending to be injurious. With reference to the municipal
power of regulation it was stated:
That the board of commissioners has power under this [charter provision] to regulate
gambling in the city of Las Vegas, and has power, notwithstanding the legislature has
legalized gambling, to absolutely prohibit it within the city limits, or prohibit it in part by
zoning, cannot be denied. The power to restrict the number of licenses in the city is, we think,
a very necessary implication from the power to license and regulate gambling. This discretion
is derived from the police power of the state. It is necessarily incidental to the delegated
power to license and regulate. On account of the nature of the business of gambling, which is
capable of being so conducted as to be a source of evil, a very wide discretion is thus
conferred, not only to restrict the number of licenses in the city, but to pass all reasonable
rules and regulations concerning it which the city authorities may deem necessary for the
police government of the municipality."
regulations concerning it which the city authorities may deem necessary for the police
government of the municipality.
[Headnote 2]
By the Grimes decision, then, it is established that under appropriate charter provisions
municipalities have the power to regulate the business of gambling as conducted within their
geographical limits; that in the exercise of this power they may suppress gambling entirely, or
may limit the number of establishments engaging in such business or the area within which
they may operate; that regulation by limitation may be exercised by the granting or
withholding of licenses and, so long as the action taken is not discriminatory or arbitrary,
need not depend for its validity upon formal adoption of some uniform rule of action by
ordinance or otherwise; and this regardless of the existence of a general licensing ordinance.
(In that case, as in the case at bar, it is to be noted that the general licensing ordinance did not
purport to be an exercise of any charter power of limitation. The ordinance did not touch
upon that subject.)
It may be argued that adoption of any policy of restriction such as that here adopted
should, out of regard for existing property rights and investments and in the interests of
stability and business confidence, receive the formality and publicity of action by ordinance
rather than the informality of action by resolution or the outright surprise which may well
attend individual action upon license applications. On the other hand it must be recognized
that the legalizing of gambling has placed a tremendous burden of regulation upon the
municipalities of this state. Such bodies may well feel that complete freedom of action to
meet changing conditions is essential to the paramount public interest; that such freedom
cannot exist where limited by the formal legislative requirements of action by ordinance.
[Headnote 3]
In effect it is the import of the Grimes decision that it is within the discretionary powers of
the governing municipal board to balance these public and private interests against each other
in determining the proper course and method of regulation. We may not, then, question a
determination in favor of what is deemed to be the paramount public interest so long as the
action taken be not arbitrary or discriminatory.
[Headnotes 4, 5]
The Grimes case itself establishes that the action here taken may not be so characterized. It
was action of limitation which that decision expressly recognizes as a proper mode of
regulation. That petitioner was the first to fall under the limitation does not render the
regulation improper. In such cases there must always be a first to be turned away empty
handed.
Nor does the existence of slot machines in business establishments generally throughout
the city render arbitrary or discriminatory the rejection of petitioner's application for such
machines. It is one thing to apply for an appropriate number of machines as incidental or
accessory to a restaurant business. It is quite another to apply for 30 machines to form an
integral part of a gambling operation.
Nor may we regard the action of the council as confiscatory in the light of petitioner's
anticipatory investment. The requirement of a license was known to him. The hazards of
regulation were known to him. There has never been a time in the history of legalized
gambling in this state when the operator or investor in such enterprises has been free from
such occupational risks. As has been stated, Surely the individual cannot be permitted to
speculate upon the community's not exercising its constitutional powers and then claim that
the community is barred from interfering with the speculation. (Bettman, Constitutionality
of Zoning, 37 Harvard L.R. 834, 848.)
[Headnote 6]
Petitioner's final contention raises a point of distinction from the Grimes case. In 1941 by
statute (sec. 5063, N.C.L.1929, Supp. 1931-1941 et seq.) the legislature authorized enactment
of municipal ordinances providing for city planning including regulation of the use of land. In
1947, expressly pursuant to this statutory authority, Reno enacted by ordinance a
comprehensive land use zoning plan which specified bars and gaming as permitted land uses
in the zone in which petitioner's premises are located. (Reno Municipal Code, sec. 14-54.) It
is contended that denial of petitioner's license amounted to a change in the ordinance without
the taking of the prescribed procedural steps; that the city may no longer, in regulation under
its charter powers, prescribe the location of barrooms or gaming establishments save in
accordance and consistently with the provisions of the zoning ordinance, since that ordinance
constituted a formal exercise of such regulatory power.
This, however, is to confuse the nature and purpose of the two types of regulation involved
and to read into the permissive language of the zoning ordinance a meaning not consistent
with the general purposes of land use zoning. See: McQuillin on Municipal Corporations (3d
ed.) sec. 25.12. Each type of regulation is the subject of separate and distinct legislative
authority.
Regulation of land use through zoning has become desirable in urban communities in
order that a reasonable and orderly segregation of residential, commercial and industrial areas
be had. Such regulation is primarily concerned with uniformity of land use and stability of
community growth. It is general and comprehensive in scope and the considerations which
govern it are, accordingly, general and comprehensive. See: Bettman, Constitutionality of
Zoning, supra; note, 17 Va. L.R. 202; 58 Am.Jur. 957, Zoning, sec. 27.
Regulation of certain types of businesses through discretionary licensing is made necessary
by the fact that the inherent character of those businesses is such that without regulation
they might be so operated as to become nuisances.
the inherent character of those businesses is such that without regulation they might be so
operated as to become nuisances. Such regulation is primarily concerned with proper
operation or with limitation or distribution or outright suppression of operation. It is special
and limited in scope and governed by consideration of the circumstances applying, at the time
application is made, to the particular business under consideration, the person applying and
the location proposed.
While some authorities appear not to object to an overlapping of considerations in the
exercise of these differing types of regulation, (See: State v. Payne, 131 Conn. 647, 41 A.2d
908.), others are inclined to hold each type strictly to its proper sphere. For example it has
been said (Bassett on Zoning, page 53): Neither can distribution of business be forced by
zoning. If a locality is filled with theatres, and congestion is great on sidewalks and streets,
the municipality cannot lawfully amend its zoning ordinance to exclude new theatres. The
police department can control the traffic, or some licensing law may be devised to prevent
new theatres, but it is not a proper field for zoning. The best zoning argument for a new
theatre permit is that the block is already largely occupied with theatres. Just so a zoning plan
cannot space gasoline stations a certain distance apart. Such a regulation is arbitrary and
unconstitutional on its face, so far as zoning principles are concerned. If three gasoline
stations are on opposite corners, a fourth will ordinarily be justified in zoning. The fair
distribution of different kinds of business must be approached through private covenants or
some method of trade regulation by the state or city, if any can be found. Zoning as we now
understand it is not the proper instrumentality.
[Headnote 7]
If a limitation upon the operation or distribution of gambling establishments is, then, to be
accomplished, in the views of this authority it may not be accomplished through an
amendment of the zoning ordinance, but must be through some independent method of
regulation.
in the views of this authority it may not be accomplished through an amendment of the
zoning ordinance, but must be through some independent method of regulation. We need not
go so far. We need not here decide as to the legality of land use zoning as a method of control
in the distribution or limitation of businesses which, by virtue of their character, are made
subject to regulatory control of that nature. It should in any event at least be clear that the
regulation of land use by zoning does not preclude and is not inconsistent with independent
regulatory limitation or distribution of businesses pursuant to independent statutory authority.
As stated in Ellis v. City of Winter Haven (Fla. 1952) 60 So.2d 620, 622, [The statute
authorizing a Winter Haven zoning ordinance] was enacted for an entirely different purpose
than that which actuated the Legislature in reserving to the cities their power to regulate the
location of liquor establishments within their limits. The purpose of [the zoning
authorization] as in all zoning laws, was to authorize the city of Winter Haven to regulate,
systematize and stabilize the growth and development of its urban area; and the fact that the
adoption of a comprehensive zoning plan for the purpose might at the same time amount to a
regulation of the location of places of business of liquor licenseestogether with all other
business establishmentsis only incidental to the accomplishment of the main purpose. To
the same effect is Moore v. McCarver (Tex.Civ.App. 1951), 240 S.W.2d 443.
In Marchesi v. Selectmen of Winchester, 312 Mass. 28, 42 N.E.2d 817, 819, the petitioner
was denied a license to operate a bowling alley in a district which was zoned for that type of
business. The court, in upholding the action of the board, stated, The fact that the zoning
by-law permitted bowling alleys in the districts in which they were to be located did not
authorize their use in the absence of a license from the selectmen. * * * That such use was
permitted by the zoning by-law could be given such weight, if any, as the Respondents
thought it was entitled to in conjunction with the various other matters involved in
coming to an honest and impartial decision.
given such weight, if any, as the Respondents thought it was entitled to in conjunction with
the various other matters involved in coming to an honest and impartial decision. The general
aim, both of the zoning by-law and of the licensing statute, is the promotion of the public
welfare, but each is independent of the other and seeks to accomplish its purpose by different
means.
To say, then, as the land use ordinance says, that it is desirable in the public interest that
such gambling establishments as may be licensed should (together with certain other
businesses) be segregated within a specified commercial zone, does not mean that all property
within that zone may, in the public interest, be devoted to gambling. To say that all property
within that zone is generally adaptable to gambling use gives it no vested right to such use.
The necessity for a license remains as does the regulatory power which is the principal
purpose of the grant of authority to license.
[Headnote 8]
As stated in Marshall v. Holbrook, 276 Mass. 341, 177 N.E. 504, 506, But this zoning
ordinance is not in its legal effect like a license or legislative sanction to carry on in a district
every kind of business that may not be expressly excluded therefrom, and if there are reasons
apart from the zoning law why the business may not legally be carried on in the district, the
zoning law in the case at bar furnishes no protection to it. To the same effect: Beane v. H. K.
Porter, Inc., 280 Mass. 538, 182 N.E. 823; Burroughs Landscape Constr. Co. v. Town of
Oyster Bay, 186 Misc. 930, 61 N.Y.S.2d 123; People v. Elkin, 196 Misc. 188, 80 N.Y.S.2d
525.
Writ denied.
Eather, C. J., and Badt, J., concur.
____________
70 Nev. 19, 19 (1953) Cram v. Wells Cargo Et Al.
ROY CRAM, Appellant, v. WELLS CARGO INC., a Corporation, JOE W. WELLS, F. M.
FRANDSEN and NEVADA ROCK AND SAND COMPANY, INC., Respondents.
No. 3714
February 13, 1953. 253 P.2d 200.
Appeal from the Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Chattel mortgagor executed bill of sale covering mortgaged dirt-moving equipment to a
company paying to mortgage holder the balance due on the mortgage. The company also took
an assignment of the mortgage from the holder. The company sold the equipment to plaintiff
without notice to mortgagor. The mortgagor retook possession of some of the equipment, and
plaintiff sued mortgagor for claim and delivery. The mortgagor counterclaimed for
conversion and joined the company and others as defendants to the counterclaim. From a
judgment for the plaintiff upon its complaint and upon the counterclaim for the defendants
thereto, the mortgagor appealed. The Supreme Court, Merrill, J., held that the transaction
between mortgagor and the company was a security transaction and was to be regarded as a
chattel mortgage and that by virtue of a provision in such mortgage the company had power
to foreclose by private sale without notice.
Judgment affirmed.
See also 70 Nev. 109, 256 P.2d 96.
Taylor & Gubler, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondents Wells Cargo Inc., a Corporation,
and Joe W. Wells.
C. William Coulthard, of Las Vegas, for Respondents F. M. Frandsen and Nevada Rock
and Sand Company, Inc.
1. Chattel Mortgages.
In proceeding wherein chattel mortgagor claimed a conversion arising out of sale of mortgaged property
by the party who had paid the balance owing on the mortgage and had taken from the mortgagor a bill of
sale, evidence was sufficient to show that the transaction between mortgagor and such party was not an
outright sale of the property but was a security transaction which the mortgagor and such party regarded as
a chattel mortgage.
The covenant dealing with mortgagee's right to sell with or without notice to mortgagor at either public or
private sale, incorporated in chattel mortgage by reference to the statute, is not limited to mortgages of
livestock. N.C.L.1929, sec. 4330.
3. Chattel Mortgages; Mortgages.
The statute providing that in any mortgage of realty or personalty the parties may adopt by reference
certain covenants was intended to simplify the drafting of mortgage instruments and to enable parties to
include standard provisions by simple reference rather than by setting them forth in full and was not
intended to provide to parties rights which were not theretofore available to them by contract or to take
from them the right to contract in certain respects. N.C.L.1929, sec. 4330.
Where chattel mortgage on dirt-moving equipment incorporated therein by reference to the statute a
covenant dealing with the mortgagee's right to sell with or without notice to mortgagor at either public or
private sale, the assignee of the mortgage had the power to foreclose by private sale without notice.
N.C.L.1929, sec. 4330.
OPINION
In December, 1949, Cram as mortgagor was faced with a suit to foreclose a chattel
mortgage covering certain heavy dirt-moving equipment, which mortgage was held as
security for a note on which a balance of $39,088.90 remained due. In an effort to avert
foreclosure, Cram sold certain of the equipment covered by the mortgage for the sum of
$24,500. This sum was applied upon the mortgage and the equipment sold was released
therefrom. Following negotiations between Cram and the Nevada Rock & Sand Co., the
balance of $14,588.90 was then paid to the mortgage holder by that company which, on
January 7, 1950, took an assignment of the mortgage from the holder and, in addition, a
bill of sale from Cram covering the five items of equipment remaining subject to the
mortgage.
which, on January 7, 1950, took an assignment of the mortgage from the holder and, in
addition, a bill of sale from Cram covering the five items of equipment remaining subject to
the mortgage.
On March 15, 1950, all five items of equipment were sold by Nevada Rock & Sand for the
sum of $16,500 to Wells Cargo, Inc., which then took possession. No notice of the sale was
given to Cram and Nevada Rock & Sand has since retained the whole of the sale proceeds.
On December 24, 1950, Cram retook possession of two of the items of equipment and this
action was brought by Wells Cargo for claim and delivery of the two items. Cram
counterclaimed for conversion of the five items covered by the transaction with Nevada Rock
& Sand, claiming equitable title and right to possession thereof for the asserted reason that
such title and right had never properly been foreclosed. Nevada Rock and Sand and certain
individuals were joined as defendants to the counterclaim. Following trial before the court
without a jury, judgment was rendered for Wells Cargo upon its complaint and, upon the
counterclaim, for the defendants thereto. Cram has taken this appeal from that judgment.
Two questions are presented upon this appeal.
First: Whether the transaction between Cram and Nevada Rock and Sand was a security
transaction and to be regarded as a chattel mortgage; or whether, as contended by
respondents, it was an outright sale of the equipment for $14,588.90.
Second: If it was, in character, a chattel mortgage and not an outright sale, whether Nevada
Rock & Sand had power to foreclose by private sale without notice.
[Headnote 1]
Upon the first question, we are convinced from the record that the transaction was
intended by the parties as one for security only and not as an outright sale. From the
testimony of both the president and the treasurer of Nevada Rock & Sand it is clear that the
sum paid by it was regarded by it as a loan rather than as a purchase price; that the money
thereafter was regarded as due and owing from Cram; that with respect to the equipment
and its desire for a bill of sale thereto, its concern was not that of acquisition but rather
that of ability to secure speedy realization by sale.
purchase price; that the money thereafter was regarded as due and owing from Cram; that
with respect to the equipment and its desire for a bill of sale thereto, its concern was not that
of acquisition but rather that of ability to secure speedy realization by sale. The company had
allowed Cram to February 15, 1950, within which to make payment of the balance due.
Respondents contend that this was simply an option period during which Cram was given the
right to repurchase the equipment. A letter written to Cram on February 7, 1950 by the
treasurer of the company, however, conclusively demonstrates that the transaction, as the
company understood it, constituted a chattel mortgage and not a sale with option to
repurchase. The letter reads:
This letter is to advise you that your chattel mortgage bearing date of December 1, 1948,
in an original amount of $48,000.00 and assigned to us on January 7, 1950, with a balance of
$14,558.99 including interest and other advances to that date, together with interest at the rate
of 5% per annum and any and all other advances that has been made or will be made, is now
past due and payment should be made at our office in Reno, Nevada, on or before February
15th, 1950.
Demand is hereby made that all such amounts due under the chattel mortgage be made on
or before that date.
Should payment not be made on the above date, we shall recover the amount due
according to the terms of the chattel mortgage.
[Headnotes 2-4]
Upon the second question, however, it is clear that the sale to Wells Cargo was pursuant to
a power of sale incorporated in the chattel mortgage assigned to Nevada Rock & Sand. The
mortgage instrument contained the following:
Upon default by the Mortgagor of any of the terms, covenants, conditions or agreements
of this Mortgage, it is agreed that all of the rights granted the Mortgagee, under Covenant No.
13 of [sec. 4330, N.C.L.1929], are hereby granted to the Mortgagee herein and extended
to all of the chattels herein mortgaged."
hereby granted to the Mortgagee herein and extended to all of the chattels herein mortgaged.
Section 4330, N.C.L.1929 provides: In any mortgage of real or personal * * * property,
hereafter made, the parties may adopt by reference all or any of the following covenants,
agreements, obligations, rights and remedies: * * *. Among the rights granted the mortgagee
by covenant No. 13 is the right to sell with or without notice to the mortgagor, at either
public or private sale. That covenant reads: Upon default of any of the terms, conditions,
covenants, or agreements of any chattel mortgage whereby live stock is mortgaged, it is
agreed that the mortgagee may, without foreclosure and without legal proceedings and
without any previous demand therefor, with the aid or assistance of any person or persons,
enter upon the premises and ranges of the mortgagor or such place or places as any of the
property subject to the lien of the mortgage is or may be found, and take, lead, drive or carry
away the mortgaged property or any part thereof, and with or without notice to the mortgagor,
at either public or private sale, sell and dispose of the same or so much thereof as may be
necessary to pay the amount and sums secured by the mortgage, for the best price it can
obtain, and out of the moneys arising therefrom it shall retain and pay the sum or sums then
due or payable under the lien of the mortgage, and interest thereon, and all charges and
expenses incurred in gathering, feeding, caring for, and selling the property or any part
thereof, and any other expenses and charges incurred by the mortgagee, and all other sums
secured by any of the terms of the mortgage, and any overplus shall be paid to the mortgagor.
The mortgagee is expressly authorized and empowered, upon any such sale, to make and
execute such bills of sale or other conveyances necessary to convey to the purchaser or
purchasers thereof an absolute title in the property so sold. * * *
Cram contends that this covenant by its express terms is limited to mortgages of livestock
and therefore is not available in such a case as this.
available in such a case as this. In so contending, however, Cram misconceives the purpose
and effect of the act in question. The purpose is to simplify the drafting of mortgage
instruments; to enable the parties to include standard provisions by simple reference rather
than by a setting forth in full. It is not intended to provide to parties rights which were not
theretofore available to them by contract or to take from them the right to contract in certain
respects. It cannot be denied that had the parties expressly agreed that the mortgagee have the
rights covered by covenant 13, setting forth those rights at length in the mortgage instrument,
such an agreement would have been binding. That such rights were not set forth at length
does not serve to nullify the agreement of the parties in this regard when the terms of the
agreement are, by specific reference, so clearly made subject to ascertainment.
We conclude that the sale by Nevada Rock & Sand to Wells Cargo was pursuant to a grant
of power of sale; that good title and right to possession passed thereby to Wells Cargo. If
Cram possesses any claim against Nevada Rock & Sand for accounting or overplus, his
remedy is not in conversion.
Judgment affirmed with costs.
____________
70 Nev. 25, 25 (1953) Bell Telephone Co. v. Public Service Commission
BELL TELEPHONE COMPANY OF NEVADA, a Corporation, Appellant, v. PUBLIC
SERVICE COMMISSION OF NEVADA, Respondent.
No. 3715
February 16, 1953. 253 P.2d 602.
Appeal from judgment of First Judicial District Court, Ormsby County, Clark J. Guild,
Judge, dismissing the complaint of Bell Telephone Company of Nevada which sought to
vacate as confiscatory an order of the Public Service Commission of Nevada suspending a
proposed new schedule of increased rates and keeping the existing rates in effect, and appeal
from order denying new trial.
The Supreme Court, Badt, J., held that telephone rates for intrastate telephone service in
effect as result of order of Public Service Commission, which rates resulted in a net return to
company of less than one-half of 6.47 percent in intrastate business, were unjust,
unreasonable and confiscatory.
Reversed.
Samuel Platt, of Reno, and Francis N. Marshall, of San Francisco, for Appellant.
W. T. Mathews, Attorney General, George P. Annand, Wm. N. Dunseath and John W.
Barrett, Deputy Attorneys General, all of Carson City, for Respondent.
1. Telegraphs, Telephones and Radio.
Supreme Court would have duty to correct situation if arbitrary reduction of rate base of telephone
company by Public Service Commission, or arbitrary increase of apparent net earnings, resulted in false
conclusion as to rate of return and correction of figures in accord with undisputed evidence showed that
fair and reasonable return was not being made by company, but supreme court could not quarrel with
methods used by commission or with methods approved by district court regardless of how faulty they were
as guide in arriving at determinations involved in evaluating property or determining net return, if end
result of orders made permitted company a just and reasonable return. N.C.L.1929, secs. 6100-6146, 6116,
6127, 6133.
2. Commerce; Telegraphs, Telephones and Radio.
Federal jurisdiction in rate matters pertaining to telephone companies is restricted to interstate commerce,
and jurisdiction of state in such matters is restricted to intrastate rates in their respective jurisdictions.
Properties of telephone companies used in both interstate and intrastate commerce must be separated, for
rate making purposes in respective state, in accordance with proportionate use.
Telephone rates for intrastate telephone service in effect in state as result of order of Public Service
Commission, which resulted in a net return to company of less than one-half of 6.47 percent in intrastate
business, were unjust, unreasonable, and confiscatory. N.C.L.1929, secs. 6100-6146, 6116, 6127, 6133.
OPINION
By the Court, Badt, J.:
This appeal requires us to determine whether the telephone rates now in effect as the result
of respondent commission's order afford appellant a just and reasonable return. We hold that
they do not, that the rates presently enforced are unreasonable, inadequate and confiscatory,
and that the collection of the increased rates sought by the utility's new schedules may no
longer be suspended.
This proceeding was initiated by the filing by Bell Telephone Company of Nevada on
April 14, 1950 of new schedules of intrastate rates and charges calculated to increase its gross
annual intrastate revenue by $304,000.
1
The cities of Reno and Sparks, the county of
Washoe and sundry individuals filed protests through their respective counsel and other
representatives. After hearing, the commission filed an opinion and order January 4, 1951,
holding that because of the then present unsettled world conditions and the inadequacy
of present trends as to plant growth, costs and prices, no guide was afforded as to either
costs or earnings for the next few years.
____________________

1
The rights and the obligations of the utility and the public service commission and the procedures to be
followed are fixed by N.C.L.1929, secs. 6100-6146. When new rates are filed the commission may suspend their
operation pending a hearing. After such hearing the commission shall have the power to fix * * * such rate or
rates * * * as shall be just and reasonable. Id. sec. 6127.
January 4, 1951, holding that because of the then present unsettled world conditions and the
inadequacy of present trends as to plant growth, costs and prices, no guide was afforded as to
either costs or earnings for the next few years. It held specifically that applicant's current
rates as fixed by order of the commission on November 19, 1949,
2
have not been in effect a
sufficient length of time to accurately determine whether or not they should be again revised.
It accordingly denied the increase without prejudice. Thereafter a rehearing was granted by
the commission upon the company's petition alleging that more recent information
demonstrated that its estimate of future earnings had been conservative, and that the present
rates had proved inadequate to provide a reasonable return upon intrastate operations for over
a year of trial. The general nature of the company's testimony at the rehearing was to show a
downward trend of earnings and increased costs due to inflationary forces. On June 25, 1951
the commission again indefinitely suspended the new rates and the utility sought a judicial
review by filing its complaint in the district court under the provisions of sec. 33 of the public
service commission law, N.C.L.1929, sec. 6133. Additional evidence was presented to the
court by the company and by the commission, and the court, pursuant to the statute, ordered
the same transmitted to the commission. On December 14, 1951 the commission reaffirmed
its previous orders. It specifically based its suspension of the proposed increased rates upon
its consideration of the total interstate and intrastate operation. The entire matter was then
submitted to the court, and the attorney general (who apparently had not represented the
commission in the proceedings before it) then moved to remand the case again to the
commission for findings {1) of an intrastate rate base3 and {2) a fair rate of return on the
intrastate operation.
____________________

2
This was the date on which the commission had granted an application, filed June 28, 1949, by the company
for an increase in rates. The increase in annual gross intrastate revenue then sought was $617,000. It was granted
to the extent of $540,000. This was the first increase sought by the company since its incorporation in 1913.
before it) then moved to remand the case again to the commission for findings (1) of an
intrastate rate base
3
and (2) a fair rate of return on the intrastate operation. Over the
objection of the utility (which contended that no authority existed for such second remand
and that the only action open to the court was to set aside the alleged erroneous order of the
commission), the court again remanded the matter to the commission for the purpose of
making such findings. Thereafter, on March 5, 1952, the commission specifically found (1)
that the fair value of the telephone property and plant used solely for intrastate rate making
purposes was $3,499,496, and (2) that the rate of return the utility was entitled to earn on its
intrastate base was 6.47%. It found that it was actually obtaining such return and again
rejected the rates filed by the company. The district court then, upon submission of the entire
matter, filed its opinion and decision presented to this court for review on the present
appeal.
____________________

3
Relying on Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418, 432, 42 L.Ed. 819, in which Mr. Justice Harlan,
speaking for the United States Supreme Court, said: In our judgment, it must be held that the reasonableness or
unreasonableness of rates prescribed by a state for the transportation of persons and property wholly within its
limits must be determined without reference to the interstate business done by the carrier, or to the profits
derived from it. The state cannot justify unreasonably low rates for domestic transportation, considered alone,
upon the ground that the carrier is earning large profits on its interstate business, over which, so far as rates are
concerned, the state has no control. Nor can the carrier justify unreasonably high rates on domestic business
upon the ground that it will be able only in that way to meet losses on its interstate business. So far as rates of
transportation are concerned, domestic business should not be made to bear the losses on interstate business, nor
the latter the losses on domestic business. It is only rates for the transportation of persons and property between
points within the state that the state can prescribe; and when it undertakes to prescribe rates not to be exceeded
by the carrier, it must do so with reference exclusively to what is just and reasonable, as between the carrier and
the public, in respect of domestic business. The argument that a railroad line is an entirety; that its income goes
into, and its expenses are provided for out of, a common fund; and that its capitalization is on its entire line,
within and without the state,can have no application where the state is without authority over rates on [its]
entire line, and can only deal with local rates and make such regulations as are necessary to give just
compensation on local business.
and decision presented to this court for review on the present appeal. The district court
revised the commission's figures in several respects, mostly by way of correction of
mathematical errors, found that the company was earning 6.28% on its intrastate operations,
sustained the theories and the findings of the commission throughout and dismissed the
action.
Issues Narrowed
In the consideration of the appeal as submitted to us and by reason of our conclusions
upon certain of the issues which are determinative of the appeal, the court is relieved of the
necessity of discussing and determining a number of points to which counsel have devoted
much attention in their briefs. We proceed first to eliminate these matters from consideration.
1. Jurisdiction of Court to Make Second Remand to Commission.
A very material part of the briefs of both parties is devoted to this question. As above
noted, after the first hearing by the commission and the filing of the action in the district court
and the introduction of further evidence there, that court properly, under the provisions of the
statute, remanded the case to the commission for further determination. When the
commission thereafter again suspended the operation of the new rates, basing its action upon
the company's property and earnings both interstate and intrastate, and the attorney general, in
effect confessing error, moved for a further remand for a finding on the intrastate plant and
intrastate earnings, the utility strenuously opposed the motion and insisted that the
jurisdiction of the court had been exhausted. Some 30 pages of its printed brief in this court
are devoted to this point as an assignment of error.
However, as we are satisfied that for other reasons the order of the commission must be set
aside, it becomes unnecessary for us to determine the question of the court's jurisdiction to
order the second remand.
2. The Method to be Used to Establish the Rate Base.
There is likewise eliminated from the present appeal any controversy as to the method to
be used in arriving at the rate base. In City of Fort Smith v. Southwestern Bell Tel. Co.
(Ark.), 247 S.W.2d 474, the court cites Pond on Public Utilities in discussing such separate
methods as (a) original cost, (b) cost of reproduction, (c) outstanding capitalization, (d)
present value, (e) prudent investment and (f) net earnings. In an informative article by Mr.
Everett C. McKeage in the December 1948 American Bar Association Journal, 34 A.B.A.
Journal 1096, the author presents a historical analysis of the various tests and rules applied
over a long period of years by the United States Supreme Court. The Journal editors, in a
preface to the article, refer to the problem of valuation as one that has troubled the courts
and state commissions for many years * * * a field where the glorious uncertainty of the law'
reigns * * *. The various schedules filed by the utility and the figures used by it in the
several hearings before the commission and in the district court and in its brief in this court
indicate the rate of return resulting from application of net revenue to a rate base fixed in any
one of three ways. 1. The highest rate base results from establishing what is called current
cost rate base.
4
2. The next highest figure results from applying an original cost rate base.
3. The third and lowest figure results from applying a net book cost rate base, which is the
actual cost, less the depreciation reserve. While its witnesses were of opinion that current cost
rate base was really the fairest method of arriving at the present fair value of the property, the
utility, in answer to questions by the court during the oral argument, stated that it did not
contend for the use of any single one of these methods.
____________________

4
This in turn is not as high a figure as would result from fixing a rate base by way of reconstruction cost.
This would add promotion expense, expense of acquiring the property, brokers' fees and commissions and
various items of that nature.
of any single one of these methods. In like manner the commission stated that it did not
contend that any one particular method should be used, but insisted that it had the right to use
all methods and all available evidence in order to arrive at the fair value of the property
devoted to the public service. So we have, as noted, no real contention as to the method to be
applied. As the company submits, as agreeable to it, its net book cost rate base, which gives
the lowest figure for fair value and indicates the highest return and is therefore most
prejudicial to it in the present controversy, and as the commission naturally takes no
exception to this method, we have used the same as a basis for the conclusions reached. This
is not a judicial determination of the fact that such is the proper method or the only proper
method or an exclusive method to use in fixing the rate base of this or any other public utility.
In the present case the consideration of a current cost rate base or an original cost rate base
would simply result in increasing the finding of present fair value and further diminishing the
rate of return, thus unnecessarily presenting a fortiori support of the conclusions reached by
us.
3. Fair Rate of Return.
Upon the second remand to the commission by the court, with directions to find the rate of
return to which the company was entitled, the commission found such rate to be 6.47%. The
lower court concurred. The company contends that, under the testimony of its expert
witnesses, anything under 7.5% would not be a fair rate of return. As we have concluded that
the rates established by the commission and approved by the court fix a return to the company
at a rate very materially less than 6.47%, it is therefore unnecessary to establish an a fortiori
case by determining whether or not under the evidence a rate of return should be established
between 6.47% and 7.5%. For the purpose of this opinion we are justified in assuming that in
any event any return substantially less than 6.47% is unjust and unreasonable, but without
prejudicing the right of this court in any future proceeding {City of Fort Smith v.
Southwestern Bell Tel. Co. {Ark.), 247 S.W.2d 474), under the circumstances there
appearing, to consider the question of whether a rate of return in excess of 6.47% might
not likewise be deemed unjust and unreasonable, or whether a return of less than 6.47%
might not be termed just and reasonable.5
4. Debt Financing.
unreasonable, but without prejudicing the right of this court in any future proceeding (City of
Fort Smith v. Southwestern Bell Tel. Co. (Ark.), 247 S.W.2d 474), under the circumstances
there appearing, to consider the question of whether a rate of return in excess of 6.47% might
not likewise be deemed unjust and unreasonable, or whether a return of less than 6.47%
might not be termed just and reasonable.
5

4. Debt Financing.
Before the commission and before the district court, one of the protestants against the
increased rates filed a brief in which it contended that a great saving to the telephone users
could be effected by debt financing; that a proper and safe ratio of a funded debt to the entire
capital structure was perhaps 30% to 40%; that operating with money thus obtained at a
possible interest rate of 3 1/4% to 3 1/2%, the telephone users would benefit by the
elimination pro tanto of equity capital which might otherwise claim a return of 6% to 7%;
that a further saving would be effected through deduction of such interest payments from
revenue for income tax purposes. The attorney general, on behalf of the commission, pursued
this thought in his cross examination of the utility's witnesses. The utility's reply was that
with a financial structure thus weakened, and with danger of not being able to meet interest or
principal payments when due and the possibility of a resulting receivership, a return of at
least 10% on the equity capital would be necessary to attract investors, and that no saving
would result. In its opinion of January 3, 1951, the commission referred to testimony of the
expert financial witnesses for the protestants as being too "theoretical or academic
especially in regard to bond earnings and interest rates" to be convincing.
____________________

5
Appellant and respondent have both cited many cases determined by the state commissions, inferior courts
and courts of last resort in which varying rates of return have on the one hand been held to be so low as to be
confiscatory and on the other hand to provide a just and reasonable return, whether upon net investment, upon
stock capital, upon net book cost, upon fair value, etc. Under the circumstances of this case as above recited, it
will serve no purpose for us to discuss these cases cited by the parties.
theoretical or academic especially in regard to bond earnings and interest rates to be
convincing. It was nevertheless inclined to feel that a funded debt of 40% would be
appropriate. It concluded: While we do not, on the showing made, accept the applicant's
present capital structure as satisfactory and believe that 40% of funded debt at 3 1/4% or less
would save money, it is certain that applicant is constantly advised, if not actually directed, as
to its financial operations by the parent company. No part of this situation is in issue before
this court, as neither the commission's order nor the court's judgment affirming same seeks
any justification or support in the company's complete operation on equity capital, nor did
respondent in its brief or oral argument place any reliance on the point. Nor does it appear
that the commission took any such possible saving into consideration when it found that
6.47% was a fair return. We therefore refrain from considering it or discussing its merit, if
any. But see the opinion of the learned Chief Justice Stanley E. Qua, speaking for the
Supreme Judicial Court of Massachusetts in New England Tel. & Tel. Co. v. Department of
Public Utilities, 327 Mass. 81, 97 N.E.2d 509. See also Southwestern Bell Tel. Co. v. State,
204 Okla. 225, 230 P.2d 260.
The Issues
[Headnote 1]
It is obvious that in determining the paramount issue, as to whether the rates in effect as
the result of the commission's order and the court's approval thereof produced a just and
reasonable return upon the company's property devoted to the public use, a number of factors
must be taken into consideration, each of which becomes then an issue in itself. That is to
say, as the rate of return is determined by applying the two factors, namely, the valuation
given to the property and the net operating revenue returned, the determination of such value
and the determination of such net revenue each becomes a major and controlling issue. In
considering each of these major issues, however, many elements require determination.
require determination. Each such determination in turn is an element that could be controlling
in our final conclusions. Yet it is not our province to quarrel with methods used by the
commission or with methods approved by the district court, no matter how faulty they may
have been as means or guides in arriving at sundry determinations involved either in
evaluating the property or determining the net return if the end result of the orders made is to
permit the company a just and reasonable return. Federal Power Commission v. Hope Natural
Gas Co., 320 U.S. 591, 64 S.Ct. 281, 88 L.Ed 333; N.C.L.1929, sec. 6116, Id. sec. 6127;
Southwestern Bell Tel. Co. v. State, 204 Okla. 225, 230 P.2d 260. If, on the other hand, an
arbitrary reduction of the rate base or an arbitrary increase of the apparent net earnings results
in a false conclusion as to the rate of return and if this is so substantial that a correction of the
figures in accord with the undisputed evidence shows that a fair and reasonable return is not
being made, it is our duty to correct this situation and to prevent what the courts unanimously
agree to be a confiscation of the company's property. We devote ourselves first to a
consideration of a determination of the net return.
The Net Return or Balance Net Revenue
The test period used was the first seven months of 1951, namely, from January 1, 1951 to
July 31, 1951. The commission found as follows: The Commission's Tabulation
The Commission's Tabulation
The Commission's Tabulation
From analysis of the plaintiff company's annual reports to this Commission and its
Exhibits 105 and 106, I & S 117, and Exhibit 5, I & S 112, the Commission finds:
(5) Total operating
revenue (1 to 4 Total Interstate Intrastate
Exh. 105) 3,427,140 2,158,317 1,276,500
(16) Total operating
exp. & taxes (13
to 15 105).... 2,874,424 1,730,044 1,144,380
(17) Balance net
revenue 7 mo. (5-16
Exh. 105)..... 552,716 420,596 132,120
Balance net revenue
(12 mo.) prorated 947,520 721,020 226,500
Avg. telep. plant in
service (Exh. 5
3/31/49 I & S 112)... 4,800,600
Addit. to plant to
Dec. 31, 1950
(Note 1)..... 433,827
Total Avg. plant in
service...... 5,234,427
Exh. 5
Depreciation
3/31/49 I & S 112.. 1,346,700
Depreciation
12/31/50..... 388,231
Total depreciation
7/31/51..... 1,734,931
Total net plant.......................................... 3,499,496
% Balance net
revenue to average
net telephone plant
annual basis....... 6.47%
Note 1Addition computed to December 31, 1950as annual report of company.
Additions for first 7 months 1951 have no appreciable effect on revenue.
Note 2Item (19) property held for future use not allowed.
Item (20) working cash capital not allowed. Advance payments from 27697 subscribers
(intrastate) give sufficient working cash capital, as indicated by the Company rules and
regulations which read:
Bills for flat rate exchange service for the period specified in the rate schedule may
be rendered at the beginning of the billing period and may be rendered monthly,
fortnightly, weekly, or at such other intervals as may be considered necessary and are
due and payable on presentation.' * * *
Item (21) materials and supplies are carried as current assetsnot fixed to any particular
plant, (see balance sheet annual reports) carried as accounts payable to affiliated companies
and not allowed for rate purposes.
We are interested, at this point, chiefly in items of the intrastate revenuethe first four
items in the right-hand column.
The district court used its own tabulation, but took precisely the same figure for operating
revenue, from which it deducted the identical figure for operating expense and taxes, and
arrived again at the commission's identical figure for balance net revenue. It amplified the
commission's findings of operating expense by itemizing seven individual expense accounts
as carried in the company's books and reflected from its exhibits, and arrived at the same
result as the commission, in deducting from the total intrastate revenues for the first seven
months for 1951 (on which figure the commission, the court and the utility all agree) the
amount of $1,144,380 as operating expense. It is this item that draws appellant's fire. The
commission did not explain it. The court derived it as follows: "7J12 of the seven accounts
of 1949 operating expense $934,910
7/12 of the seven accounts of 1949 operating expense..................................
$934,910
53% + Federal income tax 1951 to take care of fluctuations in operating
expenses....................................................................................................
155,085
23.41% of total other taxes..........................................................................
54,385

__________

$1,144,380
The company's proof of intrastate operating expense for the first seven
months of 1951, the period in question, by way of its books, its
accounts, its exhibits and the testimony of its witnesses showed the
figure of ......................................................................................................
$1,165,200
No one contested the accuracy or the propriety (except as to applying the Separations
Manual in segregating the intrastate from the interstate expense) of any of the items making
up such expense. It is an aggregate of the many accounts kept in compliance with
requirements or the uniform system of accounts.
We can find no justification for the use of any of the three items making up the
commission's figure and the court's figure of $1,144,380. To deduct seven months' 1949
operating expense from seven months' 1951 revenue results in a figure that can neither be
characterized nor labeled. The second item is neither understandable nor identifiable from the
record. The third item applies a ratio of 23.41% as the intrastate ratio that applied in 1949.
The actual intrastate ratios of intrastate plant were as follows: 23.77% on March 31, 1949;
24.96% for 1949; 29.31% for 1950; and 31.65% for the first seven months of 1951, an
increase of about one fifth over 1949.
The end result of reducing the intrastate expenses for the trial period of the first seven
months of 1951 from the actual expense of $1,165,200, as established by the testimony, the
books, records and exhibits, to the sum of $1,144,380, derived by computations from the
1949 reports, was to create a false picture of balance net revenue intrastate for the first seven
months of 1951 in the sum $132,120 against an actual net revenue of $111,300, or,
"annualizing" these figures by multiplying the same by 12J7, the commission finds an
annual net revenue of $226,500 against what actually appears from the evidence to be
only $190,S00, a difference in annual net revenue of $35,700.
sum $132,120 against an actual net revenue of $111,300, or, annualizing these figures by
multiplying the same by 12/7, the commission finds an annual net revenue of $226,500
against what actually appears from the evidence to be only $190,800, a difference in annual
net revenue of $35,700. On the total net intrastate plant as calculated by the commission,
$3,499,496, this makes a difference of 1.02% and reduces the apparent return of 6.47%, as
found by the commission, to 5.45% under the utility's computations.
But even after correcting the erroneous picture of net revenue resulting from deducting
1949 expenses (partially adjusted) from 1951 revenues, we are faced with the necessity for
making a further correction. The evidence discloses without contradiction that future net
revenues would and will be further greatly reduced by increased operating expense resulting
from two factors. The first of these was the so-called fifth round of wage increases. The
second was the increase of federal income taxes from 38% to 47% to 52%. Any order as to
rates must perforce operate for the future. It cannot act retroactively. A failure to take into
consideration the very material increase in operating expenses resulting from these two items
again presents a false picture with reference to the future earnings the company may expect.
Exhibits reflecting these increases are in the evidence. They are not disputed. To discuss them
in detail would serve no purpose. The consequent adjustment of the figure balance net
revenue for intrastate service reflecting these items shows a reduction of annual net revenue
of $190,800 to an annual net revenue of $152,200. On the basis of the total net intrastate plant
as found by the commission in the sum of $3,499,496, this makes a further difference of
1.10%, further reducing the apparent net return of 6.47% as found by the commission to
4.35% under the utility's computations.
These figures are not the result of speculation or surmise.
mise. When the case was being tried to the court on October 15, 1951 and the parties were
considering the test period of the first seven months of 1951, it definitely appeared that the
fifth round wage increase had started July 29, 1951. Only two days remained within the test
period. The company had contracts with six different unions. These contracts provided a
fixed wage schedule, with a starting rate and defined step-ups. Knowing the number of
employees of each class and on each step of the schedule, it was simply a matter of
arithmetic to permit the submission of an exhibit which showed an annual increase in
operating expense, though not within the test period, of $166,000 before federal income
taxes. A similar situation existed with respect to federal income taxes. A bill was pending
before the congress to increase this tax to 52% of net income, retroactive to April 1, 1951.
There was little doubt but that it would pass and it subsequently did pass. This situation could
not be ignored. Without an honest and intelligent forecast as to probable tax, price and wage
levels in the immediate future the fixing of rates would be a futility. McCardle v. Indianapolis
Water Co., 272 U.S. 400, 71 L.Ed. 316, 47 S.Ct. 144; Missouri ex rel. Southwestern Bell Tel.
Co. v. Public Service Commission, 262 U.S. 276, 43 S.Ct. 544, 67 L.Ed. 981, 31 A.L.R. 807.
The foregoing observations however have to do only with the matter of the computation of
balance net intrastate revenue. The rate of return is further affected by the commission's
methods and conclusions in arriving at the intrastate rate base.
The Rate Base
We refer again to the commission's tabulation and are at this point chiefly interested in the
column of figures beginning with the item of $4,800,600 as average plant in service March
31, 1949. This initial figure is derived from the utility's books and is accepted by all parties.
It would seem that by the simple process of adding to this figure the additions to plant and
subtracting depreciation to bring the average total net plant into the test period of the first
seven months of 1951, the proper result should be derived. The commission purported to
follow such method, but used figures which are not supported by the record. Several of the
items purporting to show addition to and depreciation of plant are challenged by the company
and we find such challenge to be well founded. For example, addition to plant to December
31, 1950 in the sum of $433,827 was apparently derived by applying to actual total interstate
and intrastate additions for this period as reflected by the Form M
6
reports of the company
(but excluding materials and supplies and working cash hereinafter discussed) the ratio of
intrastate to total plant (and this was likewise followed by the court) which existed during
1949. This again obviously presents an artificial figure. If the ratio remained constant it could
possibly have been accurately used, assuming that the figures to which it were applied were
accurate. But it was not a constant ratio. It varied from year to year, from month to month
and from week to week and was readjusted monthly.
____________________

6
The official document is entitled Annual Report Form M (Telephone Companies). This is a printed
document of some 300 pages or thereabouts containing hundreds, perhaps thousands, of items. It is a complete
report of the status of the utility, its property, its receipts and disbursements, its financial transactions, its relation
to other companies, etc. It is apparently a full disclosure of everything that the company is and everything that it
does. Its complete execution is required by the Federal Communications Commission and was formerly required
by the Interstate Commerce Commission. In addition to the filing of two copies of such Form M report with the
F.C.C., it is required that the information be taken from the accounts and records of the utility which in turn must
be kept in accordance with the uniform system of accounts. Section 6109, N.C.L.1929, not only requires the
filing of complete accounts with the Public Service Commission of Nevada but provides that where any such
public utility is required by the United States government to keep accounts in a specified manner, such system
shall be followed. Accordingly a copy of the Form M annual report is likewise filed annually with the Public
Service Commission of Nevada. Such Public Service Commission is further, under sec. 6109 id., authorized at
any time to call for additional information when deemed necessary, and is further authorized to examine the
books, accounts, records, minutes and papers of the utility.
varied from year to year, from month to month and from week to week and was readjusted
monthly. Under uncontradicted evidence reflected from the company's reports and exhibits
and the testimony of its witnesses, the ratio changed materially in 1949, 1950 and the first
seven months of 1951 by great additions to the intrastate plant. The company's exhibits,
starting, as did the commission, with $4,800,600 on March 31, 1949, show the following
increases:
To December 31, 1949 $411,500
January 1, 1950, to December 31, 1950 945,700
January 1, 1951, to July 31, 1951 841,100
7

__________

Total increase $2,198,300
This figure brought the rate base July 31, 1951 to $6,998,900.
It is to be noted that the last item above indicates the increase from January 1, 1951 to July
31, 1951 in the sum of $841,100. This item was entirely omitted by the commission and the
court, with the commission's notation: Additions for first seven months, 1951, have no
appreciable effect on revenue. The point under discussion was not the revenue but the rate
base. A possible construction to be placed on the note in question is that the $841,100
addition to intrastate plant in the first seven months of 1951 did not constitute property that
was devoted to the public service intrastate. Yet it appears that these additions to plant
corresponded with additions of similar nature in the past and various extensions of the plant.
The judgment of the company in installing them is not in any way questioned. Why they were
not considered as much a part of the plant devoted to public use as any other parts of the
property does not appear. The refusal to consider this uncontradicted evidence was arbitrary
and a denial of due process. Baltimore & Ohio R. Co. v. United States, 264 U. S. 25S, 44
S.Ct.
____________________

7
The figures represent average amounts for the specific periods. Average figure for a given period is roughly
equivalent to a figure representing the median date of that period.
U. S. 258, 44 S.Ct. 317, 68 L.Ed. 667. Or, if the commission's note meant that it was too early
to determine whether the 1951 additions to plant would have any effect on future revenues,
this still presents no logical or legal reason why the rate base was not increased by such
additions.
The record contains no explanation of how the figure of $388,231 for additional
depreciation from March 31, 1949 to December 31, 1950 was derived. The accrued
depreciation reserve to March 31, 1949 in the sum of $1,346,700 is taken from the company's
books and exhibits and is not disputed, but these exhibits show only an increase in
depreciation for the first seven months of 1951 in the sum of $254,800. It is significant too
that the addition to the depreciation reserve for both the interstate and intrastate plant during
the year 1950 was only $404,484, which fact in itself indicates the frailty of the commission's
figure.
8
But, irrespective of these observations, the main difficulty with the commission's
figures on depreciation as well as on additions to plant is that we can find nothing in the
record to support them. Neither does the commission's brief attempt to support any of these
figures.
The foregoing discussion reflects a difference as follows, if we use the exhibits, the books
and the testimony of appellant:
Plant in service, per appellant $6,998,900
Plant in service, per commission............................................................................ 5,234,427

__________

Difference $1,764,473
The Separations Manual
[Headnotes 2, 3]
Appellant's above figure of $6,998,900, as plant in service for its intrastate operation, is
derived through application of what is known as the Separations Manual.
____________________

8
See dissenting opinion of Justices Brandeis and Holmes in Missouri ex rel. Southwestern Bell Telephone
Co. v. Public Service Commission of Missouri, 262 U.S. 276, 43 S.Ct. 544, 552, 67 L.Ed. 981, 31 A.L.R. 807,
in which it was said: For it must be borne in mind
application of what is known as the Separations Manual. In other words, it reflects the current
proportion of intrastate usage in ascertaining the plant in service in the rate base. Respondent
commission rejects the use of this Manual. Since Smyth v. Ames, 169 U.S. 466, 18 S.Ct. 418,
42 L.Ed. 819, it has been universally recognized that, as the federal jurisdiction in rate matters
is restricted to interstate commerce, so the jurisdiction of the various states is restricted to
intrastate rates in their respective jurisdictions. Most of the telephone plant and equipment is
used in both interstate and intrastate communications. It is obvious that the wires and cables,
the pole lines, the central office equipment, the telephone instruments themselves are for the
most part used for the purpose of making calls which originate and end within the state as
well as calls originating in the state and crossing one or many state lines. Since the Minnesota
Rate Cases, Simpson v. Shepard, 230 U.S. 352, 33 S.Ct. 729, 57 L.Ed. 1511, the accepted law
has been that the properties serving such dual purpose must be separated, for rate making
purposes in the respective jurisdictions, in accordance with proportionate use. To this end the
National Association of Railroad and Utilities Commissioners (NARUC) and the Federal
Communications Commission (FCC), for a period commencing in 1941, have worked upon
the development of a fixed procedure to be followed for such separations not only of the
property but likewise of operating expense. In October, 1951, at Charleston, S.C., a revision
of the existing plan of separations was unanimously adopted by NARUC and the revision was
approved on November 20, 1951 by FCC. The Separations Manual, as thus revised has come
to be known as the Charleston Plan or the Charleston Revision. A very material part of the
briefs is occupied with a discussion of the propriety of using the Separations Manual as thus
finally adopted.
____________________
that depreciation is an annual charge. That accrued on plants constructed in the long years prior to 1914 is much
larger than that accruing on the properties installed in the shorter period since.
On the first day of the trial before the court on October 15, 1951 on the utility's suit to set
aside the commission's rejection of the company's new proposed rates, the learned district
judge expressed his concern with that phase of the case dealing with the Separations Manual.
After referring to the fact that the commission, as formerly constituted, had by its decision
recognized the Manual, the court noted that after a change in the commission it was
apparently not satisfied with the Separations Manual and that the court would be loath to
compel a following of the Manual if in fairness to interested parties it appeared that the
Manual needed revision. The utility immediately gave notice of its position in this regard,
namely, that the Separations Manual furnished to the commission and the court was the only
method of separation in evidence. The court commented, That's the present record, and
counsel again stated their position that the evidence in the case should be followed.
Thus the commission was charged with notice on the first day of the trial that the utility
and the court recognized and insisted upon the proposition that at that point no evidence as to
method of separations was in the record except that afforded by the Manual. Such Manual is a
printed volume of eighty-seven pages, is based upon the general principle of separations
made upon the actual use basis, is divided into major categories of plant, with many
subdivisions, and develops a full and complete procedure. Despite the general approval and
acceptance of the Separations Manual (including its acceptance by the former personnel of
the Public Service Commission of Nevada), we may concede for the sake of argument that
the present membership of that commission might find some of its procedures so faulty or
unjustified as to move them to reject the same in the face of procedures they might consider
more fair or accurate. This however was not done. Respondent does not point to a single item
in which the procedures of the Manual are inaccurate, faulty, unfair or unjust, but states
flatly that it rejects the same.
inaccurate, faulty, unfair or unjust, but states flatly that it rejects the same. It has however
applied no formula and has made no suggestion as to what method of separation should be
used. The court, in adopting the commission's figures, arrived at them (after some
mathematical corrections) by applying to the total plant the ratio of intrastate plant existing in
1949, and applied that figure to the test period of the first seven months of 1951. As the
proportion varies not only from year to year but from month to month, it is obvious that a
false figure resulted. The proportion of intrastate property and intrastate use increased every
year from 1949 to 1951, and in 1951 it was 19.4% higher than in 1949. The figures submitted
by the appellant on the other hand were actual figures for the period involved. We have set
them out above and indicated the difference between the two figures. Before noting the
difference in rate of return resulting from the commission's failure to use the only evidence in
the record in allocating to the intrastate rate base the proper proportion of the entire interstate
and intrastate plant, some further observations will be in order.
The conclusions expressed by us above as to the necessity for following the Separations
Manual in the apportionment of the intrastate operating expense and in the apportionment of
property devoted to intrastate use were the inevitable result of many factors appearing in the
record. Before the Charleston Commission changes, the Manual originally went into the
evidence without objection. The continued use of the Manual over a long period of years was
shown. In the earlier hearing the Nevada commission accepted and adopted it, and
particularly noted its general acceptance by the state commissions. All of this, as well as the
subsequent revision of the Manual, went into the evidence before the courtfor the most part
without objection. The commission accepted the figure of $4,800,600 as average net plant in
service March 31, 1949, and the figure of $1,346,700 accrued depreciation to that date,
both of which were the result of applying the Separations Manual.
accrued depreciation to that date, both of which were the result of applying the Separations
Manual. Even the 1949 figures erroneously used for the 1951 test period had been obtained
by using the Separations Manual. Despite all this, the commission could possibly have
justified its rejection of the Manual by submitting other and better procedures. Re
Northwestern Bell Telephone Co. (S.D. P.U.C. 1949), 81 P.U.R. (N.S.) 375, on which
reliance is placed by respondent, is deprived of any weight by the further history of that case.
In re Northwestern Bell Telephone Co. (S.D.1950), 43 N.W.2d 553; Re Northwestern Bell
Telephone Co. (S.D. P.U.C. 1952), 92 P.U.R. (N.S.) 65. A quotation from last-named citation
illustrates the problem and the difficulty of its solution:
Counsel for protestants has argued at great length that the separations procedure
prescribed by the Separations Manual of 1947 is without binding force upon the Commission,
and should be wholly disregarded, on the alleged ground that the separations methods therein
set out are grossly unfair to the states. It is doubtless true that the procedures therein
prescribed are not as such binding upon this Commission. They are, however, in quite general
use by telephone companies throughout the nation and have been accepted by most
Commissions and courts as reasonably satisfactory. Until better methods are developed,
adherence to them will probably result in a more satisfactory division of properties, revenues,
9
and expenses as between interstate and intrastate than could be devised by any one
Commission. Radical departures therefrom have been frequently condemned by the courts on
appeal in this and other states. Protestants did not submit any plan for a more equitable
distribution nor offer any exhibit to show how they thought the separations of properties,
revenues, and expenses connected with South Dakota telephone operation could be made so
as to lighten the load that now is and in the future will have to be carried by subscribers to
telephone service in this state.
____________________

9
Separation of revenues is not involved in this case. Interstate revenues are wholly entered as such and so are
intrastate revenues.
and in the future will have to be carried by subscribers to telephone service in this state. This
and other Commissions have given much consideration to the manual and have for a long
time advocated change similar to those adopted by the NARUC convention last October.
Appellant refers us to cases decided by public service commissions in twenty-six different
states in 1951 and 1952 (all subsequent to the revision of the Separations Manual as made at
the Charleston meeting) in which the procedure of the revised Manual was approved and
followed. Respondent has not commented on these cases. We have not examined them, and
accept appellant's statement that in all of them the Manual was accepted as the guide for
separating interstate and intrastate property and operation.
Respondent relies strongly upon Re Chesapeake & Potomac Telephone Co. of W. Va. (W.
Va. P.U.C. 1952) Case No. 3718, decided May 16, 1952. There the West Virginia
commission adopted a separations formula submitted by its own expert rather than the
Manual, so the case is not in point.
10
However, in many other respects it parallels this case.
The West Virginia commission was greatly distressed over the fact that intrastate rates
between points in Indiana were greater than interstate rates through the same points and
extending many more miles into the state of Ohio. It attributed this situation directly to the
separations methods adopted by the Manual, and referred to the Charleston amendments as
being designed to reduce the disparity between interstate and intrastate toll rates but as
having failed to do so. It said: Any system of separations * * * which results in a toll of 75
cents for a message from Charleston to Huntington, but a toll of only 55 cents for a
message over the same facilities from Charleston through Huntington and then on over
into Chesapeake, Ohio, is so obviously erroneous as to warrant its condemnation."
____________________

10
This was known as the Honaker method after the name of its sponsor. This method disregarded the theory
of actual relative use in applying separations to the station equipment, but applied to that part of the property the
intrastate ratio found for the rest of the plant. It does not appear that the commission's opinion (one
commissioner dissenting) has as yet been reviewed by the courts. But this same Honaker method was adopted by
the Indiana commission, and such action was reversed as not being based on use. Indiana Bell Tel. Co. v. Public
Service Commission of Indiana (Cir. Ct. of Marion County, 1952) CCH Utilities Law Rep. (State).
results in a toll of 75 cents for a message from Charleston to Huntington, but a toll of only 55
cents for a message over the same facilities from Charleston through Huntington and then on
over into Chesapeake, Ohio, is so obviously erroneous as to warrant its condemnation. Many
similar disparities appear in the Nevada rates. Rates from Winnemucca, Nevada, to Reno,
Nevada, for example, are higher than rates for service over the same facilities from
Winnemucca, through Reno, to Sacramento, California. Appellant shrugs this off, saying in
effect: That has nothing to do with the case. The intrastate plant must pay its own way no
matter how great the disparity. Reading between the lines, the West Virginia commission
said: We refuse to be slaves to a rule of law that works a manifest injustice. It sought a
relief from the situation by adopting the Honaker method, which, as noted, has to date failed
to receive judicial recognition. The Nevada commission senses the same injustice, and the
attorney general's oral argument was largely based upon that point. The claim is not devoid of
appeal or of merit. Appellant, in its oral argument, insists that this is a problem that arises
only after a determination has been made as to the total net revenues necessary to provide a
fair rate of return upon the intrastate property. It is not until such determination has been
made, says appellant, that the second problem arises of determining the spread of rates. We
are not sure that this is so. We are not sure that the application of a separations formula is
entirely independent of the establishment of a spread of rates, particularly in view of the
unchallenged statement that the Charleston amendments were designed to reduce the disparity
between interstate and intrastate toll ratesan expression that finds repetition in other cases.
The present record gives us no opportunity to afford any relief from this situation, but we
desire to make it abundantly clear that we do not foreclose further inquiry into such situation
if the matter is again brought before this court.
inquiry into such situation if the matter is again brought before this court.
We return to our computations.
If the intrastate base of $3,499,496, as found by the commission, be corrected to include
this figure $1,764,473 (which necessarily results from the fact that it is the only figure finding
support in the record and that there is no evidence contra) and is then applied to the net
revenue of $152,200, this makes a further deduction of 1.46% from the apparent net return of
6.47% found by the commission, reducing the net return to 2.89%,
11
according to the
computations of the utility.
Further reductions of the rate base are made by the commission in its treatment of (1)
property held for future telephone use, (2) materials and supplies, (3) working cash and (4)
apportionment of depreciation reserve to the intrastate plant. The aggregate of the percent
return resulting from the commission's treatment of these items is less than .20%, and as the
action of this court is inevitably pointed out as the result of the very material items above
discussed, a detailed discussion of the four items last mentioned is not warranted.
Corporate Structure and Relationship
Respondent senses something sinister in the relationship of appellant to other corporations.
All of the corporate stock of Bell Telephone Company of Nevada is owned by Pacific Tel. &
Tel. Co., which is in turn almost completely owned by American Tel. & Tel. Co., which
company also owns the corporate stock of Western Electric Company and, with it, operates
the Bell Laboratories. These laboratories engage in telephone research and furnishing of
technical advice to Bell Telephone Company of Nevada, as well as to other operating
subsidiaries for which Bell Telephone Company of Nevada pays 1% of its gross revenues.
____________________

11
For the last preceding ten-year period, the earnings of the other three major telephone companies in
Nevada, namely, Churchill Co. Tel. & Tel. Co., Elko County Tel. Co. and Southern Nevada Tel. Co. have
averaged approximately 10%. During the same period appellant averaged 6.13%.
Company of Nevada, as well as to other operating subsidiaries for which Bell Telephone
Company of Nevada pays 1% of its gross revenues. Western Electric Company sells directly
to Bell Telephone Company all of the latter's telephone materials and equipment and also acts
as purchasing agent for Bell Telephone Company of Nevada of articles which Western
Electric does not itself manufacture. We refrain from discussing these relationships in greater
detail, as they are not specifically attacked by the commission or the court nor made the basis
of the order or judgment on this appeal.
12

Conclusion
[Headnote 4]
The necessary correction of the commission's erroneous computation of the rate base and
of its erroneous computation of net revenue results in reducing the apparent net return of
6.47% as found by the commission to less than half of such return. This we hold to be unjust,
unreasonable and confiscatory. From the record it appears that the new rates as filed will
themselves provide no greater rate of return than the 6.47% which the commission found was
the rate of return that the utility was entitled to earn. It was therefore error for the district
court to deny the utility's complaint which sought to set aside the commission's order
suspending the increased rates as filed.
The judgment is hereby reversed and the case remanded with directions to enter a
judgment vacating and setting aside the order of the Public Service Commission of Nevada of
January 4, 1951, and its subsequent order of June 24, 1951.
The record indicates that appellant deposited $300 in cash in lieu of cost bond on appeal.
____________________

12
The only point made in this regard, in respondent's brief and oral argument, is that since virtually all of the
stock of appellant is owned by its parent company, which furnishes necessary cash requirements to the operating
company, the element of a net return high enough to be attractive to investors is not applicable. As originally
noted in this opinion, however, the determination of the rate of return, other than acceptance of the commission's
figure of 6.47%, has been eliminated from the case.
cash in lieu of cost bond on appeal. Such bond is exonerated and the clerk is directed to return
the cash deposit to appellant.
Eather, C. J., and Merrill, J., concur.
____________
70 Nev. 51, 51 (1953) Mendive v. District Court
MADELEINE MAESTRETTI MENDIVE, Relator, v. THIRD JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, in and for the County of Lander, HON. D. W.
PRIEST, Judge Thereof, and DON P. MAESTRETTI and HELEN MAESTRETTI,
Respondents.
No. 3728
February, 26, 1953. 253 P.2d 884.
Petition for a writ of prohibition to prohibit respondents district court and judge from
continuing with proceedings by other respondents for adoption of relator's minor nephew.
The Supreme Court, Badt, J., held that respondents court and judge could not proceed further
pursuant to a citation directing relator, as the minor's custodian, to show cause why the minor
should not be placed in adoption petitioners' custody, as another district court, which
appointed relator as the minor's guardian, could determine the minor's best interests in an
appropriate proceeding and approve or disapprove relator's refusal as guardian to consent to
the adoption.
Granted in part. Denied in part.
Howard E. Browne, of Reno, for Relator.
George F. Wright and Ross P. Eardley, of Elko, for Respondents Don P. Maestretti and
Helen Maestretti.
1. Courts.
When a court of competent jurisdiction acquires jurisdiction of subject matter of case, its authority
therein continues, subject only to appellate authority, until matter involved is finally and completely
disposed of, and its action cannot be interfered with by any other court of coordinate authority.
2. Adoption.
Residence of minor in county wherein petition for his adoption is filed is not a jurisdictional requirement,
and recital in petition of statutory jurisdictional requirements is sufficient. N.C.L.1943-1949 Supp., secs.
1065 to 1065.02.
3. Adoption.
The statute requiring that consent of minor's parent or guardian or of juvenile court to minor's adoption
and continued custody of minor by adoptive parents for six months be proved before court may lawfully
enter order permitting adoption does not require that such conditions be alleged in adoption petition or
exist at time of filing thereof to invoke court's jurisdiction of adoption proceedings, if petition otherwise
contains statutory requisites. N.C.L.1943-1949 Supp. secs. 1065 to 1065.02.
4. Courts.
A district court's general jurisdiction over subject matter of adoption proceeding was not destroyed by
another district court's appointment of guardian of minor sought to be adopted, lack of such guardian's
consent to adoption, or absence of required six months' custody of minor in adoption petitioners' home
before filing of petition, though adoption court was not presently in position to make lawful order
permitting adoption. N.C.L.1929, sec. 9495; N.C.L.1943-1949 Supp., secs. 1065 to 1065.02.
5. Adoption.
The bare fact that a minor has a legal guardian does not prevent minor's adoption by another.
N.C.L.1943-1949 Supp., sec. 1065.02.
6. Adoption.
An adoption petition was sufficient to invoke district court's jurisdiction, though it did not allege that
minor sought to be adopted resided in county of venue, that he resided in petitioners' home for six months
before filing of petition, or that his guardian, appointed by another district court, consented to adoption.
N.C.L.1929, sec. 9495; N.C.L. 1943-1949 Supp., secs. 1065 to 1065.02.
7. Courts.
The district court of county wherein an infant resided had jurisdiction to entertain his custodian's petition
for appointment as infant's guardian and could lawfully make such appointment, as convenient and
necessary for protection of infant's person and property, despite pendency of proceeding in district court of
another county for infant's adoption by others. N.C.L.1929, sec. 9495; N.C.L.1943-1949 Supp., sec. 1065.
8. Adoption; Courts.
A district court in which petition for adoption of infant was filed could not, through issuance of citation,
compel infant's guardian, appointed by district court of, and residing with infant in, another county
than that of venue, to bring infant before court and deliver custody thereof to
petitioners, as proceedings growing out of citation would involve enforcement
through contempt proceedings, not authorized by adoption statute, and direct
interference with order appointing guardian.
infant in, another county than that of venue, to bring infant before court and deliver custody thereof to
petitioners, as proceedings growing out of citation would involve enforcement through contempt
proceedings, not authorized by adoption statute, and direct interference with order appointing guardian.
N.C.L.1929, secs. 9495, 9500; N.C.L.1943-1949 Supp., sec. 1065.
9. Infants.
The welfare of minor child is paramount consideration in proceedings of any nature involving child's
custody.
10. Guardian and Ward.
One appointed by district court as guardian of her minor nephew's person, was merely an arm of court
and could not, arbitrarily and contrary to minor's best interests, refuse to consent to minor's adoption by his
maternal grandfather. N.C.L.1929, sec. 9495; N.C.L.1943-1949 Supp., sec. 1065.02.
11. Guardian and Ward.
The right of guardian of minor child's person to child's custody, being solely for child's benefit, may be
regulated, controlled or denied by court appointing guardian, if necessary in promotion of child's best
interests.
12. Courts.
Whether refusal of guardian of her minor nephew's person to consent to minor's adoption by his maternal
grandfather was proper and justified as in minor's best interests should be determined in appropriate
proceeding before district court which appointed guardian before another district court may proceed further
in adoption proceedings brought therein, as court appointing guardian can make appropriate orders to make
adoption possible, if it orders guardian to consent thereto, and its approval of such refusal would render
other court's further jurisdiction over adoption proceedings futile and unavailing. N.C.L.1929, sec. 9495;
N.C.L.1943-1949 Supp., sec. 1065.02.
OPINION
This is a proceeding in prohibition in which the relator seeks to prohibit the respondent
court and judge from continuing with adoption proceedings initiated by the individual
respondents. The relator's challenge of the jurisdiction of the Third judicial district court of
Lander county to entertain the adoption petition is met by that court's challenge of the
jurisdiction of the Second judicial district court of Washoe county to entertain the relator's
guardianship petition there.
Second judicial district court of Washoe county to entertain the relator's guardianship petition
there. In determining these counter charges of lack of jurisdiction in the respective courts, a
consideration of the facts and proceedings to date becomes necessary.
The minor child involved, David Vinn Adams, was orphaned at the age of less than five
months while apparently domiciled in the state of California, and shortly thereafter was
delivered into the custody of Madeleine Maestretti Mendive, the infant's maternal aunt, in the
state of Nevada. Mrs. Mendive made an abortive attempt in Elko county, Nevada, to secure
letters of guardianship there. This proceeding was dismissed, and she and her husband moved
to Washoe county. The infant is still in her custody.
On September 13, 1952, while the infant was living with Mr. and Mrs. Mendive in
Washoe county, the infant's maternal grandfather, Don P. Maestretti, and his wife, Helen
Maestretti, filed a petition in the Third judicial district court, Lander county, for the adoption
of the minor. On September 20, 1952 the judge of that court issued a citation directing Mrs.
Mendive, as custodian of the minor, to show cause why said minor should not be placed in
the custody of Don P. Maestretti and Helen Maestretti, and why you should not be divested of
the possession and custody of said David Vinn Adams. Such citation was served upon Mr.
and Mrs. Mendive in Washoe county, September 22, 1952.
On September 30, 1952 Mrs. Mendive filed a petition in the Second judicial district court,
Washoe county, praying for her appointment as guardian, and, upon the statutory 10-day
posted notice,
1
was by that court appointed as guardian on October 11, 1952.
____________________

1
Section 9495, N.C.L. 1929. When necessary or convenient, guardians of the person and estate or either, of
minors, who are inhabitants of, or reside in the county wherein application may be made * * * may be appointed
as herein provided. Section 9496 id. Any relative or interested person may file the necessary petition
whereupon the clerk shall give notice of the hearing thereof by posting in three public places in the county * *
*. The party petitioning shall also cause notice to be served upon any person in whose custody or care such
minor or minors may be * * *.
appointed as guardian on October 11, 1952. At the time of her filing of her petition for
appointment as guardian she had complete notice and knowledge of the pendency of the
adoption petition and of the citation directing her to appear as above recited. Maestretti on the
other hand, the petitioner for adoption in Lander county, had no notice or knowledge of the
filing of the guardianship petition, the pendency of the guardianship proceeding or the order
appointing guardian.
The citation issued by the adoption court was returnable October 17, 1952, at which time
the attorney for the guardian appeared and challenged the jurisdiction of the adoption court
and objected to the proceeding upon the grounds (1) that the adoption petition did not allege
that the minor resided in Lander county, (2) that it did not allege that the minor had resided in
the home of petitioners for six months prior to the filing of the petition, and (3) that a
guardian had been appointed for the minor and there is no consent of said legal guardian to
proposed adoption.
2
A certified copy of the letters of guardianship was admitted in
evidence. The petitioners for adoption, through their counsel, contended that the citation was
for the purpose of placing the child in the home of petitioners to meet the requirement of said
child being in the home of petitioners for the six months period required for adoption
purposes. The adoption court overruled the objections of the guardian, denied her petition to
dismiss the adoption proceedings and set the date of November 19, 1952 as the time set for
the purpose of taking evidence herein. No estate of the minor is involved.
____________________

2
Section 1065, N.C.L. 1943-1949 Supp. Any adult person may petition the district court in the county in
this state wherein he has resided during the preceding six months for leave to adopt a minor child * * *. Section
1065.02 id. With certain exceptions no adoption shall be permitted except with the consent of the parents or,
failing a living parent, with the consent of the legal guardian or, failing such guardian, by the juvenile court.
Section 1065.01. No petition for adoption shall be approved until the child shall have lived for a period of six
months in the proposed home.
Mrs. Mendive, the relator, then sought a writ of prohibition from this court. Attached to
her petition are copies of the pleadings and proceedings above set forth. The grounds of the
petition are the same as those raised in the objections to the jurisdiction of the Lander county
court as above recited. The personal respondents, Don P. Maestretti and his wife, filed an
answer herein alleging their lack of knowledge of the guardianship proceedings and alleging
the knowledge of the guardian of the prior pending adoption proceedings and the active
concealment by the guardian from the adopting petitioner of the pendency of the guardianship
proceedings. Attached to such answer is an affidavit of Don P. Maestretti, the petitioner for
adoption, to the effect that the guardian's attorney, at Battle Mountain, Lander county,
Nevada, on September 29, had a conversation with affiant but did not mention the pending
guardianship proceeding set for hearing for October 11. Attached also is an affidavit of John
F. Sexton, the attorney for the petitioner for adoption, to the effect that on the same day he
likewise had a conversation with the guardian's attorney at Battle Mountain but that the latter
did not mention or refer to the pending guardianship proceedings. The guardian's reply to
such answer, drawn by the guardian's attorney and signed and verified by the guardian before
her said attorney as a notary public, curiously enough denies these allegations for lack of
information.
[Headnote 1]
Both parties rely upon the familiar rule that when a court of competent jurisdiction
acquires jurisdiction of the subject matter of a case, its authority continues subject only to the
appellate authority until the matter is finally and completely disposed of, and that no court of
coordinate authority is at liberty to interfere with its action. Metcalfe v. District Court, 51
Nev. 253, 274 P. 5. Respondents contend that under this rule, the petition for adoption having
first been filed in the Third judicial district court, in and for Lander county, that court
assumed jurisdiction to the exclusion of the jurisdiction of the Washoe county court for
guardianship or other proceedings affecting the custody of the minor.
district court, in and for Lander county, that court assumed jurisdiction to the exclusion of the
jurisdiction of the Washoe county court for guardianship or other proceedings affecting the
custody of the minor.
1. We have first to dispose of the guardian's contention that the adoption petition filed in
Lander county was so defective as not to invoke the jurisdiction of that court.
[Headnotes 2, 3]
The guardian contends that under our statutes and by reason of the failure of the Lander
county adoption petition to allege the residence of the minor in Lander county or to allege the
petitioner's custody of the minor for six months or to allege the guardian's consent to the
petition for adoption, the Lander county court acquired no jurisdiction over the matter. Our
statute does not require that the minor be a resident of the county where the adoption petition
is filed, and in this state such residence is not a jurisdictional requirement. Sec. 1065,
N.C.L.1943-1949 Supp.; In re Wilson's Estate (Wilson v. Wilson), 95 Colo. 159, 33 P.2d
969. Recital of the statutory jurisdictional requirements is all that is necessary. In re Byran, 48
Nev. 352, 232 P. 776, 37 A.L.R. 527; Wilson v. Otis, 71 N.H. 483, 53 A. 439, 93 Am.St.
Rep. 564. We may concede that under our statute, the consent of the parent or guardian (or, in
a proper case, of the Juvenile court) and the continued custody of the minor by the adoptive
parents for a period of six months, must be proved before the court may lawfully enter its
order permitting the adoption. However, these two conditions are not required to be alleged in
the petition, neither are they required to exist at the time of the filing of the petition, which,
otherwise containing the statutory requisites, successfully invokes the jurisdiction of the
court. The textwriter in 1 Am.Jur. 639, Adoption, sec. 36, n. 1, happily refers to such
situation as the court's acquiring provisional jurisdiction to decide in due time whether
these requisites have been met.
met. Wilson v. Otis, 71 N.H. 483, 53 A. 439, 441, 93 Am.St.Rep. 564, cited in support of this
conclusion, does not use the quoted term, but holds: It is for the court, after having acquired
jurisdiction by the filing of an appropriate petition, to decide in the first instance whether the
parent has consented to a decree of adoption; * * * [This], with other preliminary questions
that might be suggested, must be determined upon evidence, and a hearing by the judge, after
he has acquired jurisdiction of the general subject-matter of the petition.
[Headnotes 4, 5]
Accordingly we are of the opinion that while the Lander county adoption court may not be
presently in position to make a lawful order permitting the adoption, its general jurisdiction
over the subject matter still exists and is not destroyed at the present time either by the
appointment of the guardian, the present lack of the guardian's consent or the present absence
of the required six months' custody of the minor in the home of the petitioning adoptive
parent. It would be contrary to the public policy emphasized by virtually all of the legislatures
and all of the courts to say that a minor was forever prevented from enjoying the benefits of
an adopted child by reason of the bare fact that it had a legal guardian. This is well expressed
by the Supreme Court of California, In re Santos' Estates (Santos v. Santos), 185 Cal. 127,
195 P. 1055, 1057, in which the court said:
Wherever possible, such a construction should be given adoption laws as will sustain,
rather than defeat, the object they have in view. Estate of McKeag, 141 Cal. 403, 74 Pac.
1039, 99 Am.St.Rep. 80. The main purpose of adoption statutes is the promotion of the
welfare of children, bereft of the benefits of the home and care of their real parents, by the
legal recognition and regulation of the consummation of the closest conceivable counterpart
of the relationship of parent and child.
able counterpart of the relationship of parent and child. While a guardian of the person of a
minor is charged with a high duty and serious responsibility in the care of his ward,
nevertheless the status of guardian and ward falls short of the close approximation to the
relationship of parent and child which is attainable through actual adoption, culminating, as it
does, in the child becoming a member, to all intents and purposes, of the family of the foster
parents. The statutes in question should not, therefore, be construed so as to exclude an
orphan in the custody of a guardian from the realization of the peculiar advantages to be
derived from an adoption, unless such construction be unavoidable.
[Headnote 6]
We are satisfied therefore that the prayer of the petition for prohibition that the respondent
district court and judge be commanded to desist and refrain from any further proceeding in
the adoption proceeding cannot be granted.
[Headnote 7]
2. Our second concern is whether, with a validly subsisting adoption proceeding in Lander
county, the Washoe county court had jurisdiction to entertain the petition for the appointment
of guardian. Under the provisions of sec. 9495, N.C.L.1929, a guardian may be appointed of
the person of a minor who is an inhabitant of or resides in the county wherein the application
may be made [w]hen necessary or convenient. The present case is illustrative of one of a
number of situations where both convenience and necessity would call for the appointment of
a guardian within the county of which an infant of tender years is an inhabitant despite the
pendency of adoption proceedings in another county in the state.
Even in the case of existence of a divorce decree containing custodial provisions, the
courts of California consistently, over a period of some 30 years, held in favor of the right of
the appointment of a guardian in a different jurisdiction in the state.3 Although these
cases were eventually disapproved in Greene v. Superior Court, 37 Cal.2d 307, 231 P.2d
S21, Justices Spence and Shenk vigorously dissented.
favor of the right of the appointment of a guardian in a different jurisdiction in the state.
3
Although these cases were eventually disapproved in Greene v. Superior Court, 37 Cal.2d
307, 231 P.2d 821, Justices Spence and Shenk vigorously dissented. However that may be, it
is clear that the subsistence of a custodial order in a divorce decree, subject as it is to present
enforcement or to modification in a proper case by the court that entered the decree, is a far
different thing from the mere subsistency of an adoption proceeding by a court whose
provisional jurisdiction, under our statute, may never ripen into full jurisdiction to make an
order of adoption. The statute grants no right to the adoption court to make any interim
custodial orders. It is obvious that in such situation a guardianship court having jurisdiction of
the minor could lawfully under our statute find that an appointment of a guardian was not
only convenient but was absolutely necessary for the protection of the minor's person and
property. The adoption statute itself recognizes this in requiring, under certain conditions, the
consent of the guardian.
Accordingly our second conclusion is that the Washoe county court had jurisdiction to
entertain the guardianship petition and that, under the record before us, Mrs. Mendive was
lawfully appointed guardian by that court. In re Byran, 48 Nev. 352, 232 P. 776, 37 A.L.R.
527.
[Headnote 8]
3. That conclusion however does not solve the problem. The Lander county court and the
judge thereof have already commanded Mrs. Mendive to produce the minor in the Lander
county court. It has already overruled objections to that order. It has already denied a motion
to vacate that order in whole or in part. Unless restrained, it will proceed to hear and
determine the question as to whether or not it will enter a final order upon the Maestretti
petition that Mrs.
____________________

3
Collins v. Superior Court, 52 Cal.App. 579, 199 P. 352; In re Guardianship of Kerr, 29 Cal.App.2d 439, 85
P.2d 145; Smith v. Smith, 31 Cal.App.2d 272, 87 P.2d 863; In re Guardianship of Burket, 58 Cal.App.2d 726,
137 P.2d 475; and In re Guardianship of Phillips, 60 Cal.App.2d 832, 141 P.2d 773.
upon the Maestretti petition that Mrs. Mendive deliver the custody of the minor to Mr.
Maestretti to the end that he may have the minor's custody for six months so as to justify an
order of adoption, other necessary conditions existing.
We are referred to no authority holding that an adoption court, under statutes such as ours,
may, through the process of the issuance of a citation, compel a guardian or other custodian
of an infant, residing with the infant in a different county, to bring such infant before the court
and deliver its custody to the petitioning adoptive parent. It is a proceeding corresponding in
all respects with the remedy of habeas corpus. In In re Adoption of D.... (Utah), 252 P.2d 223,
230, the court said: We do not lose sight of the fact that there is a distinction between cases
under habeas corpus where the issue is merely as to the right of present custody and cases
such as the instant one, where adoption is sought. We are confronted by the fact that
proceedings growing out of the citation would involve enforcement through proceedings in
contempt. Neither directly nor by implication may our adoption statute be construed to permit
this phase of the proceeding to go on. The proper assumption by the guardianship court of
Washoe county of the physical control of the ward (sec. 9500, N.C.L.1929) precluded
interference of this kind. If the citation were to culminate in an order for the delivery of the
child's custody to the adoptive petitioner, this would be a direct interference with the order of
the guardianship court. This could not be done. Marr v. Superior Court, District Court of
Appeal, Cal., 250 P.2d 739. It could not even have been accomplished by habeas corpus
issuing out of the Lander county court. Sec. 8382, N.C.L.1929, Browne v. Superior Court,
Cal.App., 95 P.2d 178.
[Headnote 9]
It is unthinkable however that such situation would leave the parties in an impasse that
would forever prevent the adoption of this child not yet two years old.
That the welfare of the child is the paramount consideration of the court in proceedings of any
nature involving its custody was emphasized by this court in Ex Parte Schultz, 64 Nev. 264,
181 P.2d 585, 587. Adopting with approval expressions used by many other courts, we said
that the fundamental consideration is the welfare of the infant; that the weight of modern
authority places the interest of the child as the first consideration; that in all controversies
arising respecting the custody of the child * * * the paramount considerationthe question of
controlling importanceis the interest, welfare and happiness of the child. Many of the
authorities are there collected in which this conclusion was uniformly reached, although the
custodial issue arose under a variety of procedures and proceedings. We reaffirm the
conclusion reached in the Schultz case, recently cited with approval in In re Adoption of
D.......(Utah), 252 P.2d 223. This being so, we are confronted with the fact that in the
proceedings had to date neither the Second judicial district court of Washoe county nor the
Third judicial district court of Lander county has had the opportunity to determine by an
examination of the facts or the presence of the parties whether the best interests of the child
would be promoted by his adoption by his maternal grandfather and the latter's wife, or by his
guardianship (possibly culminating in adoption) by his maternal aunt and the latter's husband.
The appointment of guardian by the Washoe county court was the result of an ex parte
hearing on the statutory 10 days' posted notice.
4
In like manner any attempt by the Lander
county court to arrive at a proper conclusion was frustrated by the jurisdictional limitations of
that court.
[Headnotes 10-12]
But the present guardian is but an arm of the district court of Washoe county.
____________________

4
The situation suggests the consideration by the legislature of an amendment to our statute so as to require,
like section 1441 of the California Probate Code and the statutes of other states, that notice be given to such
relatives of the minor residing in the state as the court or judge deems proper.
court of Washoe county. Matter of Ross, 6 Cal.App. 597, 92 P. 671. She could not arbitrarily
and contrary to the best interests of the minor refuse her consent to the minor's adoption by
the maternal grandfather. Her right to custody, being solely for the child's benefit, may be
regulated, controlled or denied by the court if necessary in the promotion of the child's best
interests. 25 Am.Jur. 42, Guardian and Ward, sec. 63, n. 9. In an appropriate proceeding
before the Washoe county district court, upon due notice and with all of the interested parties
before it, that court would be able to determine the best interests of the minor. It would be
able to approve or disapprove the guardian's refusal to consent to the adoption. If that court
should order the guardian, after full hearing, to consent to the adoption by the maternal
grandfather, appropriate orders could be made to make such adoption possible. If, on the
contrary, that court should approve the guardian's refusal to consent to the infant's adoption
by its grandfather, it would definitely appear that the further jurisdiction of the Lander county
district court over the grandfather's adoption proceeding would be futile and unavailing; that
its present provisional jurisdiction could never ripen into a jurisdiction to make a final order
permitting the adoption, dependent as such order would be upon the consent of the guardian
and the adopting parents' continuous custody of the minor for six months. Under such
situation the Lander county district court, upon being confronted with the final order of the
Washoe county district court finding that in consideration of the best interests of the minor,
the guardian's refusal to consent to the grandfather's adoption of the minor was proper and
justified (if such should be the finding), would undoubtedly respect such order and judgment
and dismiss the adoption proceedings pending before it. The Washoe county district court
would then be free to entertain adoption proceedings by the maternal aunt, the present
guardian.
The petition that respondents be restrained from any further proceeding in action No. 1038
is denied. Respondents are, however, prohibited from proceeding with the hearing growing
out of the citation directing relator to show cause why said David Vinn Adams should not be
placed in the custody of Don P. Maestretti and Helen Maestretti and why relator should not be
divested of the possession and custody of said David Vinn Adams. No costs are awarded.
____________
70 Nev. 64, 64 (1953) Bigness v. District Court
GLENN N. BIGNESS, Petitioner, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Washoe, Department 1 Thereof,
Respondent.
No. 3740
March 12, 1953. 254 P.2d 447.
Petition for writ of certiorari, by petitioner who had been convicted of first-degree
burglary, on ground that petitioner's rights to counsel were not fully or properly explained to
him. The Supreme Court, per curiam, held that petitioner, who took no steps to raise question
for nearly 15 years, and until after his sentence had been fully served, failed to act within a
reasonable period of time.
Writ denied.
Morgan Anglim, of Reno, for Petitioner.
Criminal Law.
Petitioner for writ of certiorari to review burglary conviction on ground that his rights to counsel were
not fully or properly explained to him, who took no steps to raise the question for nearly 15 years and
until after his sentence had been fully served, failed to act within a reasonable period of time, and petition
would be denied.
70 Nev. 64, 65 (1953) Bigness v. District Court
OPINION
Per Curiam:
This is on petition for writ of certiorari.
On May 22, 1937, petitioner was by respondent court adjudged guilty of the crime of
burglary in the first degree and sentenced to serve a term of from 1 to 15 years in the Nevada
state prison. Judgment was rendered upon a plea of guilty and waiver of preliminary
examination and time for passing of sentence. On the same day he was delivered into the
custody of the warden of the state prison where he remained until released upon parole May
4, 1938.
Petitioner does not now assert his innocence but contends that respondent court was
without jurisdiction to enter judgment. This contention is based upon the fact that petitioner
was without counsel; that while the court by inquiry ascertained that petitioner did not have
or desire counsel, his rights to counsel were not fully or properly explained to him.
Petitioner had by law six months within which to raise this question by appeal. No action
of any sort was taken until the presentation of this petition nearly 15 years later and after his
sentence had been fully served.
While our statutes do not provide any time limit within which to seek review by certiorari
it is our view that under all of the circumstances petitioner has failed to act within a
reasonable period of time and that our discretion, accordingly, must be exercised in a refusal
to grant the writ.
Writ 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 November 16, 1953.]
____________
70 Nev. 66, 66 (1953) Kuser v. Barengo
LOUISE M. KUSER, Appellant, v.
MARY BARENGO, Respondent.
No. 3701
March 13, 1953. 254 P.2d 447.
Appeal from the Second Judicial District Court, Washoe County, William McKnight,
Judge.
Occupant of automobile brought action against driver of automobile to recover for injuries
sustained when driver attempted to pass highway department's truck and striper at speed of 70
miles an hour and automobile left highway. The Second Judicial District Court of Washoe
County, entered judgment for driver, and occupant appealed. The Supreme Court, Badt, J.,
held that occupant was a guest within meaning of automobile guest statute, and that question
whether driver was guilty of gross negligence, so as to entitle occupant to recover, was for
jury.
Order and judgment directing a verdict for defendant on plaintiff's first cause of
action affirmed.
Order of nonsuit on plaintiff's second cause of action reversed.
Clel Georgetta and William L. Hammersmith, of Reno, for Appellant.
Griswold and Vargas, of Reno, for Respondent.
1. Automobiles.
Whether one is a guest within meaning of automobile guest statute must be determined on the facts of the
particular case. N.C.L.1931-1941 Supp., sec. 4439.
2. Automobiles.
Where plaintiff called defendant, a stranger, on telephone and asked if she might ride to convention with
defendant in defendant's automobile and plaintiff was given permission, and plaintiff, defendant, and third
person, who accompanied them, were each to pay portion of expense of gasoline and oil consumed on trip,
plaintiff was a guest within the meaning of automobile guest statute and could not recover for injuries
sustained in accident if defendant was only guilty of ordinary negligence. N.C.L.1931-1941 Supp., sec.
4439.
3. Trial.
Generally, if facts are admitted and reasonable men would draw same inferences from these
facts, generally question for decision becomes one of law for court to decide, but
where facts are in dispute, or where reasonable men would draw different inferences
from admitted facts, question is one of fact for jury.
draw same inferences from these facts, generally question for decision becomes one of law for court to
decide, but where facts are in dispute, or where reasonable men would draw different inferences from
admitted facts, question is one of fact for jury.
4. Automobiles.
In action against driver of automobile by guest to recover for injuries sustained when automobile went off
highway when driver attempted to pass at speed of 70 miles an hour highway department's truck and
striper, which were in center of two-lane highway, and which were being used to paint center line, whether
driver was grossly negligent within meaning of automobile guest statute was for jury. N.C.L.1931-1941
Supp., sec. 4439.
OPINION
This is a suit for personal injuries growing out of an automobile accident. Plaintiff sued on
two causes of action, the first by reason of defendant's alleged ordinary (as distinguished from
gross) negligence, and the second by reason of defendant's alleged gross negligence. As to the
first cause of action the court granted a motion for a directed verdict for the reason that
plaintiff was barred from recovery under the terms of the Nevada guest statute. As to the
second cause of action the court granted a nonsuit on the ground that plaintiff had not made
out a case of gross negligence under the statute.
Of the eight assignments of error, five have largely to do with questions arising from the
pleadings. The remaining three we may consider in connection with the following two points
with which this opinion is concerned. 1. Did the trial court properly determine as a matter of
law under the facts presented that the plaintiff was a guest in the defendant's car and therefore
could not recover damages for personal injuries resulting from the ordinary (as distinguished
from gross) negligence of the defendant.
1
(This issue was presented in the plaintiff's first
cause of action, as to which cause of action the court directed the jury to return a verdict
for defendant.) 2. Did the trial court properly determine as a matter of law that, under the
facts presented, the plaintiff had not made out a case of gross negligence on the part of
the defendant and that the question of gross negligence should therefore not be
submitted to the jury.
____________________

1
The applicable portions of Nevada's Guest Statute read as follows:
4439. OWNERS OR DRIVERS OF VEHICLES ABSOLVED FROM DAMAGES IN EVENT GUESTS
ARE INJURED OR
in the plaintiff's first cause of action, as to which cause of action the court directed the jury to
return a verdict for defendant.) 2. Did the trial court properly determine as a matter of law
that, under the facts presented, the plaintiff had not made out a case of gross negligence on
the part of the defendant and that the question of gross negligence should therefore not be
submitted to the jury. (This was involved in the plaintiff's second cause of action, as to which
cause of action the court in effect made an order of nonsuit.)
1. The plaintiff, Mrs. Kuser, paid the defendant, Mrs. Barengo, a portion of the expense of
the gasoline and oil consumed on the trip. The amount has been variously established as more
than $5 but less than $10. At one place in the testimony it is fixed at approximately or slightly
above $5.22. The court held that this did not constitute giving compensation for the ride
as defined in the foregoing statute so as to remove the plaintiff from the status of a guest as
there defined. The facts on this phase of the case were as follows:
Mrs. Kuser, residing in Reno, had been named a delegate to the Republican state
convention in Las Vegas and also as a delegate to the Nevada State Federation of Women's
Clubs in the same city at about the same time. Mrs. Barengo, also residing in Reno, had been
named a delegate to this convention of the Nevada State Federation of Women's Clubs.
____________________
KILLED. 1. Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways
of the State of Nevada, and while so riding as such guest receives or sustains an injury, shall have no right of
recovery against the owner or driver or person responsible for the operation of such vehicle. * * *
EXCEPTION IF DRIVER BE GUILTY OF INTOXICATION OR WILLFUL MISCONDUCT. Nothing
in this section contained shall be construed as relieving the owner or driver or person responsible for the
operation of a vehicle from liability for injury to or death of such guest proximately resulting from the
intoxication,
willful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such
vehicle; * * *
DEFINITION OF GUEST.' For the purpose of this section the term guest' is hereby defined as being a
person who accepts a ride in any vehicle without giving compensation therefor. N.C.L. 1931-1941 Supp.
delegate to this convention of the Nevada State Federation of Women's Clubs. Mrs. Marvin
Humphrey told Mrs. Kuser that Mrs. Barengo (whom Mrs. Kuser had never met) intended to
drive to Las Vegas and would probably have room in her car. Mrs. Humphrey called Mrs.
Barengo and later Mrs. Kuser called Mrs. Barengo on the phone to ask whether Mrs. Kuser
could ride with her to Las Vegas. Mrs. Kuser then testifies: I called Mrs. Barengo and asked
if I could ride with her, if she had room in her car, and she said, yes, she did, and I told her I
wanted to pay my way to Las Vegas if I rode with her and we arranged when we were to
leave, etc. Q. Will you tell us what was said about payment? A. Nothing very much, except I
said I wanted to pay and Mrs. Barengo said that was all right and we would talk about it later.
Q. Was anything said as to the amount? A. No. Plaintiff's counsel again went into the
subject. Q. What arrangement did you make with Mrs. Barengo? A. There weren't any
arrangements made; I just said I wanted to pay. When we got to Las Vegas I asked her if I
could pay for that portion of the trip and Mrs. Barengo said we would settle it later, so there
was nothing more said. A Mrs. Gillespie accompanied Mrs. Barengo and Mrs. Kuser on the
trip. After the accident on the return trip from Las Vegas, which we shall have occasion to
describe later, the subject of payment was again brought up while the three women were in
the hospital at Tonopah. It is not clear who brought the subject up first, but it appears that
Mrs. Gillespie had paid for part of the gasoline and oil through the use of her credit card. It
was suggested that the matter should be settled before the parties left the hospital. Mrs. Kuser
cashed a $10 check. Mrs. Barengo testified that the amount paid her by Mrs. Kuser was $2.22
and the amount paid Mrs. Gillespie by Mrs. Kuser was something over $3. As to the original
telephone call, Mrs. Barengo testified: At that time [Mrs. Kuser] also said of course she
would like to pay expenses of the trip, and I said we would talk about that later when we
got together."
expenses of the trip, and I said we would talk about that later when we got together. Mrs.
Kuser signed a statement in the hospital reading in part: The three of us had agreed prior to
the trip to pay all car and travelling expenses. On cross examination, with regard to this
statement, she testified: There was never any mention of the three of us dividing before we
went on the trip. I didn't know what I was to pay and that is why when we got to Las Vegas I
wanted to know because I wanted to know how to budget myself. I wanted to try to find out
how much it would come to. She told me we would settle it later and then we were to divide
it three ways. There was no mention before.
[Headnote 1]
The foregoing comprises all of the material evidence in the case that has to do with this
phase of the subject. The case is the first
2
in which we have been called upon to determine
whether or not the sharing by the plaintiff of the cost of gasoline and oil expense, under the
circumstances recited, is sufficient to remove the case from the effect of the operation of our
guest statute. The question has been considered by the courts of last resort of many of our
sister states. Appellant has cited and quoted from many cases which have held, under the
facts of those cases, that payment of a part of the gasoline and oil expense removed the case
from the effect of the guest statute. Respondent has cited many cases in which such payment
was held not to remove the plaintiff from the operation of the statute. The courts have
indulged in much refinement of reasoning and pointing out of differences and distinctions in
an attempt to reconcile the various holdings. Many different and varying elements have been
considered by the courts in governing the conclusions reached and the distinguishing of prior
decisions. Naturally we do not find the facts precisely the same in any two cases, and it
may safely be said that each case must be determined upon its own facts.
____________________

2
Although Nyberg v. Kirby, 65 Nev. 42, 188 P.2d 1006, 193 P.2d 850, concerned our guest statute, the facts
of that case were such that it affords us no assistance here.
facts precisely the same in any two cases, and it may safely be said that each case must be
determined upon its own facts. Miller v. Miller, 395 Ill. 273, 69 N.E.2d 878, 60 C.J.S. 1010,
Motor Vehicles, sec. 399 (5) a, n. 71. We have carefully considered all of the cases submitted
by appellant, but are of the opinion that the case falls rather within the category of McCann v.
Hoffman, 9 Cal.2d 279, 70 P.2d 909, 910, in which two married couples were the parties
involved, and in which the court found that it was apparently the tacit and mutual
understanding that such expenses [transportation, hotel and meals] would be shared equally.
Mr. Justice Shenk, speaking for the Supreme Court of California, with all of the justices
concurring, said:
The great weight of authority is to the effect that the sharing of the cost of gasoline and
oil consumed on a trip, when that trip is taken for pleasure or social purposes, is nothing more
than the exchange of social amenities and does not transform into a passenger one who
without such exchange would be a guest, and consequently is not payment for the
transportation or compensation within the meaning of the statute. It is obvious that if a
different result obtained under any construction of the statute its purposes would be defeated
and its effect annulled. The relationships which will give rise to the status of a passenger must
confer a benefit of a tangible nature and are limited. Chaplowe v. Powsner, 119 Conn. 188,
175 A. 470, 472, 95 A.L.R. 1177. There a distinction was made where the facts showed a
case merely of reciprocal hospitality. It was stated: Although the operation of the statute in
denying a right of recovery should not be extended, by construction, beyond the correction of
the evils and the attainment of the social objects sought by it * * * equally, the scope of the
term guest should not be so restricted as to defeat or impair those purposes, as would be the
case if one riding as a mere recipient of hospitality be excluded from the status of a guest.'
The principle announced in that case has been applied where the recipient of the
transportation furnished gasoline and oil on the journey; and where there was no
relationship of mutual benefit between the parties other than of a social nature, the rider
has been held to be a guest and not a passenger.
principle announced in that case has been applied where the recipient of the transportation
furnished gasoline and oil on the journey; and where there was no relationship of mutual
benefit between the parties other than of a social nature, the rider has been held to be a guest
and not a passenger. The mere fact that the parties in making the pleasure trip together have a
like purpose in mind does not constitute it a joint venture wherein compensation is deemed to
have been given. A host and guest may, and often do, have a common objective, in point of
time or place; yet their relationship as such is not thereby necessarily changed. There may still
be lacking a community of interest or an engagement to effect a common purpose as that term
is understood in the law of joint adventure.' Eubanks v. Kielsmeier, 171 Wash. 484, 18 P.2d
48, 49. The community of interest is lacking even though the plaintiff paid for some of the
gasoline. See also, Clendenning v. Simerman, 220 Iowa, 739, 263 N.W. 248; Morgan v.
Tourangeau, 259 Mich. 598, 244 N.W. 173. The case of Olefsky v. Ludwig, 242 App.Div.
637, 272 N.Y.S. 158, in construing the Connecticut statute, held that as a matter of law
contribution to the expenses of gasoline, oil, and garage does not constitute payment' within
the meaning of that statute, relying on Master v. Horowitz, 237 App.Div. 237, 261 N.Y.S.
722, 723, affirmed 262 N.Y. 609, 188 N.E. 86, which is to the same effect. See, also,
Askowith v. Massell, 260 Mass. 202, 156 N.E. 875.
* * * The payment of a portion of the expense, as for gasoline and oil consumed on the
trip, is merely incidental and does not constitute the moving influence for the transportation.
The provocation for the offer of transportation remains the joint social one of reciprocal
hospitality or pleasure. The same conclusion was announced in Rogers v. Vreeland, 16
Cal.App. (2d) 364, 60 P.2d 585, under similar facts, and we perceive no necessity for
adopting a different rule in construing the language employed by the Legislature.
This case has been cited with approval and followed by the courts of many other states and
is considered a leading case. Albert McGann Securities Co. v. Coen, 114 Ind.App. 60, 48
N.E.2d 58, 1000; Voelkl v. Latin, 58 Ohio App. 245, 16 N.E.2d 519; Duncan v. Hutchinson,
139 Ohio St. 185, 39 N.E.2d 140; McCornack v. Pickerell, 225 Iowa 1076, 283 N.W. 899.
[Headnote 2]
We conclude that the learned trial judge properly held as a matter of law that plaintiff's
payment of part of the gasoline and oil expense of the trip in question did not of itself change
her status from that of a guest, and accordingly properly directed a verdict for defendant on
plaintiff's first cause of action. The judgment for defendant on plaintiff's first cause of action
must therefore be affirmed.
2. We have next to consider whether it was error for the trial court to determine as a
matter of law that the plaintiff had not made out a case of gross negligence sufficient to go to
the jury, or, more specifically, whether the granting of a nonsuit on the second cause of action
was error. The facts involved in this phase of the case are as follows:
On the return trip northbound from Las Vegas to Reno the carMrs. Barengo driving and
Mrs. Kuser and Mrs. Gillespie riding with herarrived at a point some 18 miles north of
Beatty at about one o'clock in the afternoon. Mrs. Barengo had been driving at speeds varying
from 70 to 90 miles per hour, and Mrs. Gillespie had at one point asked her to slow down.
She slackened her speed for a short distance to 70 miles an hour and then resumed a greater
speed. At a point about 15 miles north of Beatty a Nevada state highway department truck
headed north on the highway contained a large sign reading, PAINTING CENTER-LINE.
KEEP RIGHT, with a large arrow pointing to the right. A highway employee on the road
was waving a flag and pointed to the sign. Mrs. Barengo slowed down for him," proceeded
about two miles at reduced speed and again increased her speed.
him, proceeded about two miles at reduced speed and again increased her speed. In the
distance, from 3,000 feet to a mile ahead, an object was seen in the center of the highway,
which no one could at first identify. As the Barengo car approached closer, it was identified
as a large red truck straddling the center line of the highway. It was propelling a striping
machine and was proceeding slowly northward along the center of the highway. It had a large
sign on back reading PASS, with a large arrow pointing to the right. It extended so far over
into the right-hand lane that in order to pass it on the right it would be necessary for the
right-hand wheels of the passing car to be on the unpaved, soft shoulder of the road. The road
was a 20-foot, two-lane, center-striped, surfaced highway. The truck, eight feet wide,
occupied four feet of each 10-foot lane, leaving a six-foot over-all paved passageway on each
side. Some distance (one witness estimated this at about 1,000 feet) back there was a warning
sign reading SOFT SHOULDERS NEXT 4 MILES, but it does not appear that Mrs.
Barengo saw or read this sign. The weather was clear, the visibility unimpaired and no other
vehicles were in the immediate vicinity. Mrs. Barengo, approaching the truck and striper at a
speed of 70 miles an hour, attempted without slackening speed to pass on the right. When her
right wheels struck the soft shoulder, the car proceeded along the shoulder some 267 feet,
swerved to the left and upon the paved surface, careening over almost to the left shoulder,
swerved back to the right, nosed into the borrow pit, shot through the air for a distance of 42
feet, turning over in the air and alighting upon its top in the sagebrush 75 feet from the right
or easterly side of the highway. There were skid marks on the highway for 156 feet after the
car passed the highway truck and striper.
[Headnotes 3, 4]
Appellant asserts and respondent concedes the general rule that if the facts are admitted
and reasonable men would draw the same inferences from those facts, generally the question
for decision becomes one of law for the court to decide, but that where the facts are in
dispute, or where reasonable men would draw different inferences from admitted facts,
the question is one of fact for the jury and not one of law for the court.
erally the question for decision becomes one of law for the court to decide, but that where the
facts are in dispute, or where reasonable men would draw different inferences from admitted
facts, the question is one of fact for the jury and not one of law for the court. Herzog v.
Mittleman, 155 Ore. 624, 65 P.2d 384, 109 A.L.R. 662; Weck v. Reno Traction Co., 38 Nev.
285, 149 P. 65. Respondent refers us to numerous cases in which the trial court was held to
be without error in holding that as a matter of law gross negligence had not been proved and
that a nonsuit should be granted. In particular she relies upon Hart v. Kline, 61 Nev. 96, 116
P.2d 672. The majority of this court there held that under the physical facts there appearing,
and which facts refuted the testimony of the plaintiff, no gross negligence of the defendant
could be concluded from his actions within the split seconds of time involved. The situation
is quite different in the present case. The truck obstructing the highway was visible so far
ahead that its nature could not even be determined. As Mrs. Barengo drove toward it the
entire situation was evident, and we are clearly of the opinion that reasonable men might
conclude that the attempt to pass it at 70 miles an hour under the conditions described
3
was
gross negligence. Although the learned trial judge quite properly adopted the definition of
gross negligence as given by this court in Hart v. Kline, 61 Nev. 96, 116 P.2d 672, that
definition does not exclude the proposition that reasonable men might conclude that speed, in
and of itself, may under the particular circumstances of the case, constitute such failure to
exercise even a slight degree of care, such aggravated character of the act or omission,
such absence of even slight diligence, or want of even scant care, such indifference to
present legal duty, such utter forgetfulness of legal obligations so far as other persons
may be affected, such heedless and palpable violation of legal duty respecting the rights
of others, as to constitute gross negligence.
____________________

3
The ruling on the nonsuit was not made until after the defendant, as well as the plaintiff, had closed her case.
Despite the fact that on motion for nonsuit the evidence is considered most favorably for the plaintiff and
interpreted most strongly against defendant, Cann v. Williams Land & Livestock Co., 56 Nev. 242, 48 P.2d 887,
respondent refers us to testimony in conflict with that of the plaintiffthat defendant came upon the highway
truck and striper suddenly upon rounding a curve, that defendant was driving only from 60 to 65 miles an hour,
that plaintiff grabbed the wheel when defendant drove her car out upon the shoulder. If these conflicts could be
considered it would be the more reason that the conflict should be resolved by the jury.
to exercise even a slight degree of care, such aggravated character of the act or omission, such
absence of even slight diligence, or want of even scant care, such indifference to present legal
duty, such utter forgetfulness of legal obligations so far as other persons may be affected,
such heedless and palpable violation of legal duty respecting the rights of others, as to
constitute gross negligence. Clark v. Hicks (Colo.), 252 P.2d 1067; Connors v. Boland, 282
Mass. 518, 185 N.E. 38. This being so, it was error to take the case from the jury by granting
a nonsuit, and for this reason a new trial must be granted.
While we have not discussed the status of the pleadings or the manner in which gross
negligence was pleaded in plaintiff's second cause of action, whether directly or by reference
to the first cause of action, it appears not unlikely that amendment of the pleadings may be in
order.
The judgment of nonsuit on appellant's second cause of action and the order denying
appellant's motion for new trial as to her second cause of action are hereby reversed and the
case remanded for a new trial of said second cause of action, with directions to permit such
amendments to the pleadings and under such terms and conditions as to the trial court may
seem proper. Appellant will recover her costs in this court.
____________
70 Nev. 77, 77 (1953) Garteiz v. Garteiz
FRANK GARTEIZ, Appellant, v. BERTHA E. GARTEIZ, Administratrix of the Estate of
Charles W. Garteiz, Deceased, BERTHA E. GARTEIZ, JERELYN SUE GARTEIZ, and
WILLIAM CHARLES GARTEIZ, Respondents.
No. 3729
March 26, 1953. 254 P.2d 804.
Appeal from the Sixth Judicial District Court, Humboldt County, D. W. Priest, District
Judge, Presiding.
Action was brought against administratrix of estate of deceased and heirs of deceased to
recover amount due under contract with deceased. The Sixth Judicial District Court,
Humboldt County, D. W. Priest, Presiding Judge, entered judgment adverse to plaintiff, and
plaintiff appealed. The Supreme Court, Eather, C. J., held that where father entered into
agreement with two sons whereby sons were to pay father $300 each month during his
lifetime, and one of the sons died intestate, and administratrix of son's estate was appointed,
and probate court, after proper notice, approved first and final account of administratrix
which contained no provisions for payment of future installments to the father, and decree of
distribution became final, it was res judicata as to right of father to recover future
installments, and was immune from collateral attack in absence of extrinsic fraud.
Affirmed.
L. O. Hawkins and Ralston O. Hawkins, of Las Vegas, for Appellant.
James A. Callahan, of Winnemucca, and McCarran, Rice, Wedge and Blakey, of Reno, for
Respondents.
1. Executors and Administrators.
Administratrix had no duty to move for sequestration of assets for payment by estate of claim not yet due.
N.C.L. 1931-1941 Supp., sec. 9882.227.
Where father entered into agreement with two sons whereby sons promised to pay father $300
each month during his lifetime, and one of the sons died intestate, and administratrix
was appointed for estate of deceased son, and father filed claim against estate for
unpaid installments of $150 a month, and administratrix filed ex parte petition with
probate court for authority to pay father unpaid installments and for further authority
to pay $150 a month for the balance of his life, order of probate court authorizing
administratrix and directing her to make such payments did not have effect of a final
judgment. N.C.L.1931-1941 Supp., secs.
sons promised to pay father $300 each month during his lifetime, and one of the sons died intestate, and
administratrix was appointed for estate of deceased son, and father filed claim against estate for unpaid
installments of $150 a month, and administratrix filed ex parte petition with probate court for authority to
pay father unpaid installments and for further authority to pay $150 a month for the balance of his life,
order of probate court authorizing administratrix and directing her to make such payments did not have
effect of a final judgment. N.C.L.1931-1941 Supp., secs. 9882.121-9882.283.
Where father entered into agreement with two sons whereby sons were to pay father $300 each month
during his lifetime, and one of the sons died intestate, and administratrix of son's estate was appointed, and
probate court, after proper notice, approved first and final account of administratrix which contained no
provisions for payment of future installments to the father, and decree of distribution became final, it was
res judicata as to right of father to recover future installments, and was immune from collateral attack in
absence of extrinsic fraud.
4. Trusts.
A constructive trust can be established only by allegations of extrinsic fraud pleaded with particularity
and supported by clear and convincing proof.
5. Judgment.
Direct attacks on final judgments or decrees, on ground of extrinsic fraud, must be supported by pleading
which alleges extrinsic fraud with particularity, and must be supported by clear and convincing proof.
Rules of Civil Procedure, rule 9(b).
OPINION
By the Court, Eather, C. J.:
Plaintiff appeals from a judgment for defendants and from an order denying his motion for
a new trial. The parties will be referred to as they appeared in the district court. The action
was tried without a jury and on July 7, 1952 judgment was rendered in favor of defendants.
The parties stipulated to waive oral argument and to submit the appeal on briefs, and it was so
ordered.
The facts are not in dispute. In so far as it is necessary to state them for the purpose of
presenting the law question involved, they are as follows: On October 9, 1941, the plaintiff,
Frank Garteiz, entered into a written agreement with F. M. Garteiz and Charles W.
On October 9, 1941, the plaintiff, Frank Garteiz, entered into a written agreement with F.
M. Garteiz and Charles W. Garteiz, his sons, by which the sons promised to pay plaintiff the
sum of $300 each month thereafter during his lifetime, together with reasonable burial and
funeral expenses upon his death. There was valuable consideration to support the agreement.
Charles W. Garteiz died intestate September 6, 1943, and his brother, F. M. Garteiz,
thereafter died testate leaving plaintiff a life estate in certain property but he receives nothing
from that estate under the agreement, which gives rise to the present controversy. The
defendants are Charles's surviving widow and two minor children.
On October 6, 1943, after proper petition and order of appointment, defendant Bertha E.
Garteiz, widow of Charles, qualified as administratrix of Charles's estate. Notice to creditors
was thereupon given, and on November 12, 1943, plaintiff filed a claim against the estate for
$900, based on unpaid installments of $150 each for the months of March through August,
1943. He attached a copy of the agreement of October 9, 1941 to his verified claim. It does
not appear from the record why the claim made no demand for the months of September,
October and November, 1943. The claim was approved by the administratrix and allowed by
the court the same day as presented. It was paid in full, and there is no dispute as to that
payment.
On June 20, 1944, about six months after the time limited for filing claims against the
estate, defendant Bertha E. Garteiz, as administratrix, filed an ex parte petition with the
probate court seeking authority to pay plaintiff the sum of $1,500 representing 10 installments
of $150 each for the months of September, 1943, through June, 1944, and the further
authority to pay plaintiff $150 per month for the balance of his life, all pursuant to the
agreement of October 9, 1941. The next day an order was entered by the court authorizing
and directing the administratrix to make the above-described payments.
directing the administratrix to make the above-described payments. It is not claimed that
notice of any kind was given as to the filing of the petition or the consequent hearing and
order.
After due and proper notice, and on January 22, 1946, a hearing was had on the
administratrix's first and final account and petition for distribution of the estate. In her final
account the administratrix included among the claims filed within the time allowed by law
plaintiff's claim for $900, together with another by him for $918. The expenditures for which
she sought credit in her account included a separate item amounting to $4,200 labelled
Monthly Allowance to Frank Garteiz. Thereupon the court made and entered its order
approving, allowing and settling the first and final account and decreeing distribution of the
estate to the defendants. In such order the court found that all claims filed against the estate
had been paid in full.
On March 24, 1950, Bertha E. Garteiz received her discharge as administratrix. The order
allowing the final account and the decree of distribution remain undisturbed by either a
motion to modify or appeal. The plaintiff has received nothing since December, 1945. This
action was commenced May 8, 1950.
By his complaint plaintiff seeks judgment against defendants for $150 for each month
from January 1, 1946, with interest, and a lien for such amount on the property coming from
the estate of Charles W. Garteiz and now held by the defendants.
Plaintiff urges reversal of the judgment below on the ground that the order of June 21,
1944 authorizing and directing Bertha E. Garteiz to pay him $150 a month for the rest of his
life is a judgment standing unaffected by the order approving the first and final account or the
decree of distribution. He admits the regularity of the order and decree and that they may not
be attacked collaterally, and he makes no claim that there is anything in the record to afford a
basis for a direct attack on the decree of distribution on the ground of extrinsic fraud.
on the decree of distribution on the ground of extrinsic fraud. We feel the judgment of the
trial court must be affirmed for the following reasons:
[Headnotes 1, 2]
1. The court's power to make the order of June 21, 1944, in effect an order of priority of
payment, and made prior to any settlement of account, is at least doubtful. In re Spanier's
Estate, 120 Cal. 698, 53 P. 357. This is especially so when made ex parte and without notice.
In re Smith's Estate, 122 Cal. 462, 55 P. 249. See also Simons v. Davenport, 66 Idaho 400,
160 P.2d 464; sec. 9882.283, N.C.L.1931-1941 Supp. Lack of verification and failure to
comply in other respects with our statute, sec. 9882.121, N.C.L.1931-1941 Supp., as well as
the fact that it was filed long after expiration of the statutory time for filing claims, leave very
little in the so-called claim to support the order. As to lack of an administrator's power to
waive the provisions of the claim statute, see Davis v. Shepard, 135 Wash. 124, 237 P. 21, 41
A.L.R. 163, and in re Landers' Estate, 34 N.M. 431, 283 P. 49. Nor did the claimant seek
sequestration of assets for payment of a claim not yet due under sec. 9882.227,
N.C.L.1931-1941 Supp. It was not the duty of the administratrix to move for such
sequestration. Cox v. Mackenzie, 70 Ariz. 308, 219 P.2d 1048. Without pursuing all or any of
these frailties of the order to a conclusion, it is at least patent that such order, made under the
circumstances recited, did not and does not have the effect of a final judgment.
[Headnote 3]
2. On January 22, 1946, after proper notice, the court approved the administratrix's first
and final account by order and decree, and entered its formal decree of distribution. When it
entered that order and decree, the probate court had jurisdiction over the subject matter, over
all persons interested in the estate, including creditors, and had undoubted authority to enter
the particular order.1 When the decree of distribution became final, it was res judicata as
to the rights of all persons interested in the estate in the absence of extrinsic fraud.
order.
1
When the decree of distribution became final, it was res judicata as to the rights of all
persons interested in the estate in the absence of extrinsic fraud. Royce v. Hampton, 16 Nev.
25 at 30; Benning v. Superior Court, 34 Cal.App. 296, 167 P. 291; Federal Farm Mortgage
Corporation v. Sanberg, 35 Cal.2d 1, 215 P.2d 721, at 723; State v. Duncan, 333 Mo. 673, 63
S.W.2d 135, at 139, and cases there cited.
[Headnotes 4, 5]
The decree of distribution is now immune from collateral attack. Dabney v. Dabney, 54
Cal.App.2d 695, 129 P.2d 470; King v. King, 83 Wash. 615, 145 P. 971. There is nothing in
plaintiff's complaint, or elsewhere in the record, to suggest the propriety of fastening a
constructive trust on the property which the defendants took as heirs of Charles W. Garteiz.
Such a trust can be established only by allegations of extrinsic fraud pleaded with
particularity and supported by clear and convincing proof. Direct attacks on judgments or
decrees which have become final in this jurisdiction must be supported by such pleading and
proof. Confer v. District Court, 49 Nev. 18, at 26, 234 P. 688, 236 P. 1097; Calvert v.
Calvert, 61 Nev. 168, 122 P.2d 426; Mazour v. Mazour, 64 Nev. 245, 180 P.2d 103.
2

We have given careful consideration to the numerous cases cited by appellant as being
contrary to the views above expressed or as bearing otherwise upon the situation, but we do
not consider them in point.
____________________

1
In her first and final account and petition for distribution the administratrix made no mention of the
existence of the order of June 21, 1944 directing her to pay $150 a month to Frank Garteiz during his lifetime,
nor to the contract which was the basis of that order. Neither did Hon. T. J. D. Salter, judge of said court, in his
order approving the first and final account and decreeing distribution of the estate to the widow and minor
children of the decedent, mention such order or contract. The testimony in support of the account and petition
for distribution was not transcribed. Speculation as to what explanation there might be for this situation would be
idle.

2
This rule of law has been carried into the Nevada Rules of Civil Procedure (N.R.C.P.), Rule 9 (b), which
became effective January 1, 1953.
We have carefully considered each and every point made by the appellant, and given the
whole case that attention which its importance demanded and have arrived at the conclusion
that the judgment should be affirmed.
It is so ordered. Respondents are allowed their costs.
Merrill and Badt, JJ., concur.
____________
70 Nev. 83, 83 (1953) Gascue v. Saralegui Land & Livestock Co.
DOMINIC GASCUE and HUGO FANUCCHI, Appellants, v. SARALEGUI LAND &
LIVESTOCK CO., a Corporation, and EMILY SARALEGUI CARRICABURU, ARNOLD
CARRICABURU, and PETER SARALEGUI, Respondents.
No. 3712
April 9, 1953. 255 P.2d 335.
Appeal from the Second Judicial District Court, Washoe County; Harold O. Taber, Judge,
Department No. 3.
Stockholders' derivative action by stockholder who had delayed six years in bringing the
action after learning of the board action complained of, and by stockholder who had acquired
his stock only 12 days before commencement of the action. The Second Judicial District
Court, Washoe County, Harold O. Taber, judge, entered judgment for defendants, and
plaintiffs appealed. The Supreme Court, Merrill, J., held that the first-mentioned stockholder
was barred by laches from maintaining the action, and held that the second-mentioned
stockholder could not maintain the action complaining of board's action taken before such
stockholder acquired his stock, in view of fact that the only stockholder who was similarly
situated and who might be affected by the litigation was the first-mentioned stockholder.
Affirmed.
See also 69 Nev. 245, 247 P.2d 874.
Kearney and Adams, of Reno, and John P. Thatcher, of Reno, for Appellants.
Lester D. Summerfield and Harlan L. Heward, of Reno, for Respondents.
1. Corporations.
Where director's services as general manager were of substantial value to corporation and its stockholders
and action of board in awarding general manager $200 per month for 12 years' services was without fraud,
general manager would not be required to pay back compensation so received regardless of whether board
was legally constituted to take such action. St.1951, c. 220.
2. Corporations.
Stockholder, who delayed six years after learning of corporate board action which accepted offer of one
director to purchase treasury stock at stipulated price in bringing suit for cancellation of stock certificate
issued to director pursuant to such board action, was barred by laches from maintaining such suit.
3. Corporations.
Where only stockholder similarly situated with person who had purchased stock after board action
complained of was barred by laches from maintaining derivative suit, and purchaser of stock acquired the
stock only 12 days before commencement of such suit, purchaser could not maintain such suit.
OPINION
This is characterized by appellants as a derivative suit brought by them as minority
stockholders of Saralegui Land & Livestock Company on behalf of that corporation and
against its officers and members of its board of directors. In the complaint it was originally
asserted that the board had failed and refused to call stockholders' meetings, to permit
examination of the corporation books, to make financial reports or to declare dividends; that
the appellants, accordingly, had been excluded from participation in the corporation's affairs
and from any benefit therefrom. These complaints were all withdrawn prior to submission of
the case to the trial court.
case to the trial court. As submitted the suit simply sought cancellation of a stock certificate,
allegedly issued without proper authority and payment back to the corporation of salary paid
by the corporation, allegedly without proper authority. Judgment of the trial court, acting
without jury, was for respondents and this appeal is from that judgment.
The Saralegui Land & Livestock Company is a small family corporation engaged in the
sheep business in this state and in California. It was organized in 1932 by Antonio Saralegui.
At the time of his death in 1938 those interested in the corporation were his four children and
a niece, Candida. Of the children, the only one having any active concern with the conduct of
the business was a daughter, Emily, who, assisting her father in many ways, had acquired a
considerable knowledge of all phases of the business. Candida's function was largely that of
cook and housekeeper for the family. Upon Antonio's death the corporation bought back all
stock in the hands of the other three children and Emily and Candida proceeded to operate the
corporation's affairs. Their stock holdings at this point were 17,793 shares each. Two shares
were placed in the name of Samuel Tippett, their legal counsel. The three stockholders
constituted the corporation's board of directors.
In 1938, following Antonio's death, a board meeting was held at which all members were
present. Emily was appointed general manager of the business at a salary the amount of which
was left to be determined by future action of the board. Subsequently Emily married
respondent Arnold Carricaburu and Candida married appellant Dominic Gascue. In 1940
Candida died leaving her stock interest divided between her husband and one Kennedy
through whom appellant Fanucchi has secured his stock interest.
In March, 1941, after Candida's death and before the vacancy thereby created in the board
had been filled, two board meetings were held, attended by Emily and Tippett.
board meetings were held, attended by Emily and Tippett. At the first of these the board fixed
the amount of salary due Emily for past services at $5,543.07. At the second meeting the
board accepted Emily's offer to purchase 5,000 shares of treasury stock for the sum of $5,500.
In September, 1941, the board vacancy having been filled by the appointment of one of
Emily's brothers, a board meeting was held attended by Emily and Tippett at which Emily
was voted a salary of $200 a month.
[Headnote 1]
It is contended that the action taken by the board in 1941 was illegal for lack of a
competent board (as to the first two meetings) and lack of a quorum (as to all three meetings)
since Emily, as is contended, was disqualified by interest from participation. This suit seeks
cancellation of the stock certificate for 5,000 shares issued to Emily and the return by her of
all salary paid. For the purposes of this decision we accept, without deciding, that the action
of the board was without proper authority. (It may be noted that certain elements of the
asserted illegality have since been removed by statute. 1951 Stats. of Nev., ch. 220, P. 328.)
In any event the judgment of the trial court must be affirmed.
As to the return of salary the record demonstrates:
First: The action of the board, whether authorized or not, was without fraud. Such was the
determination of the trial court and the facts abundantly support it. The action having been
taken pursuant to action taken in 1938 at a meeting attended by Candida, good faith can
hardly be questioned.
Second: Emily's services and management were of substantial value to the corporation and
to its stockholders. She was an experienced and competent operator and was so recognized by
those with whom she dealt. Taking hold as manager at a time when the corporation was in
debt and of questionable solvency she has through efforts over a period of 12 years, wiped out
all outstanding indebtedness and increased the capital of the business to a value of over
$200,000.
outstanding indebtedness and increased the capital of the business to a value of over
$200,000.
Third: Emily was entitled to compensation for her services. This was recognized by formal
action of a competent board in 1938. It was upon this basis that she has served as general
manager from the outset.
Fourth: $200 a month was not excessive. It was, in fact, modest. On occasions Emily, at
this figure, was being paid less than was paid to the company's sheepherders.
It would, we feel, be manifestly inequitable to demand that, for an apparently innocent
failure to comply with the technical formal requirements of corporate action, Emily be held to
have contributed her valuable services for 12 years without right to compensation. Under
circumstances substantially identical as to lack of authority but far less appealing as to
equitable considerations it has been held: An officer whose compensation is neither
excessive nor unreasonable cannot be required to pay back any part of it to the corporation.
Shaw v. Harding, 306 Mass. 441, 28 N.E.2d 469.
As to the stock certificate, the record indicates that at the time of its issuance the stock had
a book value of $2.25 a share although the last stock transfers, three years earlier, had been
through acquisition of 14,400 shares from the other three Saralegui children at a total cost of
$13,412. Appellants contend that the certificate was issued for the purpose of giving Emily
corporate control. However, the trial court expressly found, Despite the wording of the
[corporate] resolution, which recites that the stock was issued for the sum of $5,543.07, it is
the fact that Emily Saralegui acted on Mr. Tippett's advice and took the stock for money
owing to her for back wages which had never been previously paid to her. It may well be
questioned, however, whether in the light of the stock's book value and the agreed amount of
the salary then due such compensation was not excessive and subject to partial remission.
However, regardless of the light in which the stock issuance be viewed, neither lack of
authority to issue the certificate nor fraud may here be asserted by these appellants.
[Headnote 2]
Appellant Gascue is clearly barred by laches. See: 18 C.J.S., Corporations, sec. 569, p.
1290. The record conclusively demonstrates that in 1942 he acquired full knowledge of the
action of the board taken in 1941. This suit was not commenced until 1948, a period well
beyond that of our statute of limitations, and was not brought on to trial until 1951, during all
of which time Gascue as stockholder had enjoyed the benefits of Emily's management. That
the corporation was under the control of Emily and therefore in no position to sue in its own
behalf does not relieve him of his own neglect. Beal v. Smith, 46 Cal.App. 271, 189 P. 341.
Appellant Fanucchi was not a stockholder at the time of the board action of which he now
complains; nor did his stock interest thereafter devolve on him by operation of law. The right
of a stockholder under these circumstances to maintain a derivative action on behalf of the
corporation has never been decided in this state and other jurisdictions are in direct conflict
upon the point. See: Ann. 148 A.L.R. 1090. Since Hawes v. Oakland, 104 U.S. 450, 26 L.Ed.
827, the rule in the federal courts has operated to preclude such an action by such a party
plaintiff. With reference to that rule it was stated by Commissioner Roscoe Pound in Home
Fire Insurance Co. v. Barber, 67 Neb. 644, 93 N.W. 1024, 1028, 60 L.R.A. 927, 108
Am.St.Rep. 716:
Sound reason and good authority sustain the rule that a purchaser of stock cannot
complain of the prior acts and management of the corporation. * * * The rule has its
foundation in a sound and wholesome principle of equity, namely, that the rules worked out
by chancellors in furtherance of right and justice shall not be used, because of their technical
character, as rules to reach inequitable or unjust results.
reach inequitable or unjust results. Resting on this basis, the value and importance of the rule
* * * are constantly manifested.' [authority] The right of the stockholder to sue exists because
of special injury to him for which otherwise he is without redress. If his interest is trifling,
and the injury thereto of no consequence, he cannot sue to compel righting of wrongs to the
corporation. [authority] Hence there is obvious reason for holding that one who held no stock
at the time of the mismanagement ought not to be allowed to sue, unless the mismanagement
or its effects continue and are injurious to him, or it affects him specially and peculiarly in
some other manner. [authority] Except in such cases, the purchaser ought to take things as he
found them when he voluntarily acquired an interest. If he was defrauded in the purchase, he
should sue the vendor. As to the corporation and its managers, so long as he is not injured in
what he got when he purchased, and holds exactly what he got and in the condition in which
he got it, there is no ground of complaint. [authority]
This court in one sense has already indicated its approval of the federal rule through
adoption of that rule as a rule of civil procedure effective January 1, 1953. Rule 23 (b)
N.R.C.P. In the absence of such a rule the question is whether Hawes v. Oakland should here
be followed.
[Headnote 3]
We note that neither Fanucchi nor his predecessor, Kennedy, took the witness stand. The
record is silent as to the dates on which either of them discovered the wrongs of which
Fanucchi now complains; as to whether either of them was subject to the bar of laches; as to
the circumstances under which Fanucchi's stock interest was acquired. That interest was
acquired but 12 days before commencement of this suit. If it cannot be said that it was
acquired primarily for purposes of litigation it would appear, at least, that at the time of
acquisition there was intent to litigate.
of acquisition there was intent to litigate. The only stockholder similarly situated whom
Fanucchi's litigation might affect is appellant Gascue, whose laches have barred his
independent right to complain. Equity can hardly avoid a dubious study of the hands which
this litigant offers for inspection. Under the particular facts of this case we conclude that
Hawes v. Oakland should be followed.
____________
70 Nev. 90, 90 (1953) Ex Parte Fouquette
In the Matter of the Application of Clayton
Octave Fouquette for a Writ of Habeas Corpus.
No. 3745
April 8, 1953. 255 P.2d 733.
Petition for stay of execution pending appeal from order of the First judicial district court,
in and for the county of Ormsby, Clark J. Guild, Judge, denying an application for a writ of
habeas corpus.
The Supreme Court, Badt, J., held that trial judge properly denied petition for writ of
habeas corpus.
Petition denied.
John W. Bonner, of Las Vegas, for Appellant.
W. T. Mathews, Attorney General, Geo. P. Annand, Wm. N. Dunseath and John W. Barrett,
Deputy Attorneys General, for Respondent.
Habeas Corpus.
Where trial judge had before him entire record under which supreme court had sustained first-degree
murder conviction, and had denied rehearing and had thereafter denied habeas corpus, and trial judge was
satisfied that no new facts and no new propositions of law were presented, trial judge properly denied
petition for writ of habeas corpus.
OPINION
On Petition for Stay of Execution
On April 7, 1953 petitioner lodged in this court his appeal from an order made April 6,
1953 by the First judicial district court denying the petitioner's application to that court for a
writ of habeas corpus. At the same time he presented to this court and to the justices thereof
his petition for stay of execution of the death sentence presently set for April 13, 1953. The
attorney general opposed the granting of the petition. The history of the matter to date is as
follows: On November 20, 1948 Fouquette was convicted of first-degree murder with the
penalty fixed at death, in the Eighth judicial district court, in and for Clark county, and the
judgment and order denying his motion for new trial were affirmed by this court August 10,
1950. State v. Fouquette, 67 Nev. 505, 221 P.2d 404. Petition for rehearing was denied by
this court November 16, 1950. State v. Fouquette, 67 Nev. 505, 541, 221 P.2d 404. Certiorari
was denied by the Supreme Court of the United States May 14, 1951. Fouquette v. State, 341
U.S. 932, 71 S.Ct. 799, 95 L.Ed. 1361. On July 5, 1951 this court denied his petition for a
writ of habeas corpus. Ex Parte Fouquette, 68 Nev. 362, 233 P.2d 859. Certiorari was again
denied by the Supreme Court of the United States January 28, 1952. 342 U.S. 928, 72 S.Ct.
369, 96 L.Ed. 691.
He sought without success a writ of habeas corpus from the United States District Court
for the District of Nevada, which gave a certificate of probable cause but denied a stay of
execution. He then sought and obtained an order from the United States Circuit Court of
Appeals, 9th Circuit, which remanded the case to the United States District Court for further
proceedings and made an order staying execution. Fouquette v. Bernard, 198 F.2d 96. After
such further proceedings, the district court again denied habeas corpus.
the district court again denied habeas corpus. This was affirmed August 21, 1952 by the
Circuit Court. 9 Cir., 198 F.2d 860. The United States Supreme Court again denied certiorari
March 9, 1953, 73 S.Ct. 652. During the pendency of each of such further proceedings
following his conviction his execution was postponed by appropriate orders. On some eight
or nine separate occasions a date was fixed for his execution and the same is now set for
April 13, 1953.
On April 6, 1953 petitioner again sought a writ of habeas corpus from the First judicial
district court, in and for Ormsby county, which was on said date denied. Said district court
also denied his application for a certificate of probable cause or for a stay of execution
pending appeal to this court.
1

Petitioner frankly concedes that he presents no new facts and no new propositions of law
(other than those discussed below) not considered and decided by this court in the appeal
from the judgment, State v. Fouquette, 67 Nev. 505, 221 P.2d 404, and in our denial of
habeas corpus, 68 Nev. 362, 233 P.2d 859. His petition for a stay of execution recites that the
principal point raised on his appeal from the district court's order of April 6, 1953 denying his
application for habeas corpus is that his defense of insanity interposed at the original trial of
said case had been tried in the Clark County newspapers prior to the trial through elaborate
statements given to such newspapers by the District Attorney of said County and by other
officials working on said case; that the publication of such articles, freely circulated caused
such a prejudice against appellant that he did not have an opportunity to fairly present his
defense before an impartial jury; that requiring him to go to trial after his motion for
change of venue, presenting such articles together with numerous affidavits of citizens
conclusively established that the Court was without jurisdiction because such a trial is not
in accordance with civilized concepts of due process of law; that the subsequent verdict
and judgment deprived appellant of his life without due process of law contrary to Article
1, section S of Nevada Constitution and Section 1 of Fourteenth Amendment to United
States Constitution."
____________________

1
An order granting or denying a petition for a writ of habeas corpus, heretofore not appealable under the
statutes of this state, was made appealable by either the petitioner or the state by An Act to amend an Act
entitled, An Act concerning the writ of habeas corpus,' approved December 19, 1862, approved March 25,
1953. Stats. 1953, chap. 205, p. 257, amending section 3 of section 11377, N.C.L.1929.
before an impartial jury; that requiring him to go to trial after his motion for change of venue,
presenting such articles together with numerous affidavits of citizens conclusively established
that the Court was without jurisdiction because such a trial is not in accordance with civilized
concepts of due process of law; that the subsequent verdict and judgment deprived appellant
of his life without due process of law contrary to Article 1, section 8 of Nevada Constitution
and Section 1 of Fourteenth Amendment to United States Constitution.
He contends that Shepherd v. Florida, 341 U.S. 50, 71 S.Ct. 549, 95 L.Ed. 740, (not
decided by the Supreme Court of the United States until April 9, 1951, and not presented to
us on the appeal from the judgment or the petition for habeas corpus) is controlling and leads
to the conclusion that under the circumstances of the adverse newspaper publicity the trial
court was without jurisdiction to convict him.
The point is without merit. The per curiam opinion of the United States Supreme Court in
Shepherd v. Florida reads simply as follows: The judgment is reversed. Cassell v. Texas,
339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839. The Texas conviction was reversed upon the sole
ground that the method of jury selection discriminated against the Negro race. Petitioner's
reliance however is upon the opinion of Mr. Justice Jackson, with whom Mr. Justice
Frankfurter joined, concurring in the reversal, but not upon the authority of Cassell v. Texas.
They thought that reliance on this ground was to stress the trivial and ignore the important,
which referred to the inflamed public mind growing out of newspaper publications which
recited, among other things, that the defendants had confesseda statement entirely without
substantiation of any kind, and which was never thereafter repudiated either by the paper or
by the official purporting to have made the statement. Many other circumstances (gathering of
mobs, burning of Negro homes, threats of lynchings, etc.) moved these especially concurring
justices to the conclusion that the defendants "were prejudged as guilty and the trial was
but a legal gesture to register a verdict already dictated by the press and the public
opinion which it generated."
especially concurring justices to the conclusion that the defendants were prejudged as guilty
and the trial was but a legal gesture to register a verdict already dictated by the press and the
public opinion which it generated. They concluded that the convictions, accompanied by
such events, do not meet any civilized conception of due process of law. In the first place the
conclusions of the two justices thus concurring in the result were not the holding of the court;
in the second place the circumstances surrounding the Fouquette trial may not be compared
with those existing in the Shepherd trial; in the third place the Shepherd case was submitted
to the United States Supreme Court in support of at least two of Fouquette's applications to
that court for certiorari.
We emphasized above petitioner's reliance upon what he contends is a new proposition of
law, not heretofore presented to this court or to the federal courts, namely, that his conviction
not only deprives him of his life without due process but that by reason of the circumstances
and by reason of the language used by Justices Jackson and Frankfurter in the Shepherd case
and other pronouncements of the supreme court, the trial court was without jurisdiction to try
him. It is evident however that this challenge of jurisdiction is simply attaching another label
to the identical points raised in the prior proceedings in both the state and federal courts.
Petitioner further contends however that an entirely new question of law arises in his
present appeal since it is an appeal from an order of the district court denying habeas corpus
under the statute enacted this year by the legislature and cited in footnote 1, supra, not
heretofore considered by this court. He contends that the district court's refusal to entertain
his petition was a rejection of a jurisdiction clearly vested in the district court; that
subdivision c of section 3, as added to the old habeas corpus act, by the 1953 amendment, and
which denies the right of application to a district court for habeas corpus after an application
for such writ has been denied by the supreme court of the state, may not apply retroactively
to him.
apply retroactively to him. That the district court refused to entertain the petition is not
entirely clear. The meaning of the phrase may vary according to its surroundings. Brown v.
Allen, 344 U.S. 443, 73 S.Ct. 397, 437. The learned district court did, it is true, state from the
bench that he had no jurisdiction. He further stated however that it was clear from the opinion
on the appeal from the judgment that the trial court gave the defendant every right to be
heard and to have a fair trial. He discussed the matter of prejudice resulting from the
newspaper articles and the circumstances growing out of the motion for change of venue, this
court's finding of no error and that Fouquette had a fair and impartial trial. It is doubtful
whether anything further may be concluded from the district court's order than that it
determined from a full consideration of the record (the entire record on appeal from the
judgment and on the application to this court for habeas corpus being before it) that a hearing
was unnecessary. Brown v. Allen, supra. Accordingly we find it unnecessary to discuss the
question raised by petitioner with regard to interpretation of the habeas corpus statute as
amended by the act of 1953.
Respondent contends that under section 11192.01, N.C.L.1943-1949 Supp.,
2
this court is
without power to grant a stay of execution because the present appeal is not one from a
judgment of death. Petitioner replies that the practical effect of the denial of his petition for
habeas corpus, with his execution set for April 13, 1953 is to make the same a judgment of
death. This likewise we find it unnecessary to discuss or to determine. We find our own
course in the matter clear even if we accept the special concurring opinions in Shepherd v.
Florida, supra, as indicating the propriety of the entertainment by the federal courts of a
petition for habeas corpus, in a proper case, either upon the record or upon the
presentation of new facts after affirmance of a conviction by the highest state court and
after denial of habeas corpus by that court and denial of certiorari by the United States
Supreme Court. The present attitude of the United States Supreme Court to such a
situation finds its latest expression in Brown v. Allen, supra. After referring to the
principle enunciated in Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct.
____________________

2
No judge, court, or officer, other than the governor or the board of pardons and parole commissioners as
authorized in sections 13 and 14, article V, constitution of Nevada, shall stay the execution of a judgment of
death, unless an appeal from such judgment of death is taken to the supreme court of Nevada. When an appeal is
taken from a judgment of death, the supreme court, or any justice thereof in vacation, may stay the execution
until the appeal is heard and determined; * * *
accept the special concurring opinions in Shepherd v. Florida, supra, as indicating the
propriety of the entertainment by the federal courts of a petition for habeas corpus, in a proper
case, either upon the record or upon the presentation of new facts after affirmance of a
conviction by the highest state court and after denial of habeas corpus by that court and denial
of certiorari by the United States Supreme Court. The present attitude of the United States
Supreme Court to such a situation finds its latest expression in Brown v. Allen, supra. After
referring to the principle enunciated in Darr v. Burford, 339 U.S. 200, 214, 70 S.Ct. 587, 94
L.Ed. 761, governing applications for habeas corpus before successive federal judges, the
court said [344 U.S. 443, 73 S.Ct. 410]: Applications to district courts on grounds
determined adversely to the applicant by state courts should follow the same principlea
refusal of the writ without more, if the court is satisfied, by the record, that the state process
has given fair consideration to the issues and the offered evidence, and has resulted in a
satisfactory conclusion. Where the record of the application affords an adequate opportunity
to weigh the sufficiency of the allegations and the evidence, and no unusual circumstances
calling for a hearing are presented, a repetition of the trial is not required. Again: Although
they have the power, it is not necessary for federal courts to hold hearings on the merits, facts
or law a second time when satisfied that federal constitutional rights have been protected.
And further: As the state and federal courts have the same responsibilities to protect
persons from violation of their constitutional rights, we conclude that a federal district court
may decline, without a rehearing of the facts, to award a writ of habeas corpus to a state
prisoner where the legality of such detention has been determined, on the facts presented, by
the highest state court with jurisdiction, whether through affirmance of the judgment on
appeal or denial of post-conviction remedies. Brown v. Allen, supra. The foregoing are from
the opinion of the court speaking through Mr.
from the opinion of the court speaking through Mr. Justice Reed. Mr. Justice Frankfurter, in
an extended concurring opinion and in an appendix thereto, attempts to spell out more
definitely circumstances which should tend to limit the federal habeas corpus jurisdiction
without closing the doors to its clear constitutional right to entertain a petition in a proper
case. The opinions in Brown v. Allen and two other allied cases consume something over one
hundred printed pages containing numerous expressions of the utmost importance upon the
subject discussed. The portions of the opinion quoted above, as well as others, apply with
most persuasive effect to the present situation.
We conclude that the learned district judge, having before him the entire record under
which this court sustained the conviction, denied a rehearing and thereafter denied habeas
corpus, and being satisfied that no new facts and no new propositions of law were presented,
was without error in denying the petition. If we are thus prematurely deciding the merits of
the present appeal, it is because of our realization of the responsibility resting upon us in
considering the application for a stay of execution and because the entire issue considered at
this time, upon a full presentation by the petitioner and the state, has been in the nature of a
motion to dismiss the appeal. Technically the only matter before us, as has been said, is a
petition for a stay of execution. That petition is hereby denied.
____________
70 Nev. 98, 98 (1953) Rogers v. Thatcher
BILLIE A. ROGERS, a Single Woman, Appellant, v. RENO THATCHER, as Executrix of
the Estate of E. W. ROGERS, Also Known as ED. W. ROGERS, Deceased, Respondent.
No. 3735
April 13, 1953. 255 P.2d 731.
The Second Judicial District Court, Washoe County; John S. Belford, Judge, Department
No. 1, entered judgment for defendant and thereafter denied plaintiff's motion for new trial,
and plaintiff appealed from the judgment and the order. Defendant made motions to dismiss
the appeal from the order and to limit scope of review on appeal from judgment, so as to
exclude consideration of errors of law occurring during trial or sufficiency of evidence to
support findings. The Supreme Court, Badt, J., held that since notice of appeal from order
was not within prescribed statutory time, appeal from order was required to be dismissed and
scope of review on appeal from judgment was required to be limited.
Motions granted.
Royal A. Stewart, of Reno, for Appellant.
Oliver C. Custer and Louis Mead Dixon, of Reno, for Respondent.
1. Appeal and Error.
Service of notice of appeal within prescribed statutory time is mandatory and jurisdictional.
N.C.L.1931-1941 Supp., secs. 9385.60, 9385.61.
Where order denying new trial was entered July 18, and notice of such order was served on defendant on
July 24, and plaintiff did not serve and file her notice of appeal from order until November 10, appeal from
order was required to be dismissed because not made within statutory period. N.C.L. 1931-1941 Supp.,
secs. 9385.60, 9385.61.
Fact that appeal was pending on effective date of rule of civil procedure providing that any party
aggrieved may appeal, with or without first moving for new trial, and that supreme court may consider
errors of law and sufficiency of evidence, and may remand for new trial, whether or not a
motion for new trial has been made did not entitle supreme court to consider errors
of law occurring during the trial and sufficiency of evidence to support findings or
judgment, where appeal from order denying new trial was ineffective because notice
was not timely.
evidence, and may remand for new trial, whether or not a motion for new trial has been made did not entitle
supreme court to consider errors of law occurring during the trial and sufficiency of evidence to support
findings or judgment, where appeal from order denying new trial was ineffective because notice was not
timely. Rules of Civil Procedure, rules 72(a), 86.
Fact that time for serving and filing bill of exceptions under existing statutes was extended by trial court
to November 10, 1952, and fact that time was thereafter further extended to February 4, 1953 within which
to file record on appeal, did not call into play Rules of Civil Procedure, which became effective January 1,
1953, and did not enlarge scope of review by supreme court on appeal from judgment to embrace all errors
of law and consideration of sufficiency of evidence without appeal from order denying new trial. Rules of
Civil Procedure, rules 72(a), 73(g), 75, 76, 86.
Where appeal from order denying new trial was dismissed, because notice of appeal was not timely,
supreme court's review on appeal from judgment was so limited as to exclude consideration of errors of law
occurring during trial or sufficiency of evidence to support findings or judgment. N.C.L. 1931-1941 Supp.,
secs. 9385.60, 9385.61.
OPINION
On Motion to Dismiss Appeal from Order Denying
New Trial, Etc.
This is the first case to reach this court requiring an interpretation of the Nevada Rules of
Civil Procedure (N.R.C.P.), which became effective January 1, 1953.
The district court entered judgment in favor of defendant and thereafter denied plaintiff's
motion for a new trial. Plaintiff appealed from the judgment and from the order. Respondent
has moved to dismiss the appeal from the order denying new trial on the ground that the
notice of appeal from such order was not served or filed within the period of 60 days as
required by our statute. N.C.L.1931-1941 Supp., secs. 9385.60 and 9385.61.
[Headnotes 1, 2]
1. The order denying new trial was entered July 18, 1952. Notice of such order was served
on defendant July 24, 1952. The last day for notice of appeal from said order was September
22, 1952. Plaintiff served and filed her notice of appeal from the judgment and from the order
denying new trial on November 10, 1952well within the six months' statutory period for
appeal from the judgment but some 49 days after the expiration of the statutory time for
appeal from the order denying new trial. This court has on numerous occasions held that
service of the notice of appeal within the prescribed statutory time is mandatory and
jurisdictional. In re Powell's Estate, 63 Nev. 19, 158 P.2d 545. There can accordingly be no
question but that the appeal from the order denying new trial must be dismissed.
[Headnote 3]
2. This however leaves us with a further problem, as appellant contends that under the
present Nevada Rules of Civil Procedure (N.R.C.P.) the notice of the appeal from the order
denying new trial may be considered surplusage; that under Rule 72 (a) the supreme court
may on appeal from the judgment consider errors of law and the sufficiency of the evidence
without a motion for new trial; and that under Rule 86 such situation applies to the present
appeal because the same was a proceeding in an action then pending.
Rule 72 (a) reads as follows:
Rule 72. Appeal From a District Court to the Supreme Court. (a) Aggrieved Party May
Appeal. Any appealable judgment or order in a civil action or proceeding may be appealed
from and reviewed as prescribed by these rules, and not otherwise. Any party aggrieved may
appeal, with or without first moving for a new trial, and the Supreme Court may consider
errors of law and the sufficiency of the evidence, and may remand for new trial, whether or
not a motion for new trial has been made."
remand for new trial, whether or not a motion for new trial has been made.
Rule 86 reads as follows:
Rule 86. Effective Date. These rules will take effect on the date specified by the Supreme
Court. They govern all proceedings in actions brought after they take effect and also all
further proceedings in actions then pending, except to the extent that in the opinion of the
court their application in a particular action pending when the rules take effect would not be
feasible or would work injustice, in which event the former procedure applies.
Both parties agreed during the oral argument in open court that the present proceedings
called for a pronouncement by this court as to the extent of its review upon the appeal from
the judgment.
That part of Rule 86 making the new rules applicable to all further proceedings in actions
then pending may not, in our opinion, be interpreted as reviving or restoring a right of appeal
that did not exist before the new rules took effect. Appellant may therefore not be advantaged
by the provision of Rule 72(a) authorizing this court to consider errors of law and the
sufficiency of the evidence on the appeal from the judgment alone. A similar situation arose
on several occasions in the federal courts. The federal rules became effective September 16,
1938, and federal Rule 86(a) corresponds with Rule 86 N.R.C.P. as governing further
proceedings in pending actions. In Standard Acc. Ins. Co. v. United States, Etc., 1 Cir., 103
F.2d 501, 503, appellant sought the advantage of Rule 74 providing that any one or more
parties interested in a joint judgment might appeal separately without summons and
severance. The circuit court said: But Rule 74 was not in existence prior to September 16,
1938, and became effective only on that day. It had no application to an appeal taken prior to
that time. Appeals so taken are governed by the rules then existing * * *.
the rules then existing * * *. [T]he validity of [appellant's] appeal must be considered and
determined with reference to those rules. In McCrone v. United States, 307 U.S. 61, 59 S.Ct.
685, 687, 83 L.Ed. 1108, the court said: [T]he contempt judgment had become unappealable
well before the effective date of the new Rules. Therefore, petitioner is not aided by the
provision of Rule 86 that the new Rules shall govern all * * * actions then pending, * * *.'
This actionfrom which there was then no right of appealwas not pending within the
meaning of the Rule. The Court of Appeals was not in error in dismissing petitioner's appeal
for failure to comply with the statutory requirements governing civil appeals. Its judgment is
affirmed. Other federal decisions are of similar purport.
[Headnote 4]
3. Appellant contends that because her time for serving and filing a bill of exceptions
under then existing statutes was extended by the trial court to November 10, 1952, and
because her time was thereafter further extended to February 4, 1953 within which to file her
record on appeal (see Rules 73(g), 75 and 76 N.R.C.P.), on which date she actually filed her
Transcript of Record on Appeal and Bill of Exceptions, the new rules were called into play
to the exclusion of any of the appellate procedural requirements theretofore existing, and that
therefore, under Rule 72(a), the scope of the review by this court on the appeal from the
judgment embraced all errors of law and consideration of the sufficiency of the evidence
without an appeal from the order denying new trial. The contention is not sound. The
extensions of time for serving and filing a bill of exceptions under the old statutory procedure
and for filing a record on appeal under Rule 73(g) do not affect our conclusion as to the
limitation of Rule 86.
[Headnote 5]
The appeal from the order denying new trial is hereby dismissed, and the scope of this
court's review on the appeal from the judgment is now so limited as to exclude the
consideration of errors of law occurring during the trial or the sufficiency of the evidence
to support the findings or judgment.
appeal from the judgment is now so limited as to exclude the consideration of errors of law
occurring during the trial or the sufficiency of the evidence to support the findings or
judgment. It is so ordered.
____________
70 Nev. 103, 103 (1953) Ward Et Al. v. Lee
JOHN WARD, Individually and as Administrator of the Estate of William Ward, Deceased,
ALFRED WARD, LETTIE WARD, Also Known as Letty Ward, a Widow, WILLIAM
WARD, Jr., DOROTHY GINOCCHIO and JOSEPH B. GINOCCHIO, Appellants, v.
PEARL M. LEE, Respondent.
No. 3720
April 14, 1953. 255 P.2d 1046.
Appeal from the Second Judicial District Court, Washoe County; A. J. Maestretti, Judge,
Department No. 2.
Suit by divorced wife against divorced husband and mortgagees to enjoin sale under trust
deed, which had been executed by husband and wife during marriage on property which in
subsequent divorce proceeding was awarded to wife, and to declare that property was free
from such incumbrance. The Second Judicial District Court, Washoe County, entered
judgment for plaintiff, and the mortgagees appealed. The Supreme Court, Merrill, J., held,
inter alia, that even if the husband, with permission of the mortgagees, had not used the
borrowed funds in the manner which the mortgagees and husband had told the wife they
would be used, since the funds were used to reduce another financial obligation of the
husband, the community as a whole did not suffer and the wife was not injured.
Reversed and remanded with instructions.
Emerson J. Wilson and Frank R. Petersen, of Reno, for Appellants.
Howard W. Babcock and Kenneth P. Dillon, of Reno, for Respondent.
1. Mortgages.
Where wife allegedly was induced to join in execution of trust deed by representation that husband would
use money for certain purpose, even if husband, with permission of mortgagees, used funds to satisfy other
obligations of husband, wife suffered no property loss, in view of fact that community was not diminished,
and, therefore, wife, to whom mortgaged property was awarded by divorce decree, was not entitled to
cancellation of trust deed on ground of fraudulent representation.
2. Mortgages.
Any fraud and injury attendant to obtaining deed of trust from husband and wife were compensated and
eliminated by informed action taken by divorce court in exercise of its discretion in accomplishing property
division whereby wife was awarded mortgaged property, and, therefore, wife was not entitled to
cancellation of trust deed on ground that mortgagees had been guilty of misrepresentations of fact in
obtaining the mortgage.
3. Mortgages.
Where wife in divorce action which resulted in her being awarded mortgaged realty did not contend that
elements of breach of contract and fraud by mortgagees and husband redounded to benefit of mortgaged
property and ran with it as a connected chose in action, such contention was not available to provide basis
for intervention of equity in wife's behalf in proceeding to enjoin sale under trust deed and to declare
property free from such incumbrance.
4. Divorce.
Although divorced husband was not party to appeal by wife from adverse judgment in proceeding to
enjoin sale under trust deed executed by husband and wife on property which was subsequently in divorce
proceeding awarded to wife and to declare the property free from such incumbrance, such decree would be
considered in determining respective rights of wife and mortgagees, in view of fact that wife relied upon
such decree to bring suit as owner of the property.
OPINION
This suit was brought by respondent Pearl Lee against appellants to enjoin them from
proceeding with sale under a trust deed against her property and to declare that property
free from such encumbrance.
sale under a trust deed against her property and to declare that property free from such
encumbrance. Judgment of the trial court acting without jury was in her favor and the
defendants have appealed.
In 1945 Edd and Pearl Lee were husband and wife. Edd Lee was engaged in an extensive
construction business which was incorporated under the name of Edd Lee, Inc. The Ward
Brothers were brick contractors and on many occasions had done business with Lee in that
capacity. Lee was about to enter upon construction in connection with certain housing
projects and it was necessary for him to post a completion bond. As a condition to execution
of such bond the bonding company required the deposit in escrow of the sum of $25,000. Lee
approached the Wards for a loan of this amount for this purpose. The Wards agreed, provided
security was given in the form of a trust deed to apartment property in Reno owned by the
Lees.
In July, 1945, Lee and the Wards called on Pearl Lee to secure her consent to such trust
deed and her signature on the necessary documents. Lee and the Wards represented to her that
the money so borrowed would be deposited in escrow to comply with the requirements of the
bonding company; that upon completion of the housing projects and exoneration of the bond
the $25,000 would be repaid to the Wards and the apartment property thus cleared of their
trust deed. Upon this assurance Pearl Lee consented to and joined in the transaction with the
Wards.
During 1946 and 1947 the housing projects were completed and the escrow ultimately
closed. The $25,000 involved, however, was not repaid to the Wards. With their consent it
was used to discharge a bank obligation owed by Edd Lee, Inc. During 1947 and 1948,
$40,500 was paid by Lee to the Wards upon other obligations, none of which was applied
upon the trust deed in question. The Lees are now divorced and the apartment property has
become Pearl's; hence her interest and concern.
In brief these are the facts which Pearl Lee contends establish that the representations of
the Wards in July, 1945, in reliance upon which she consented to and joined in the trust deed,
were fraudulent; that accordingly their security rights under the trust deed are forfeit; that the
application of the $25,000 to other obligations, in which application the Wards joined, was
knowingly in violation of contract; that her consent to the transaction was conditionally given
and the condition not having been met her consent must be regarded as withdrawn.
[Headnote 1]
The Wards vigorously deny that fraudulent misrepresentations of fact were made. In our
view, however, even assuming that the closing of the escrow was in violation of agreement
and that the representations of the Wards to Pearl with respect to the $25,000 were fraudulent,
no injury was suffered thereby.
During the period within which all of the recited events with respect to the property
occurred, the Lees were husband and wife and all property concerned was community
property. While the misapplication of the escrowed $25,000 may have enriched one portion
of the community to the detriment of another portion, the community as a whole was not
depleted. Pearl Lee suffered no property loss by such misapplication. The value of her interest
in the community as a whole remained precisely the same. The same would be true of the
$40,500 subsequently applied by the Wards to community indebtedness other than that
covered by the trust deed.
[Headnote 2]
Nor do subsequent developments render the conduct of the Wards injurious to Pearl. On
the contrary they conclusively demonstrate that any fraud which might have been committed
was compensated in full; that any injury which might have existed or threatened was
eliminated. In 1946 Edd Lee commenced suit for divorce against Pearl Lee which suit was
not brought on for trial until 194S.
against Pearl Lee which suit was not brought on for trial until 1948. A decree of divorce was
entered in February, 1949, which decree divided the community estate between the parties.
Pearl was given the apartment property. Edd was given the balance of the estate. A full
disclosure of the state of the community was made to the court, including the fact that the
apartment property was encumbered. Such disclosure was made in the greatest detail,
accompanied by an audit and report of a firm of certified public accountants. It was expressly
recognized by the trial court below that the divorce court had knowledge of the Ward
encumbrance and had awarded the apartment property to Pearl with that encumbrance in
mind. No appeal was taken from the divorce decree. No assertion is here made by Pearl that
fraud was committed upon the divorce court or that the decree is subject to collateral attack. It
must be regarded as a final and informed disposition of the community estate. All that Pearl is
then entitled to regard as her share of the community is the equity in the apartment property
awarded to her by decree.
[Headnote 3]
Pearl contends that the elements of breach of contract and fraud redound to the benefit of
this particular piece of property and, in effect, run with it as a connected chose in action. If
this be so it is at the expense of the remainder of the estate and clearly constitutes a
readjustment of the property division contemplated by the divorce court. If such chose in
action in fact and in law could be said to exist, Pearl did not so contend before the divorce
court. No disclosure thereof was made by her to that court and it can hardly be said that the
court's action constituted a tacit award of such right to her. In this light her contention can
hardly be said to provide a basis for the intervention of equity in her behalf in the present
proceeding.
[Headnote 4]
It is argued that the Wards have no right to claim protection from the divorce decree or
an estoppel in their favor thereby; that while Edd Lee was a defendant in the court below,
he has not seen fit to appeal from the judgment and is not a party to this appeal; that in a
controversy confined to a determination of the respective rights and obligations of Pearl
and the Wards, the decree should not be given consideration.
protection from the divorce decree or an estoppel in their favor thereby; that while Edd Lee
was a defendant in the court below, he has not seen fit to appeal from the judgment and is not
a party to this appeal; that in a controversy confined to a determination of the respective
rights and obligations of Pearl and the Wards, the decree should not be given consideration.
We cannot avoid such consideration. It is the decree itself upon which Pearl relies to establish
her right to bring this suit as owner of the property in question. It is the decree which defines
and delineates the extent of her interest and right. It is, moreover, the action taken by the
divorce court which has rendered harmless any improper conduct of the Wards. What fraud
and injury there might conceivably have been were compensated and eliminated by the
informed action taken by the divorce court in the exercise of its discretion in accomplishing
the property division.
The judgment of the trial court is reversed with costs and the case remanded with
instructions that judgment be entered for the defendants.
____________
ROY CRAM, Appellant v. WELLS CARGO, INC., a Corporation, JOE W. WELLS, F. M.
FRANDSEN and NEVADA ROCK AND SAND COMPANY, INC., Respondents.
No. 3714
April 28, 1953. 256 P.2d 96.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge,
Department No. 2.
Action for claim and delivery, wherein defendant counterclaimed for conversion. From a
judgment for plaintiff, defendant appealed. The District Court judgment was affirmed by the
Supreme Court, 70 Nev. 19, 253 P.2d 200. On rehearing, the Supreme Court, Merrill, J., held
that the evidence established that buyer of dirt-moving equipment at foreclosure sale by
assignee of chattel mortgage thereon had improperly taken other items of personal property
not subject to mortgage and hence was liable to owner thereof for value of such property at
time of conversion.
Rehearing granted and matter remanded with instructions.
Taylor and Gubler, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondents Wells Cargo, Inc., a Corporation,
and Joe W. Wells.
G. William Coulthard, of Las Vegas, for Respondents F. M. Frandsen and Nevada Rock
and Sand Company, Inc.
Evidence established that buyer of dirt-moving equipment at foreclosure sale by assignee of chattel
mortgage thereon had improperly taken other items of personal property not subject to mortgage and hence
was liable to owner thereof for value of such property at time of conversion.
2. Costs.
Where judgment was affirmed except to a minor extent, involving portion of appellant's counterclaim
which was allowed on rehearing, costs on appeal were properly awarded to
respondents, but appellant was entitled to have costs upon rehearing assessed
against respondent held liable on counterclaim.
allowed on rehearing, costs on appeal were properly awarded to respondents, but appellant was entitled to
have costs upon rehearing assessed against respondent held liable on counterclaim.
OPINION
On Rehearing
Appellant having properly directed our attention to an oversight in our disposition of this
matter, rehearing was granted upon that point.
The record convincingly shows that when Wells Cargo, Inc. took possession of the five
items of equipment sold to it by Nevada Rock & Sand Company, it also took possession of
certain other items, property of appellant but not included in that sale or covered by the
chattel mortgage asserted by respondents as justification for the taking. These items were
described in appellant's counterclaim as a tank, pump and trailer and spare mechanical parts
consisting of sprockets, chains, belts, bearings, shafts, etc.
[Headnote 1]
There is no dispute as to such taking by Wells Cargo. No authority for the taking appears
in the record. The only issue upon the record is as to the value of the property so taken at the
time of conversion. Appellant places its value at $3,500. Wells Cargo values it at from $310
to $415. It would therefore appear that appellant was entitled to a finding that said property
was improperly taken, to a determination of damages therefor and to judgment in such
amount against Wells Cargo.
It is ordered that this matter be remanded for new trial limited to a determination of
damages for the taking of the specified property and with instructions that judgment be
rendered in favor of appellant and against Wells Cargo, Inc. in the amount so determined.
[Headnote 2]
Save in this respect our decision upon the appeal as filed February 13, 1953 shall stand.
Considering the minor extent to which the appeal concerned itself with the particular point
here considered, our award of costs to respondents shall stand. Appellant shall have his costs
upon this rehearing assessed against respondent Wells Cargo, Inc. As soon as such costs in
due course have been determined, remittitur shall issue forthwith.
____________
70 Nev. 111, 111 (1953) Tomlin v. Morvay
GEORGE O. TOMLIN, Appellant, v. JACQUES MORVAY, Doing Business as Morvay's
Building Supply and John Doe, Respondent.
No. 3725
May 19, 1953. 256 P.2d 1096.
Dept. No. 3.
Action for personal injuries to plaintiff as the result of being struck on the head by a metal
oil tank being ejected from the rear of defendant's truck by the driver thereof. From a
judgment for defendant, plaintiff appealed. The Supreme Court, Eather, C. J., held that the
driver's testimony that two men were required to load the tank onto the truck and that the
witness, who checked plaintiff's position to one side of the truck toward the rear thereof
before making first attempt to eject the tank, did not again check his position before making a
second successful attempt to eject the tank, did not disclose negligence of defendant or the
driver.
Affirmed.
Ernest S. Brown, of Reno, for Appellant.
Griswold, Vargas and Bartlett, of Reno, for Respondent.
1. Automobiles.
In action for injuries to one struck on head by metal oil tank being ejected from rear of defendant's truck
by driver thereof, driver's testimony that two men were required to load tank onto truck did not disclose
defendant's negligence in failing to supply two men for delivery of tank at plaintiff's residence.
2. Automobiles.
In action for injuries to one struck on head by metal oil tank being ejected from rear of defendant's truck
by driver thereof, driver's testimony that after checking plaintiff's position to one side of truck toward rear
thereof before making first attempt to eject tank, he did not again check such position before making
second successful attempt after warning plaintiff not to get behind truck, did not disclose negligence of
driver.
OPINION
This is an action for damages for personal injuries resulting from negligence. Judgment of
the trial court, acting without a jury, was for defendant, and plaintiff has taken this appeal
upon the sole ground that the evidence does not justify the decision and judgment.
The accident involved occurred during the delivery of a 550-gallon metal oil tank to
plaintiff's residence by defendant's delivery truck. The injury to plaintiff resulted from his
being struck on the head as the tank was ejected from the truck by the driver of the truck,
defendant's employee. Plaintiff and the driver were the only witnesses to the events leading
up to the accident. Each in many respects contradicted the testimony of the other.
Plaintiff concedes that in the light of the ground for this appeal, the testimony of the driver
must be accepted by this court; that the sole question involved is whether that testimony itself
discloses negligence on the part of the driver. The driver of the truck, George James Stiller,
called as a witness on behalf of the defendant, testified in part as follows:
Q. Now, did you have occasion, Mr. Stiller, on or about the 1st of April, 1950, to drive
an oil truck out to Mr.
about the 1st of April, 1950, to drive an oil truck out to Mr. George Tomlin's residence? A.
Yes.
Q. What kind of a truck were you driving on that occasion? A. 1942 Dodge pick-up,
half-ton.
Q. That was just a standard half-ton pick-up? A. Yes.
Q. And did you take a tank out there on that truck? A. Yes, sir.
Q. Where did you get the tank? A. Acme Supply.
Q. At about what time of day did you drive it out there? A. It was late in the afternoon,
approximately 4:30, 5 o'clock.
Q. And will you please describe to the Court how that tank was on the truck?
A. The tailgate was out flat, level with the bed of the truck, and the tank just fitting in the
bed, approximately a foot and a half from the cab back, and I imagine it was 14 inches
overhang, over the end of the tailgate.
Q. In other words, there was a space between the forward end of the tank and the back of
the cab? A. Yes.
Q. And the tailgate was down? A. Even with the level of the bed.
Q. And there was some overhang over the tailgate? A. Yes, sir.
Q. And the bottom of that tank rests right down in on the bed of the truck? A. Yes.
Q. What kind of sides did the truck body have on it? A. Oh, approximately 18 inches high
and a four inch slope on top, ordinary pick-up bed.
Q. That is, the top part of the sidewalls extend outward? A. About 4 inches of it, yes.
Q. Now, will you please describe to the Court in your own language, Mr. Stiller, just
exactly what happened from the moment you arrived out at the premises of Mr. Tomlin until
you left? A. Well, when I got there he came out and asked me if I could put the tank around
behind the building. I turned around, backed in the driveway, clear to the back of the house,
and he has dug a sewer line along12, 14 feetbehind the house and I had to back
between the house and the sewer line.
has dug a sewer line along12, 14 feetbehind the house and I had to back between the
house and the sewer line. And as I did that, it was muddy and slick, and the back end slid
over. One hind wheel went in the ditch, the soft dirt. I couldn't go forward or backward. We
decided to unload the tank there.
It was about 14 feet or so from where he wanted it to be unloaded. I got in to push the
tank out. I usually get in between the tank and the cab, put my shoulder against it, and push it
out. When it lands it is supposed to land on the end of the tank. And I pushed on the tank, and
it didn't go out very easy.
He said he was going to help me. I says it wasn't necessary. I could push it myself, not to
get behind it; so the tank would tip up on one end.
I turned around to push the tank. When I pushed it went out very easily. He said it hit him
on the head. It didn't knock him down or anything and he didn't appear to me to be hurt bad.
We turned the tank around, put it up on some blocks there. * * *
Q. Now, when you started first to unload the truck you were in the space between the
front end of the tank and the rear of the cab? A. Yes, sir.
Q. Where was he standing at that time when he asked you if he could help you? A. Beside
the pick-up, approximately the center.
Q. Did you at any time ask him to help you? A. No, sir.
Q. The only thing that was said about helping you was when he asked you if he could
help you, is that right? A. Yes.
Q. You told him it wasn't necessary? A. I told him not to get behind the tank.
Q. You told him not to get behind the tank? A. Yes, sir.
Q. Because when it came out it wouldA. Tip up on end.
Q. tip up on end, and then you went about pushing it again? A. Yes.
Q. Did you actually see it strike him, Mr. Stiller? A. Oh, no, Ino.
Q. The last you saw of him before he was struck was when he was standing by the side of
the fender, as you have said? A. Yes. * * *
Q. Have you had occasion to unload tanks like this one prior? A. Yes.
Q. How did you do that? A. The same way I did this one. Get between the cab and the
truck [tank] and push it out with my shoulder.
It is apparent from the testimony that the driver sought no assistance from plaintiff and
warned plaintiff not to get behind the truck. The bed of the truck was four feet wide and eight
feet long. The tailgate was down and the tank, some ten feet long, projected beyond the
tailgate. The process of unloading consisted in simply pushing the tank off the end of the
truck till its weight tipped the end to the ground. This was the customary method of
unloading. As the tank fitted snugly into the bed and sides of the truck, the driver's first
attempt to dislodge it failed. He then placed himself in a more favorable position between the
forward end of the tank and the back of the cab and was able to push the tank out of the truck.
His last view of plaintiff, but a few moments before, found the plaintiff in the clear, to one
side of the truck, towards the rear end.
[Headnotes 1, 2]
Plaintiff contends that the testimony of the driver discloses negligence on the part of the
defendant or his driver in two respects. First: That since the testimony on cross examination
was to the effect that it took two men to load the tank onto the truck, defendant was negligent
in not supplying two men for the delivery of the tank. We cannot regard this as negligence.
Plaintiff has not suggested what function the second man would perform other than to keep
bystanders out of the way. The driver's warning should have been sufficient to have served
this purpose. Second: That while the driver had checked the position of plaintiff before
making his first attempt to eject the tank, he did not again check that position before
making his second and successful attempt.
driver had checked the position of plaintiff before making his first attempt to eject the tank,
he did not again check that position before making his second and successful attempt. This
we cannot regard as negligence. The warning having been given, it was entirely reasonable
for the driver to suppose that it would be respected and that the position of plaintiff would
remain unchanged.
Upon the testimony of the driver one can only conclude that the plaintiff deliberately
disregarded the given warning and voluntarily placed himself in a position of known danger
contrary to the wishes and advice of the driver. We find no negligence on the part of
defendant or his driver upon this state of facts.
____________
70 Nev. 116, 116 (1953) State Ex Rel. Mathews v. Murray
THE STATE OF NEVADA, on Relation of W. T. MATHEWS, Attorney General of Said
State, Plaintiff, v. JOHN H. MURRAY, Defendant.
No. 3752
June 15, 1953. 258 P.2d 982.
(On motion to dismiss, June 29, 1953)
Original action in the nature of quo warranto to oust defendant from the position of
director of the drivers' license division of the public service commission. On defendant's
motion to dismiss the action after the granting of plaintiff's motion to strike supplemental
matters in support of the motion to dismiss and denial of defendant's motions for summary
judgment and an order nunc pro tunc permitting him to file the supplementary matters as of
the date of service and filing of the motion to dismiss, the Supreme Court, Merrill, J., held
that the position was not a public office so that quo warranto did not lie to test the propriety
of defendant's holding thereof.
warranto did not lie to test the propriety of defendant's holding thereof.
Action dismissed.
W. T. Mathews, Attorney General, Geo. P. Annand, Wm. N. Dunseath, and John W.
Barrett, Deputy Attorneys General, for Plaintiff.
John R. Ross, of Carson City, for Defendant.
1. Judgment; Quo Warranto.
In original proceeding in nature of quo warranto to oust defendant from position of director of drivers'
license division of public service commission, neither defendant's attempted supplemental support of his
motion to dismiss complaint as presenting moot question by filing photostat copy of his purported
resignation as state senator to governor and affidavit of commission chairman that defendant's duties were
administerial only and not official, nor tardy presentation of defendant's motions during oral argument for
summary judgment based on such matters and nunc pro tunc order permitting him to file supplementary
matters as of date of service and filing of motion to dismiss, was justified. N.C.L.1943-1949 Supp., secs.
4435.45 et seq., 4435.54; Rules of Civil Procedure, Rules 6(d), 12(b), 56.
On Motion to Dismiss.
2. Quo Warranto.
Quo warranto lies only for usurping of public office, not merely function or employment of deputy or
servant of another.
3. Officers.
A public office is distinguishable from other forms of employment in that its holder is invested with
some portion of sovereign functions of government by sovereign.
4. Officers.
An office is brought into existence either under terms of Constitution, by legislative enactment, or by
some municipal body pursuant to authority delegated to it.
5. Officers.
All public offices must originally have been created by sovereign as foundation of government.
6. Officers.
A public office is right, authority and duty conferred by law, whereby an individual is invested for
given period, fixed by law or through pleasure of creating power of government, with some portion of
sovereign functions of government to be exercised by him for public benefit.
7. Quo Warranto.
To constitute public office, against incumbent of which quo warranto will lie, certain independent
public duties constituting part of state's sovereignty must be appointed to office by law, to be exercised by
incumbent in virtue of his election or appointment to office and not as mere employee subject to direction
and control of someone else.
8. Officers.
The fact that public employment is held by employee as deputy or servant at will or pleasure of another
distinguishes mere employment from public office, and no part of state's sovereignty is delegated to such
employee.
9. Quo Warranto.
The position of director of drivers' license division of state public service commission is not a public
office, as it has not been created, nor duties attaching thereto prescribed, by law, and holder thereof is not
independent in his exercise of such duties nor invested with any portion of sovereign functions of
government, so that quo warranto does not lie to test propriety of his holding of such position.
N.C.L.1931-1941 Supp., secs. 4442 et seq., 4442.05, 4442.25; N.C.L.1943-1949 Supp., secs. 4435.47,
4435.54.
OPINION
On Motion to Strike Supplemental
Affidavit, Etc.
Per Curiam:
Original complaint in the nature of quo warranto. Defendant filed a motion to dismiss
which was argued and submitted to this court May 25, 1953, subject to the filing of further
briefs. Thereafter defendant, in support of his motion to dismiss upon the ground that the
matter had become moot, filed a photostat copy of a purported resignation as state senator, to
the governor. This was in response to plaintiff's argument that the asserted resignation made
to the county commissioners was not a resignation under our statutes. Defendant also filed the
affidavit of Robert A. Allen, as chairman of the public service commission and, as such, the
administrator of the drivers license division thereof, purporting to show that the defendant's
duties as director of the drivers license division were administerial only and not official
functions. N.C.L., sec. 4435.45 et seq., sec. 4435.54, 1943-1949 Supp.
[Headnote 1]
The matter is before us on plaintiff's motion to strike the supplemental matters upon the
ground that they were not filed with leave of court, that they were fugitive documents, and
that, not having been submitted with the motion to dismiss (Rule 6(d)), [Nevada Rules of
Civil Procedure], they have presently no standing. During the course of the oral argument
defendant made four requests or motions to the court: (1) that under Rule 12(b) defendant's
motion to dismiss be deemed a motion for summary judgment under Rule 56; (2) that
defendant be permitted then and there to make his oral motion for summary judgment based
upon the said supplemental matters; (3) that he be permitted to file a written motion for
summary judgment; (4) for an order nunc pro tunc permitting him to file the supplementary
matters as of the date of the service and filing of his motion to dismiss. Said supplementary
matters were all known to defendant when he filed his motion to dismiss. Without prejudice
to any action the court may be disposed to take with reference to the various matters that now
are or may hereafter be submitted under the motion to dismiss or upon other pleadings that
may be filed herein, we see no justification either for the attempted supplemental support of
the motion to dismiss or the tardy presentation of the defendant's sundry motions above
referred to.
The motion to strike the supplemental matters in support of the motion to dismiss is
hereby granted. Defendant's various motions above referred to (but not including his motion
to dismiss) are hereby denied.
OPINION
On Motion to Dismiss
This is an original proceeding by complaint and information in the nature of a quo
warranto. It challenges the right of defendant to hold the position of director of the drivers
license division of the public service commission of Nevada.
of the drivers license division of the public service commission of Nevada. The proceedings
are now before us on defendant's motion to dismiss the action.
The sole basis of the state's complaint is that at the time defendant accepted the position of
director he was serving as state senator from Eureka county. It is the state's position that this
is in violation of section 1, article III of the constitution of this state (sec. 51, N.C.L.1929)
providing for the division of the powers of government.
Defendant's motion to dismiss is based upon his contention that quo warranto may not lie
to determine his right to fill the position in question for the reason that that position is not a
public office. Section 9203, N.C.L.1929, dealing with quo warranto, provides in pertinent
part as follows: A civil action may be brought in the name of the state: 1. Against a person
who usurps, intrudes into, or unlawfully holds or exercises, a public office, * * *.
[Headnote 2]
It is clear that quo warranto will lie only for the usurping of a public office * * * and not
merely the function or employment of a deputy or servant of another. State ex rel. Ryan v.
Cronan, 23 Nev. 437, 444, 49 P. 41, 42. To the same effect: State v. Glenn, 9
W.W.Harr.(Del.) 584, 4 A.2d 366; State v. Page, 98 Mont. 14, 37 P.2d 575; State v.
Fernandez, 40 N.M. 288, 58 P.2d 1197; See: 74 C.J.S. 188 (Quo Warranto, sec. 8). The
question, then, is whether the position of director of the drivers license division is a public
office. The state's complaint so characterizes it.
[Headnote 3]
The nature of a public office as distinguished from mere employment is the subject of a
considerable body of authority, and many criteria of determination are suggested by the
courts. See Ann.: 53 A.L.R. 595, 93 A.L.R. 333, 140 A.L.R. 1076. Upon one point at least the
authorities uniformly appear to concur. A public office is distinguishable from other forms
of employment in that its holder has by the sovereign been invested with some portion of
the sovereign functions of government.
office is distinguishable from other forms of employment in that its holder has by the
sovereign been invested with some portion of the sovereign functions of government.
[Headnotes 4-6]
In State ex rel. Kendall v. Cole, 38 Nev. 215, 219, 148 P. 551, 552, this court stated: An
office does not spring into existence spontaneously. It is brought into existence, either under
the terms of the constitution, by legislative enactment, or by some municipal body, pursuant
to authority delegated to it. All public offices must originally have been created by the
sovereign as the foundation of government.' (3 Cruise's Dig., p. 109, sec. 5.) In that opinion
this court, in definition of a public office, quoted Wyman on Public Offices, sec. 44, as
follows: The right, authority and duty conferred by law by which, for a given period, either
fixed by law or through the pleasure of the creating power of government, an individual is
invested with some portion of the sovereign functions of the government, to be exercised by
him for the benefit of the public. The warrant to exercise powers is conferred, not by contract,
but by law.
[Headnotes 7, 8]
In La Polla v. Davis (Ohio Com. Pl., 1948), 89 N.E. 2d 706, 708, it is stated: Fifty years
ago our Supreme Court in State ex rel. Attorney General v. Jennings, 57 Ohio St. 415, 49
N.E. 404, 63 Am.St.Rep. 723, laid down this rule, which has been applied in many cases
since: To constitute a public office, against the incumbent of which quo warranto will lie, it
is essential that certain independent public duties, a part of the sovereignty of the state, should
be appointed to it by law, to be exercised by the incumbent in virtue of his election or
appointment to the office thus created and defined, and not as a mere employee, subject to the
direction and control of some one else.' The Court said further, * * * The fact that a public
employment is held at the will or pleasure of another, as a deputy or servant, who holds at the
will of his principal, is held * * * to distinguish a mere employment from a public office;
for in such cases no part of the state's sovereignty is delegated to such employees.'" To
the same effect are State ex rel.
at the will of his principal, is held * * * to distinguish a mere employment from a public
office; for in such cases no part of the state's sovereignty is delegated to such employees.' To
the same effect are State ex rel. Barney v. Hawkins, 79 Mont. 506, 257 P. 411, 53 A.L.R.
583; and State v. Fernandez, supra, in both of which a full and careful study of the authorities
is given. See also: 67 C.J.S. 97 (Offices, sec. 2); 42 Am.Jur. 881 (Public Offices, sec. 3);
Mecham on Public Offices, secs. 1, 4.
[Headnote 9]
We look, then, to the pertinent legislation which is conceded to be the uniform motor
vehicle operators' and chauffeurs' license act (sec. 4442, N.C.L.1929, 1931-1941 Supp., et
seq.) enacted in 1941. Under this act specified duties and authority relative to the issuance of
drivers' licenses were placed in the hands of a department under the head of an
administrator. Section 6 of the act (sec. 4442.05, N.C.L.) provides among definitions: (a)
Administrator; the administrator is the state highway engineer of this state. (b) Department;
the state highway department of this state acting directly or through its duly authorized
officers and agents. Section 26 of the act (sec. 4442.25, N.C.L.) provides: The
administrator is authorized to employ examiners, deputies and such other help as may be
necessary to carry out the provisions of this act, also to provide suitable office
accommodations and to promulgate rules and regulations governing activities of the
department hereunder. In 1949 the functions and duties provided by the act were transferred
from the state highway department to the public service commission of Nevada (sec. 4435.47,
N.C.L.1929, 1943-1949 Supp.) and that commission was authorized to employ all necessary
office personnel for the purposes of this act and to fix the compensation thereof. (Sec.
4435.54, N.C.L.)
Nowhere in either act is any reference made to the drivers license division of the
department or to a director thereof.
director thereof. Nowhere are duties imposed or authority granted save to the department and
to its administrator. It appears clear that the position of director was created not by the act but
by the administrator and may as easily by him be discontinued or destroyed. It appears clear
that the duties of the position are fixed not by law but by the administrator and may as easily
by him be modified from time to time. No tenure attaches to the position save as may be fixed
from time to time by the administrator. The director, then, is wholly subordinate and
responsible to the administrator. It cannot, then, be said that that position has been created by
law; or that the duties which attach to it have been prescribed by law; or that, subject only to
the provisions of law the holder of such position is independent in his exercise of such duties.
It cannot, then, be said that he has been invested with any portion of the sovereign functions
of the government.
As was stated in People ex rel. Throop v. Langdon, 40 Mich. 673: We find * * * no
evidence that an office known as chief clerk in the office of the assessor * * * has been
created. A person has been appointed, and has acted under the designation of chief clerk, but
no statute or ordinance has given him that title, and if he were now to be called and to style
himself in the discharge of his duties head clerk, or leading clerk, or assistant to the assessor,
or assessor's amanuensis, it would, for aught we can discover, be equally well, for nothing
whatever depends upon the name. * * * Nor do the duties usually performed by the chief
clerk indicate an office rather than an employment. * * * He is still wholly subordinate to the
assessor, having no independent functions. * * * The duties, such as they are, can be changed
at the will of the superior, since no rule of law or well defined custom forbids it.
The state asserts that since the record now before this court does not contain any showing
as to the nature of the duties which now attach to the position, we cannot at this stage of the
proceedings determine that the position is not an office.
this stage of the proceedings determine that the position is not an office. For the reasons
discussed, however, it is apparent that the specific character of those duties cannot affect our
decision. Regardless of the extent of responsibility which at any given time might be
delegated by the administrator to the defendant, the functions of sovereignty which are
involved continue to repose in the administrator to whom they have been assigned by
sovereign act.
We conclude that the position of director of the drivers license division of the public
service commission of Nevada is not a public office; that quo warranto does not, therefore, lie
to test the propriety of defendant's holding of that position; that the motion to dismiss the
action, accordingly, must be granted.
Defendant in his motion to dismiss has also suggested that the action has now become
moot by virtue of his having resigned from the office of state senator. The suggestion is
opposed by the state. In the light of our opinion as expressed no decision need be made upon
this point.
Action dismissed.
____________
70 Nev. 125, 125 (1953) Reno Club v. Harrah Et Al.
RENO CLUB, INCORPORATED, a Corporation, Appellant, v. WILLIAM F. HARRAH,
RALPH D. AUSTIN and VIRGIL T. SMITH, Respondents.
No. 3730
August 17, 1953. 260 P.2d 304.
Dept. No. 2.
Action for damages for wrongful detention of real estate and personal property. Judgment
was entered on one portion of the claim for plaintiff and for defendant on remaining portion,
and plaintiff appealed. The Supreme Court, Merrill, J., held that the plaintiff's claim involving
personal property was not barred by a former suit which related to plaintiff's right to
possession of the real estate and which barred the instant action for damages for wrongful
detention of real estate, where the issue of wrongful detention of personal property had not
been placed in issue or litigated in the prior suit.
Affirmed in part, reversed in part, and remanded for limited new trial.
Sidney W. Robinson and M. A. Diskin, of Reno, for Appellant.
Summerfield and Heward, of Reno, for Respondents.
1. Action.
A single cause of action or entire claim or demand cannot be split up or divided and separate suits
maintained for the various parts thereof.
2. Judgment.
The true test of identity of causes of action, as that term is used in connection with plea of former
adjudication, is identity of facts essential to their maintenance, and the identity of causes of action may
appear from evidence in the two cases as well as from the pleadings, and when same evidence supports
both present and former cause of action, the two causes are identical.
3. Judgment.
Wrongful failure to surrender title to or possession of realty gives rise to single cause of action regardless
of fact that performance, delivery of possession or damages may be included among available
remedies, and a suit to recover possession or title is a bar to subsequent action for
damages for wrongful detention or failure to perform although damages were not
sought in former suit.
among available remedies, and a suit to recover possession or title is a bar to subsequent action for
damages for wrongful detention or failure to perform although damages were not sought in former suit.
4. Judgment.
Where plaintiff had recovered possession of land from defendant in action against defendant's lessor in
which defendant was made a party and plaintiff had not raised issue as to right to damages for wrongful
detention of possession, plaintiff waived his right to damages and could not assert claim in subsequent
action, since there was but one single indivisible cause of action involved.
5. Judgment.
Judgment for plaintiff in prior action for possession of real property did not bar action for wrongful
detention of personalty where the issue of wrongful detention of personal property had not been placed in
issue or litigated in the prior suit, even though the causes of action might have been joined in a single suit.
N.C.L.1931-1941 Supp., sec. 8595.
OPINION
This is an action brought by the Reno Club as plaintiff to recover damages for wrongful
detention by Harrah of real estate and personal property. Judgment in favor of Reno Club was
rendered by the trial court upon one portion of its claim. Upon the remaining portion
judgment was rendered in favor of Harrah. From the latter adverse portion of the judgment
Reno Club has taken this appeal.
The principal defense of Harrah upon which the trial court relied in denying relief to Reno
Club was res judicata: that recovery by Reno Club in an earlier suit barred recovery in the
present action; that the assertion of its cause of action here constituted an attempt to split an
indivisible cause of action. An examination of the earlier litigation therefore becomes
necessary.
In 1942 Reno Club held a lease extending until 1948 upon certain business premises in
Reno from the owner of those premises, Young Investment Company. For certain reasons it
became apparent that during the then state of war Reno Club would be unable to continue in
its business.
state of war Reno Club would be unable to continue in its business. An agreement was
reached whereby it surrendered its lease and possession of the premises subject to an option
to have the lease reinstated at any time after one year from the date of the option. The
premises were then leased by Young to Harrah for a term of one year, occupancy thereafter to
be from month to month.
In March, 1946, Reno Club notified Young of its exercise of the option and demanded a
lease to the premises for the balance of the original lease period. Young served notice on
Harrah to vacate the premises on June 15, 1946, which Harrah failed and refused to do.
Young, accordingly, failed to comply with Reno Club's demand. In August, 1946, Reno Club
brought suit against Young for specific performance of the option.
In answer to the complaint of Reno Club, Young asserted two defenses: (1) that the option
was prematurely exercised and that Reno Club accordingly had no right at that time to
reinstatement of the lease; (2) that Harrah was rightfully in possession and with consent of
Reno Club; that in effect, therefore, Reno Club was already in possession through its
nominee, Harrah; that a granting of specific performance would be inequitable, unfair and
unjust to an innocent third person, namely Harrah.
Reno Club then moved the court to have Harrah made a party defendant and an order was
made that Harrah be brought in as defendant for the reason that a complete determination of
this controversy cannot be had without [his] presence. Harrah then appeared, asserting by his
answer the same defenses to Reno Club's complaint as had been asserted by Young.
Reno Club replied to Harrah's answer, praying in part for judgment that plaintiff be let
into immediate possession of the premises described in plaintiff's amended complaint. That it
be adjudged and decreed that William Harrah has no right, title or interest in or to the
possession of said premises or any part thereof.
that William Harrah has no right, title or interest in or to the possession of said premises or
any part thereof. That William Harrah be by judgment of this court commanded to
immediately surrender possession of said premises to plaintiff. There was no prayer for
damages nor was any evidence of damage presented during the trial. Damage simply was not
an issue in the suit.
After two appeals to this court (Reno Club v. Young Investment Co., 64 Nev. 312, 182
P.2d 1011, 173 A.L.R. 1145; Young Investment Co. v. Reno Club, 66 Nev. 216, 208 P.2d
297) Reno Club prevailed in its suit. Judgment was rendered against Young that it execute
and deliver the lease demanded by Reno Club. Judgment was rendered against Harrah to the
effect that he had no right, title or interest in or to the premises; that Reno Club recover
possession from him and that he forthwith surrender possession to Reno Club. This decree
Harrah has performed. Reno Club's claim against him in that suit, accordingly, has been
satisfied. Judgment was rendered March 3, 1948. Harrah did not surrender possession until
October 26, 1948. During the interim the second appeal was taken to this court and Harrah
remained in possession under supersedeas bond.
In the instant case the trial court has granted to Reno Club damages for wrongful detention
for the period from March 3, 1948, to October 26, 1948, and has denied relief for the period
from June 15, 1946, to March 3, 1948. The question before us is whether the earlier suit,
having proceeded to judgment and satisfaction, constitutes a bar to the present action under
the principles of res judicata and the rule against splitting of causes of action. Under our
statutes, claims for the recovery of specific real or personal property and for damages for the
withholding thereof may be joined. Sec. 8595, N.C.L.1929, Supp. 1931-1941 (since
superseded by Nevada Rules of Civil Procedure).
[Headnote 1]
At the outset it must be recognized that the extent of the bar by earlier adjudication
differs under two types of cases.
the bar by earlier adjudication differs under two types of cases. In the first type of case the
earlier judgment is offered as determining one particular point involved in the second
litigation by what is termed collateral estoppel. See: Restatement of the Law, Judgments, sec.
68. In this type of case it is immaterial that the causes of action in the two suits are different.
McLeod v. Lee, 17 Nev. 103, 28 P. 124; Vickers v. Vickers, 45 Nev. 274, 284, 199 P. 76, 202
P. 31. It is essential, however, that the particular point involved actually constitute an issue in
both suits. Sherman v. Dilley, 3 Nev. 21. In the second type of case the earlier judgment is
offered as a bar to the entire action upon the ground that a determination of the identical
controversy previously had been had between the parties. In this type of case it is essential
that the causes of action be identical. The prior judgment, however, operates as a bar not
only as to every matter which was offered and received to sustain or defeat the claim, but as
to every other matter which might, with propriety, have been litigated. Wolford v. Wolford,
65 Nev. 710, 714, 200 P.2d 988, 990; Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195;
comment note, 88 A.L.R. 574. This principle of res judicata has also found expression in the
rule against splitting of causes of action, to the effect that a single cause of action or entire
claim or demand cannot be split up or divided and separate suits maintained for the various
parts thereof, * * *. 1 C.J.S. 1306 (sec. 102 Actions). See: Restatement of the Law,
Judgments, sec. 62.
It is clear that the question of damages now before us was not litigated in the earlier suit
between the parties and did not constitute an issue in that suit. The question therefore resolves
itself to this: Is the cause of action (as that term is used in connection with the plea of res
judicata) upon which the present action is based the identical cause of action which formed
the basis of the former suit? In Bond v. Thruston, 60 Nev. 19, 24
In Bond v. Thruston, 60 Nev. 19, 24, 98 P.2d 343, 345, 100 P.2d 74, this court, in dealing
with the elements constituting a cause of action, quoted Pomeroy's Code Remedies as
follows: The cause of action, as it appears in the complaint when properly pleaded, will
therefore always be the facts from which the plaintiff's primary right and the defendant's
corresponding primary duty have arisen, together with the facts which constitute the
defendant's delict or act of wrong. * * * If the facts alleged show one primary right of the
plaintiff, and one wrong done by the defendant which involves that right, the plaintiff has
stated but a single cause of action, no matter how many forms and kinds of relief he may
claim that he is entitled to, and may ask to recover; the relief is no part of the cause of
action.
[Headnote 2]
In Silverman v. Silverman, 52 Nev. 152, 169, 283 P. 593, 598, this court stated, The true
test of the identity of causes of action,' as that term is used in connection with the plea of
former adjudication, is the identity of the facts essential to their maintenance. The identity of
the causes of action may appear from evidence in the two cases as well as from the pleadings.
The authorities agree that when the same evidence supports both the present and the former
cause of action, the two causes of action are identical. Followed in Miller v. Miller, 54 Nev.
44, 52, 3 P.2d 1069, 6 P.2d 1117, 11 P.2d 1088; See: Restatement of the Law, Judgments,
sec. 61; Cf. Cleary, Res Judicata Reexamined, 57 Yale L.J. 339; Developments In The
LawRes Judicata; 65 Harvard L.R. 818; Res Judicata In California, 40 Calif. L.R. 412.
In applying these definitions to the case at bar we feel it necessary to discuss separately the
questions of damage for wrongful detention of the realty and for use of the personalty. We
shall deal first with the realty.
[Headnote 3]
Wrongful failure to surrender title to or possession of realty is held to give rise to a single
cause of action regardless of the fact that performance, delivery of possession or damages
may be included among the remedies available.
regardless of the fact that performance, delivery of possession or damages may be included
among the remedies available. Miller v. Dyer, 20 Cal.2d 526, 127 P.2d 901, 141 A.L.R. 1428.
Accordingly a suit to recover possession or title is held to bar a subsequent action for
damages either for wrongful detention or in connection with failure to perform where such
damages were not sought in the former suit. Alexander v. Letson, 242 Ala. 488, 7 So.2d 33;
Abbott v. 76 Land and Water Co., 161 Cal. 42, 59, 118 P. 425; McCaffrey v. Wiley, 103
Cal.App.2d 621, 230 P.2d 152; Walzl v. King, 113 Md. 550, 77 A. 1117; Canning v. Shipee,
246 Mass. 338, 141 N.E. 79; Thompson v. Myrick, 24 Minn. 4; Head v. Meloney, 111 Pa. St.
99, 2 A. 195.
It is insisted by Reno Club that the primary right involved in the former suit was its right
to specific performance by Young; that this was the extent of the relief sought by its
complaint; that the controversy was limited to its right in this regard; that Harrah was brought
in purely for the purpose of enabling the court to determine that issue; that damages against
Harrah were in no respect germane to that issue.
[Headnote 4]
This view of the former controversy is, we feel, entirely too narrow. It is tantamount to a
contention that no cause of action against Harrah was involved in that controversy and that
the controversy was limited by the allegations of the complaint against Young; which
contention was disposed of by this court in the former suit. Young Investment Co. v. Reno
Club, supra. When Harrah was made party defendant to that suit the scope of the controversy
was extended to include a determination of his own rights. By this action it was recognized
that the extended scope of the controversy was its true and proper scope; that action taken
upon anything less could not constitute a complete or proper disposition. Harrah's rights,
then, were in jeopardy of court determination to the same extent as were Young's; to the
same extent as though he originally had been named defendant.
Young's; to the same extent as though he originally had been named defendant. Indeed, under
strict common law practice, Reno Club would have been compelled to abandon suit and
commence anew, naming Harrah as party defendant. See: 39 Am.Jur. 954 (Parties, sec. 84.) It
is the cause of action against Harrah and not the cause of action against Young with which we
are here concerned.
In that regard the primary right of Reno Club was its right to possession of the premises;
the primary duty of Harrah was his duty to surrender possession and his delict or act of wrong
was his refusal to do so. The facts from which these matters arose constituted the cause of
action in the former suit. It is clear that the same right, duty and delict, supported by the same
facts give rise to Reno Club's present claim for damages. It is not, then, a new cause of action
which is presented in the present action, but a new remedy which is sought.
Reno Club points out that by the decision of this court in Young Investment Co. v. Reno
Club, supra, it was held not necessary under our statutes that the complaint against Young be
amended to state a cause of action against Harrah. Reno Club's difficulty, however, is not
through failure to state a cause of action in the former suit, but through failure in that suit to
seek its full remedy. If this could be done only through an amended complaint, then
amendment would have been the proper course. It does not follow since amendment of the
complaint is not required by statute, that such amendment could not be had.
We conclude that Reno Club's action for damages for wrongful detention of the realty is
barred by the former adjudication. In this respect the judgment of the trial court is affirmed.
[Headnote 5]
With reference to the personal property the record shows that upon its surrendering
possession to Young in 1942, Reno Club owned certain fixtures and furnishings located
upon the premises.
ings located upon the premises. By agreement these remained and were used by Harrah upon
his taking possession, Reno Club receiving from Harrah the sum of $300 a month for their
use from 1942 throughout 1946. From the first of 1947 to October 26, 1948, Harrah
continued to use the personal property without payment of rental therefor. Rental was allowed
by the trial court from March 3, 1948, to October 26, 1948. Rental or damages for the prior
period was denied upon the ground that recovery was barred by the former adjudication. In
this respect we feel that the court was in error.
Reno Club's cause of action in the former suit related to its right to possession of a specific
piece of real property. Its right to rental for the personal property is based upon its ownership
thereof and the use thereof by Harrah. In no respect was its right in this respect dependent
upon its right to possession of the realty. Harrah might rightfully have been in possession of
the realty without in the slightest affecting Reno Club's right to rental for the use of the
personalty. That the causes of action might have been joined in a single suit does not bring
the case within the bar of res judicata. The causes of action are different and since the point
was not actually litigated or placed in issue in the earlier suit, that adjudication is no bar.
Gulling v. Washoe County Bank, 29 Nev. 257, 89 P. 25; McIntosh v. Knox, 40 Nev. 403, 165
P. 337; Weisheyer v. Weisheyer, 54 Nev. 76, 6 P.2d 439; Wolford v. Wolford, 65 Nev. 710,
200 P.2d 988.
The trial court has found that reasonable rental for the use of the personalty from March 3,
1948, to October 26, 1948 was $50 a month. Additional considerations, however, may well
enter into a determination of damages for the earlier period and we cannot say as matter of
law that that rental should there apply. Our only course is to remand for a limited new trial.
The judgment of the trial court upon this cause of action is hereby reversed and the
matter is ordered remanded for a new trial limited to a determination of damages for the
use of the personal property from January 1, 1947, to March 3, 194S.
action is hereby reversed and the matter is ordered remanded for a new trial limited to a
determination of damages for the use of the personal property from January 1, 1947, to March
3, 1948. No costs are awarded.
____________
70 Nev. 134, 134 (1953) State v. Lauritzen
STATE OF NEVADA, on the Relation of Leroy Casady, Lee Maestretti and Francis Escobar,
Relators and Petitioners, v. EDWIN T. LAURITZEN, CHARLES L. CALDWELL and
GEORGE A. McGUINNESS Constituting the Board of County Commissioners of Lander
County, Nevada, Respondents.
No. 3767
September 9, 1953. 260 P.2d 783.
Original proceeding in certiorari to review action of Board of County Commissioners in
calling a special election to determine location of county seat. On motion to quash writ of
certiorari, the Supreme Court held that Board of County Commissioners in determining that
required number of taxpaying electors had petitioned for the holding of such election and in
calling election, acted ministerially and not judicially, and that hence certiorari would not lie
to review action of board in calling election.
Writ of certiorari quashed and proceeding dismissed.
See also, 70 Nev. 136, 261 P.2d 145.
Ernest S. Brown, of Reno, for Relators and Petitioners.
John F. Sexton, District Attorney, Lander County, and Castle & Puccinelli, of Elko, for
Respondents.
Counties.
Board of County Commissioners in determining that required number of taxpaying electors had
petitioned for holding of special election to determine location of county seat and in calling such election
acted ministerially and not judicially, and hence certiorari would not lie to review action of board in
calling special election. N.C.L.1929, secs. 1924-1928.
OPINION
Per Curiam:
This is an original proceeding in certiorari to review action of the Board of County
Commissioners of Lander County in calling a special election to determine the location of the
county seat of that county. A writ of certiorari upon petition of the relators was issued by this
court July 24, 1953. The answer of the respondents challenges the propriety of the writ. In our
view their position is well taken and the writ must be quashed.
Relators contend that the board exceeded its statutory authority to call the election in two
respects: first, that an insufficient number of taxpaying electors had petitioned for the holding
of the election; second, that the election was not called within the time prescribed by law.
Pertinent statutory provisions are contained in an act providing for the removal of county
seats and permanent location of the same, enacted in 1877, secs. 1924-1928, N.C.L.1929.
While grave questions are thus raised reflecting upon the validity of the action taken by the
board and upon any election which might be based thereon, in our view the case of State ex
rel. Kaufman v. Martin, 31 Nev. 493, 103 P. 840, is controlling. Considering the same statute
here confronting us (the pertinent provisions of which are there set forth) this court there
clearly held that a board of county commissioners in determining the number of petitioning
taxpayer electors and in calling an election under the statute, acted ministerially and not
judicially. Under these circumstances, as this court repeatedly has held, certiorari will not lie
to review the action of respondents.
action of respondents. In re Rourke 13 Nev. 253; State ex rel. Esmeralda County v. Dist.
Court, 18 Nev. 438, 5 P. 64; State ex rel. Thompson v. Board of Commissioners of Washoe
County, 23 Nev. 247, 45 P. 529; State ex rel. Fletcher v. Osburn, 24 Nev. 187, 51 P. 837;
Southern Development Company v. Douglass, 26 Nev. 50, 63 P. 38; State ex rel. Murphy v.
White Pine County, 31 Nev. 113, 101 P. 104; Degiovanni v. Public Service Commission, 45
Nev. 74, 197 P. 582; State ex rel. Fall v. Kelso, 46 Nev. 128, 208 P. 424.
Effective as of this date it is ordered that the writ of certiorari heretofore issued in this
matter be and the same hereby is quashed and set aside and these proceedings dismissed.
Dated: September 9, 1953.
____________
70 Nev. 136, 136 (1953) Lauritzen v. Casady
EDWIN T. LAURITZEN, CHARLES L. CALDWELL and GEORGE A. McGUINNESS,
Constituting The Board of County Commissioners of Lander County, State of Nevada,
Appellants, v. LEROY CASADY, LEE MAESTRETTI, and FRANCIS ESCOBAR,
Respondents.
No. 3773
September 14, 1953. 261 P.2d 145.
Appeal from the Third Judicial District Court, Lander County; Taylor H. Wines, Presiding
Judge, granting a permanent injunction against the holding of an election to vote upon a
proposed change of the county seat.
From a judgment for plaintiffs, defendants appealed. The Supreme Court, per curiam, held
that the county commissioners' order calling the election for a date beyond the sixty-day
period permitted by statute was invalid, though the registration requirements of the general
election laws could not be complied with in time for an election within such period.
Affirmed.
See also, 70 Nev. 134, 260 P.2d 783.
D. A. Castle and Leo Puccinelli, both of Elko, and John Sexton, of Battle Mountain,
District Attorney of Lander County, for Appellants.
Ernest S. Brown, of Reno, for Respondents.
1. Counties.
County Commissioners' order, calling county seat removal election for date beyond sixty-day period
permitted by statute, was invalid, though registration requirements of general election laws could not be
complied with in time for election within such period. N.C.L.1929, secs. 1924-1928.
2. Courts.
Under stare decisis rule, a supreme court decision of 1870, invalidating call of county seat removal
election for time beyond period permitted by statute, though registration requirements of general election
laws could not be complied with in time for election within such period, cannot be overruled by supreme
court, in absence of subsequent statute remedying such situation. N.C.L.1929, secs. 1924-1928.
3. Counties.
The 1939 amendment to election laws, providing that all acts and parts of acts in conflict with the
provisions of this act are hereby repealed, did not expressly repeal requirements of county seat removal
act as to time for removal election. N.C.L.1929, secs. 1924-1928; N.C.L.1931-1941 Supp., sec. 2389.
4. Injunction.
An injunction lies to restrain county commissioners from holding county seat removal election, called by
them for date beyond sixty-day period permitted by statute, as against contentions that no irreparable injury
has been shown and that purpose of such election is purely political, as distinguished from elections
involving property rights or causing monetary damage, since case involves not only expense of election,
but possible expenditure of large sums in removing county seat. N.C.L.1929, secs. 1924-1928.
OPINION
Per Curiam:
The county commissioners of Lander county, defendants and appellants herein, on the
petition of taxpaying electors of Lander county called an election for September 15, 1953
under the provisions of secs. 1924 to 1928, inclusive, N.C.L.1929, An Act providing for the
removal of county-seats and permanent location of the same, approved March 2, 1S77
{Stats.
approved March 2, 1877 (Stats. 1877, 139), to determine the question of changing the county
seat from Austin in that county to Battle Mountain in the same county. The district court
entered its final judgment at the suit of plaintiffs and respondents herein, enjoining and
restraining appellants from holding said election, and the appeal and record on appeal from
such judgment were lodged in this court on this date, and the appeal argued and submitted on
the same date, September 14, 1953. The election as noted, was called for tomorrow,
September 15, 1953.
[Headnotes 1, 2]
The Board of County Commissioners in ordering the election for September 15, 1953
failed to call an election within sixty days as required by the statute. This they justified by the
further requirements of the statute that the election be conducted in all respects as provided
for by the general election laws of this state, whose requirements for opening of the
registration books and closing of registration and notice thereof, etc., could not be complied
with by an election held within the sixty-day requirement of the act of 1877.
Respondents contend that affirmance of the injunction restraining the election must be had
under authority of State ex rel. Hess v. The County Commissioners of Washoe County, 6
Nev. 104 (reprint 5-6-7 Nev. 444). Both the facts and the law of that case are in all respects
similar to those here involved. There, as here, the requirements of the respective acts of the
legislature were found to be irreconcilable but the calling of an election beyond the period
permitted by the statute was held to be fatal and the remedy to be within the province of the
legislature alone. Although the statute before the court in the Hess case, decided in 1870, was
the earlier statute of 1867, the amended statute of 1877 was passed, without remedying the
situation, although seven years had elapsed since this court had said in the Hess case:
It is said that under such construction the act referred to [the county seat removal act] is
a nullity, as the election law prescribes registry as a prerequisite to voting, and the
registry law in all cases of special election allows forty days for registering, and ten days
thereafter for objections to be heard and determined, and registry copies for officers of
election to be made; so that fifty full days must elapse from the opening of the registry to
the day of election, thus rendering it an impossibility to cause an election to be held
within fifty days, as prescribed by the statute quoted.
to [the county seat removal act] is a nullity, as the election law prescribes registry as a
prerequisite to voting, and the registry law in all cases of special election allows forty days for
registering, and ten days thereafter for objections to be heard and determined, and registry
copies for officers of election to be made; so that fifty full days must elapse from the opening
of the registry to the day of election, thus rendering it an impossibility to cause an election to
be held within fifty days, as prescribed by the statute quoted. This would seem, unfortunately,
to be the fact, and such result would be avoided by this court if possible; but the law is too
clear and plain for such avoidance, and the consequence is simply another illustration of the
evil of too much legislation.
Many more years have since elapsed, many more sessions of the legislature have been
held. While the county seat removal act was in 1877 amended and reenacted, in this respect it
remained intact. The general election laws were many times amended, but the legislature has
continued the situation in effect. In 1909, in State ex rel. Kaufman v. Martin, 31 Nev. 493,
103 P. 840, a county seat removal case, this court considered the Hess case and stated that it
was not called upon either to follow or overrule that case as a somewhat different question
was presented. The ruling of the Hess case invalidating the calling of an election beyond the
time permitted by the legislature, with legislative knowledge of its effect through all the
years, therefore remains squarely before us unless we are disposed to overrule it, which we
are not. The rule of stare decisis with special emphasis upon its application to opinions
construing statutes, as enunciated in Jensen v. Reno Central Trades & Labor Council, 68 Nev.
269, 229 P.2d 908, impels us to this conclusion.
[Headnote 3]
Appellants contend that the 1939 amendment to the election laws, sec. 2389,
N.C.L.1931-1941 Supp., providing that All acts and parts of acts in conflict with the
provisions of this act are hereby repealed," acts as an express repealer of the
requirements of the county seat removal act.
provisions of this act are hereby repealed, acts as an express repealer of the requirements of
the county seat removal act. We are of the opinion that this contention is without merit.
[Headnote 4]
Appellants further contend that injunction is not a proper remedy in this case, because no
irreparable injury has been shown and because the purpose of the election is purely political
as distinguished from elections involving property rights or causing monetary damage. We
think that this contention is disposed of by the decision of this court in Caine v. Robbins, 61
Nev. 416, 131 P.2d 516, 520, as the present case involves not only the expense of the election
but the possible expenditure of large amounts of money in removing the county seat. The
language of this court in Caine v. Robbins is particularly applicable:
To deny the jurisdiction of courts in a case of this character, where a plain, palpable
violation of the constitution is threatened, would be to concede that irreparable injury,
obvious and undisputed, was beyond the restraint of the remedial arm of equity.
While an important and delicate function is before this court in affirming an injunction
restraining an election wherein the voters of the county may express their choice as to the
change of a county seat, our decision is not fatal to future opportunity to accomplish the will
of the voters. When legislative provision is made to permit the accomplishment of such
objective, the same may be carried into effect.
The judgment of the district court is affirmed. This order shall be effective immediately.
Let remittitur issue forthwith.
____________
70 Nev. 141, 141 (1953) State Ex Rel. Blad v. Jones
THE STATE OF NEVADA, on the Relation of NORMAN W. BLAD, Relator, v. GLEN
JONES, HARLEY E. HARMON, RODNEY COLTON, GEORGE H. ALBRIGHT, and
ROGER D. FOLEY, as Members of the County Liquor Licensing Board, County of Clark,
State of Nevada, Respondents.
No. 3764
October 1, 1953. 261 P.2d 519.
Original proceedings in mandamus to compel holding of hearing by county liquor board
upon application for liquor license.
Upon showing that respondents have complied with command of alternative writ,
proceedings dismissed. Upon petition of relator for leave to amend to ask further relief
by writ of mandate, petition denied.
Morse & Graves, of Las Vegas, for Relator.
Robert E. Jones and Marion B. Earl, for Respondents Glen Jones, Harley E. Harmon,
Rodney Colton and George H. Albright.
Roger D. Foley, of Las Vegas, appearing in proper person and for himself alone.
1. Mandamus.
Where mandamus proceedings had fully accomplished their original purpose in view of compliance with
command of alternative writ directing holding of hearing by county liquor board on application for liquor
license, the proceedings would be dismissed and would not be reformed by permitting amendment of
petition or amending writ to provide framework for determination of a new controversy nor issuance of a
new and different writ of mandate compelling issuance of licence to relator.
2. Courts.
Where concurrent jurisdiction in mandamus is held by district courts to which no resort has yet been had
in the matter, and a determination of the matter may well depend upon resolving of issues of fact by
original determination of court entertaining the matter, to which end evidence must be received and
considered and weighed by that court as a fact-finding agency, the supreme court exercises its discretion to
refuse to accept original jurisdiction in the first instance.
OPINION
Per Curiam:
[Headnote 1]
Relator seeks to secure from the County Liquor Licensing Board of Clark County a license
to dispense liquors at a location within the unincorporated town of Mesquite, which license
the board has heretofore denied him. In this matter, in his petition to this court for writ of
mandate, he contended that he had been denied proper hearing before the board and that his
application for a license had not received proper consideration. He further asserted that his
license had arbitrarily and improperly been refused since such refusal was for the sole reason
that the board had determined to grant no such licenses within the town of Mesquite. This
court thereupon, in response to the prayer of relator's petition, issued an alternative writ of
mandate directed to respondents as such board, in effect commanding them to grant hearing
and give consideration to the application of relator or, in the alternative, show cause why they
should not. In order that the propriety of their alleged refusal to grant such licenses within the
town of Mesquite might be examined, we further directed them, pending determination of
that question by this court, not to reject the application of relator upon that ground alone.
Respondents have answered asserting that since issuance of the writ and in response to its
command a hearing has been granted to relator at which his application was considered and
rejected; that among the determinations of the board upon which its action was based were
the following: that the granting of a license at the proposed location would tend to create a
traffic hazard, a law enforcement problem, a disorderly house and a public nuisance; that it
would tend to increase drunken and reckless driving upon a transcontinental highway; that the
proposed location is not suitable in that it is in the vicinity of many homes. It is therefore
apparent that the command of the alternative writ has been met; that that writ has
fulfilled its function.
that the command of the alternative writ has been met; that that writ has fulfilled its function.
Replying to the answer of respondents relator has challenged the propriety of respondents'
action and asserts that by virtue of facts which he now alleges to exist, and evidence of which
he has tendered by way of exhibits, he may not now properly be refused a license. He now
asks leave of this court to amend his petition to ask a writ of mandate compelling the issuance
of the license to him.
This appeal to our discretion we must reject. It is clear that the controversy which now
exists is an entirely different one from that over which we accepted jurisdiction in issuing our
alternative writ. As we have noted, that writ has now fulfilled its function. In our view it is
not now a proper subject for amendment. In our view these proceedings, having fully
accomplished their original purpose, should not now be reformed to provide the framework
for determination of a new controversy nor issuance of a new and different writ.
[Headnote 2]
Furthermore it is apparent from relator's reply that a determination of this new dispute may
well depend upon the resolving of issues of fact by original determination of the court
entertaining the matter, to which end evidence must be received, considered and weighed by
that court as a fact-finding agency. Concurrent jurisdiction in mandamus is held by the district
courts to which no resort has yet been had in this matter. It is the practice of this court in
exercise of its discretion to refuse to accept original jurisdiction in the first instance under
these circumstances.
Relator's petition for leave to amend is denied.
These proceedings are hereby dismissed without costs to any party.
____________
70 Nev. 144, 144 (1953) State v. Board of Regents
THE STATE OF NEVADA, Upon the Relation of FRANK RICHARDSON, Petitioner, v.
THE BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA, and SILAS E. ROSS,
ROY A. HARDY, LOUIS E. LOMBARDI, NEWTON CRUMLEY and A. C. GRANT,
Constituting the Members of Said Board, Respondents.
On Motion to Dismiss
No. 3759
October 1, 1953. 261 P.2d 515.
Original proceedings in certiorari brought to determine whether board of regents of state
university had acted without, or in excess of, its jurisdiction in removing an associate
professor under tenure. On respondents' motion to dismiss, the Supreme Court, Badt, J., held
that the board's action was not beyond judicial control, that the tenure rule adopted by the
board and requiring a showing of cause for removal could not be ignored by the board, and
that the evidence could be reviewed upon certiorari to determine the existence of
jurisdictional facts.
Motion to dismiss denied.
Bruce R. Thompson, Leslie B. Gray, Bert Goldwater and Ralph K. Wittenberg, all of Reno,
for Petitioner.
W. T. Mathews, Attorney General, Carson City, Lester D. Summerfield and Harlan L.
Heward, both of Reno, Special Assistant Attorneys General, for Respondents.
1. Constitutional Law.
Constitutional separation of power does not prevent judicial review of judicial or quasi judicial acts of
board of regents of state university when an excess of jurisdiction is in question. N.C.L.1929, secs. 7728,
9231, 9237; Const. art. 11, sec. 4.
2. Colleges and Universities.
Where resolutions adopted by board of regents of state university authorized removal of staff member
under tenure only for cause, removal of staff member under tenure was an act judicial in its nature for
review of which certiorari would lie. N.C.L.1929, secs. 7728, 9231, 9237; Const. art. 11, sec. 4.
For purposes of resolution of board of regents of state university authorizing removal of staff member
under tenure only for cause, quoted word meant legal cause, and not any cause which board might deem
sufficient. N.C.L.1929, secs. 7728, 9231, 9237; Const. art. 11, sec. 4.
Tenure rule, adopted by board of regents of state university pursuant to statute authorizing board to
prescribe rules for government of university, had force and effect of statute. N.C.L.1929, sec. 7728.
Board of regents of state university authorized by statute to prescribe rules for government of university
could revoke, as to future employments, rule permitting removal of staff member under tenure only for
cause, and could provide that any instructor, professor, head of department or anyone else on faculty or
teaching staff could be discharged by board with or without cause and at will of board. N.C.L.1929,secs.
7728, 9231, 9237; Const. art. 11, sec. 4.
In certiorari proceedings brought to determine whether the board of regents of state university had acted
without or in excess of its jurisdiction in removing associate professor under tenure, supreme court could
review evidence. N.C.L.1929, secs. 7728, 9231, 9237; Const. art. 11, sec. 4.
OPINION
Petitioner, a member of the faculty of the University of Nevada since August, 1941 and an
associate professor in the department of biology since August, 1949, was charged by the
respondent board of regents, on April 25, 1953, with demonstrating and manifesting by action
and word since the fall of 1952 an uncooperative and insubordinate attitude toward the dean
of his college, the president of the university and the regents. Details of such alleged
uncooperative and insubordinate attitude are set forth in seven consecutive numbered
paragraphs of the Specific Charges following the general charge. A hearing upon the
charges was had May 25, 26 and 27, 1953, before the board of regents to determine whether
the petitioner should be continued as a member of the faculty beyond June 30, 1953.
of the faculty beyond June 30, 1953. At the hearing respondents were represented by the
attorney general and special counsel, the petitioner was represented by counsel, witnesses
were examined and cross examined and documentary evidence received. The matter was
submitted to the board at the conclusion of the hearing, and the board on June 9, 1953 made
its decision and order that Dr. Frank Richardson be removed as a member of the faculty of
the University of Nevada and that no future contract be tendered him. The following
determination or finding is contained in the decision: The board determines that Dr. Frank
Richardson had demonstrated insubordination, that he has not been cooperative and that his
conduct has not been in accord with the welfare of the University of Nevada.
At the time of the charges, hearing and order, faculty bulletin No. 37, dated and
republished February 13, 1950, was in effect pursuant to resolutions of the board of regents of
January 24, 1948, as amended May 26, 1948. Paragraphs 2, 3 and 5 of this bulletin read as
follows:
2) The initial appointment of an Assistant Professor is to be for one year, at the end of
which he is eligible for re-appointment in this grade for a two year term. Upon successful
completion of three years service in this grade, no further re-appointment is necessary; and
his employment shall continue under tenure.
3) Associate Professors and Professors shall be appointed initially for one year and upon
their re-appointment in the same or higher rank their employment shall continue under tenure.
5) A staff member under tenure shall be removed only for cause and after a hearing
before the Board of Regents.
The petition for a writ of certiorari is based upon the contention that the hearing
established no cause for removal and that the action of the board was therefore in excess of its
authority and jurisdiction.
Pursuant to the writ of certiorari issued by this court, the respondent board certified its
return of the proceedings, including a transcript of the testimony comprising some 334
pages and many hundreds of printed and typewritten pages of exhibits.
the respondent board certified its return of the proceedings, including a transcript of the
testimony comprising some 334 pages and many hundreds of printed and typewritten pages of
exhibits. We are concerned at the present time only with the motion to dismiss the
proceedings and the grounds urged in support of such motion. The extent of our review and
of the action that may be taken thereunder are limited by the provisions of sec. 9231,
N.C.L.1929, reading as follows: The writ shall be granted in all cases when an inferior
tribunal, board, or officer, exercising judicial functions, has exceeded the jurisdiction of such
tribunal, board, or officer and there is no appeal, nor, in the judgment of the court, any plain,
speedy and adequate remedy. Sec. 9237, N.C.L.1929, provides: The review upon this writ
shall not be extended further than to determine whether the inferior tribunal, board, or officer
has regularly pursued the authority of such tribunal, board or officer. Section 4 of Article XI
of the state constitution (sec. 149, N.C.L.1929) reads: The legislature shall provide for the
establishment of a state university * * * to be controlled by a board of regents, whose duties
shall be prescribed by law.
Section 7728, N.C.L.1929, fixing the powers and duties of the board of regents requires
the regents, as the first of twelve provisions, To prescribe rules for their own government,
and for the government of the university.
[Headnote 1]
1. It is first asserted by respondents that, since the board of regents is a duly constituted
administrative board established under the constitution and statutes as a part of the executive
department, it is beyond any control by the courts, and that this is so irrespective of whether
the action of the board was executive, administrative or judicial. In support of this contention
respondents rely upon King v. Board of Regents, 65 Nev. 533, 200 P.2d 221. That case does
not so hold. Our opinion dealing with the exclusive control of the university by the board of
regents expressly and repeatedly referred "to their constitutional, executive and
administrative capacity," and to their "executive and administrative control."
to their constitutional, executive and administrative capacity, and to their executive and
administrative control. That the constitutional separation of powers prevents any judicial
review of the judicial or quasi judicial acts of the board of regents when an excess of
jurisdiction is in question was not the holding in the King case or in any other authorities
cited by respondents. The contrary is the rule in this state and in virtually all other
jurisdictions. Sawyer v. Dooley, 21 Nev. 390, 32 P. 437; State v. Board of County
Commissioners, 23 Nev. 247, 45 P. 529; Van Heukelom v. State Board, 67 Nev. 649, 224
P.2d 313; Kassabian v. State Board, 68 Nev. 455, 235 P.2d 327. And see United States v.
Smith, 286 U.S. 6, 52 S.Ct. 475, 76 L.Ed. 954, and Marbury v. Madison, 1 Cranch 137, 2
L.Ed 60. Respondents also claim support for their contention in Wall v. Board of Regents of
California, 38 Cal.App.2d 698, 102 P.2d 533, but the case is clearly distinguishable. The
same may be said of Bailey v. Richardson, 182 F.2d 46, 341 U.S. 918, 71 S.Ct. 669, 95 L.Ed.
1352, and Hamilton v. Regents of University of California, 219 Cal. 663, 28 P.2d 355.
[Headnotes 2, 3]
2. It is next contended that certiorari will not lie for the reason that the removal of the
petitioner by respondents was an executive and not a judicial act. This contention would
probably be well taken if the board had the right to discharge petitioner at its mere will. An
entirely different situation is presented where the authority of the board to remove him was
limited to a discharge for cause after a hearing. Under such circumstances the act of the board
was judicial in its nature. Van Heukelom v. State Board, supra. As contrary to this view,
respondents rely on Hartigan v. Board of Regents of West Virginia University, 49 W. Va. 14,
38 S.E. 698. There the removal was authorized for good cause. No notice was required. The
majority opinion held that no notice or trial was required, that the action was administrative
and that the good cause was what appeared to be such in the opinion of the board.
was what appeared to be such in the opinion of the board. One of the reasons for denying the
writ sought (prohibition) was that if any writ would lie, it would be certiorari. Another reason
given was that the petitioning professor was not an officer, and was accordingly not entitled
to notice, charges or trial. A further reason given was that the contract between the board and
the petitioner gave either party a right to terminate it on certain notice. While the case has
been often cited in support of the rule that a teacher or professor is not a public officer, it does
not seem to have had later support of the holding that discharge of a professor for cause was a
purely ministerial act, or that a discharge for cause was equivalent to a discharge at the will of
the board. In fact a contrary view appears to have been taken by the same court in State ex rel.
Board of Education v. Martin, 112 W. Va. 174, 163 S.E. 850, which held a review by
certiorari to be proper as the proceeding was in the nature of a judicial investigation,
approving the language in a New York case, People ex rel. Mayor of City of New York v.
Nichols, 79 N.Y. 582, that The act of hearing and deciding is always a judicial act. [112
W.Va. 174, 163 S.E. 853.] In any event the complete answer to the West Virginia case is the
holding of this court in State ex rel. Whalen v. Welliver, 60 Nev. 154, 104 P.2d 188, 190,
1016, defining cause as legal cause, and not any cause which the council may have deemed
sufficient. * * * one which specifically relates to and affects the administration of the office *
* * something of a substantial nature directly affecting the rights and interests of the public *
* * one touching the qualifications of the officer or his performance of his duties, showing
that he is not a fit or proper person to hold the office. See also Graves v. School Committee
of Wellesley, 299 Mass. 80, 12 N.E.2d 176.
[Headnotes 4, 5]
3. In support of their contention that the action of the board was executive only
respondents contend: The tenure rule laid down by the board of regents provided for a
hearing and required cause for removal.
tenure rule laid down by the board of regents provided for a hearing and required cause for
removal. We contend that this tenure rule is not binding upon the regents, but that in their
executive capacity, they may ignore the rule if they so see fit. In other words, it is contended
that it is not necessary that legal cause exist for the dismissal in question. The authorities
cited in support of this contention, French v. Senate of State, 146 Cal. 604, 80 P. 1031, 69
L.R.A. 556, and Bailey v. Richardson, 86 U.S.App. D.C. 248, 182 F.2d 46, 341 U.S. 918, 71
S.Ct. 669, 95 L.Ed. 1352, are not in point. The contention itself is not well founded. Section
7728, N.C.L.1929, fixing the powers and duties of the board of regents and authorizing the
board To prescribe rules for their own government, and for the government of the
university, wisely delegated to the regents the authority in their discretion to establish such
rules as the tenure rule above described. In our opinion this rule, having been duly
established, has the force and effect of statute. West Texas C. W. Co. v. Panhandle & S. F.
Ry. Co. (Tex.), 15 S.W.2d 558. Such rules and regulations affected not only the body of
which the regents were a part, as in French v. Senate of State, but employed professors such
as petitioner, persons holding their positions under contract. As the construction to be given
to the rules [and, we may add, reliance on such rules in accepting employment] affects
persons other than members of the [United States] Senate, the question presented is of
necessity a judicial one. United States v. Smith, 286 U.S. 6, 52 S.Ct. 475, 478, 76 L.Ed. 954.
This is peculiarly applicable to our statutory requirement that the regents make rules and
regulations for their own government, and for the government of the university. In a
somewhat similar situation, against the contention that the tenure rules were made only for
the governance of the board of regents, the Supreme Court of Montana held that such
regulations had the force of law. State ex rel. Keeney v. Ayers, 108 Mont. 547, 92 P.2d 306.
Such indeed seems to be the general rule.
rule. The board of regents may in the exercise of its statutory authority undoubtedly revoke
such tenure rule as to future employments and may provide that any instructor, professor,
head of department or anyone else on the faculty or teaching staff may be discharged by the
board with or without cause and at the will of the board. What effect such change in the rules
and regulations would have, if attempt were made to apply it retroactively, it is unnecessary
to discuss or to determine.
4. It is next contended that erroneous action by the board while acting within its
jurisdiction may not be reviewed by certiorari. This we may, for the motion's sake, concede.
However, the issue raised by the petition is whether or not the board acted without or in
excess of its jurisdiction.
[Headnote 6]
5. It is next contended in support of the motion to dismiss that in any event certiorari may
review only the record and not the evidence. The Nevada cases cited in support of this
contention do not so hold. In fact our holdings are to the contrary. State ex rel. Fall v. County
Commissioners, 6 Nev. 100 (5-6-7 Nev. 441); Covington v. Second Judicial District Court,
56 Nev. 313, 50 P.2d 517; Morgan v. Eureka County Commissioners, 9 Nev. 360. In these
cases there are cited with approval Whitney v. Board of Delegates, 14 Cal. 479, and People
ex rel. Bodine v. Goodwin, 1 Selden, N.Y., 568, all of which hold for the necessity of
examining not only the record but the evidence itself in order to determine the existence of
the jurisdictional facts. In the very early case of State v. Washoe County, 5 Nev. 317, this
court said: To settle that question [whether the board acted within its jurisdictional powers],
of course it is proper to review any or all evidence certified. See Annotation 5 A.L.R.2d 675.
Our denial of the motion to dismiss rejects the contentions (1) that such action is beyond
judicial control, (2) that it is administrative only, (3) that the tenure rule requiring a showing
of cause upon hearing may be ignored by the board of regents, and {4) that the evidence
may not be reviewed upon certiorari to determine the existence of the jurisdictional facts.
rule requiring a showing of cause upon hearing may be ignored by the board of regents, and
(4) that the evidence may not be reviewed upon certiorari to determine the existence of the
jurisdictional facts.
Respondents have cited numerous other authorities in support of their contentions. We
have given due consideration to such authorities but have refrained from discussing them as
we do not consider them in point. Respondents have also discussed other matters in support
of their motion to dismiss. These we have not discussed, as it is our opinion that they may be
more properly disposed of on the submission of this matter on the merits.
Respondents' motion to dismiss is coupled with a motion to quash the writ of certiorari
issued by this court. Both motions are denied.
____________
70 Nev. 152, 152 (1953) Baker v. Leary
MAURICE BAKER and BERTHA ROSS, Appellants,
v. MILDRED E. LEARY, Respondent.
No. 3757
October 15, 1953. 261 P.2d 1013.
Dept. No. 2.
Action upon a California money judgment. From a summary judgment for defendant,
plaintiffs appealed. The Supreme Court, Merrill, J., held that where, under California law, no
cause of action had accrued upon the California judgment because of pendency of appeal
therefrom, action was properly dismissed.
Judgment affirmed.
Milton W. Keefer and Wm. E. Gelder, of Las Vegas, for Appellants.
Hawkins and Cannon, of Las Vegas, for Respondent.
70 Nev. 152, 153 (1953) Baker v. Leary
1. Judgment.
In action upon foreign money judgment, law of state in which judgment was rendered was controlling in
determination of whether such judgment possessed degree of finality necessary to permit action to be
brought upon it, and foreign judgment was required to be accorded the same degree of finality as accorded
it by state in which it was rendered.
2. Judgment.
Under California law, pendency of an appeal prevents a judgment from becoming operative as a bar or
estoppel in another action. Code Civ.Proc.Cal., sec. 1049.
3. Judgment.
Under California law, no cause of action may accrue upon a judgment during its statutory period of
pendency. Code Civ.Proc.Cal., sec. 1049.
4. Judgment.
Under California law, judgment is not final so long as an appeal is pending, even though a supersedeas
bond has not been furnished. Code Civ.Proc.Cal., secs. 942, 1049.
5. Judgment.
Where, under California law, no cause of action had accrued upon California judgment, because of
pendency of appeal therefrom, action in Nevada upon such judgment was properly dismissed. Code
Civ.Proc.Cal., sec. 1049.
On appeal from dismissal of action upon a California judgment, contention that, since the pertinent
California law was not actually pleaded in action below, it should not be considered by supreme court, was
not timely presented, where such section of California law was presented to trial court without objection.
Code Civ.Proc.Cal., sec. 1049.
OPINION
[Headnote 1]
This is an action brought upon a foreign money judgment: judgment of the Superior Court
of the State of California in and for Los Angeles County. In the court below summary
judgment was rendered in favor of the defendant and the plaintiffs have taken this appeal. The
sole question involved is whether the California judgment was possessed of that degree of
finality necessary to permit action to be brought upon it. It is conceded that in determination
of this question California law is controlling; that we must accord to that judgment the
same degree of finality accorded it by the state in which it was rendered.
70 Nev. 152, 154 (1953) Baker v. Leary
controlling; that we must accord to that judgment the same degree of finality accorded it by
the state in which it was rendered.
The record shows that an appeal has been taken from the California judgment which
remains pending; that in connection with that appeal no stay bond or supersedeas has been
furnished by the California appellant. The record also discloses that under California law, sec.
942, C.C.P., if a stay bond be not furnished by the appellant, execution may be had upon a
money judgment notwithstanding the pendency of an appeal.
Appellants here contend that Rogers v. Hatch, 8 Nev. 35, has established that under these
circumstances the California judgment may properly form the basis for action in this state;
that since it is subject to enforcement by execution it is likewise subject to enforcement by
action. Such was the holding of that case and such, generally, would appear to be the weight
of authority. The opinion in that case, however, makes it clear that the record before the court
contained no proof of California law and that accordingly the law of Nevada was applied.
This court in this matter does not suffer from such lack of enlightenment.
The record before us also discloses that sec. 1049, Cal. C.C.P., provides as follows: An
action is deemed to be pending from the time of its commencement until its final
determination upon appeal, or until the judgment is sooner satisfied.
[Headnote 2]
Under this section the California courts have recognized a distinction between the right to
enforcement by execution or by action in direct aid of execution (see: Cal. Mortgage & Sav.
Bank v. Graves, 129 Cal. 649, 62 P. 259; Sewell v. Price, 164 Cal. 265, 128 P. 407) and
enforcement by independent action. In the latter connection it has consistently been held that
pendency of an appeal prevents a judgment from becoming operative as a bar or estoppel in
another action. Naftzger v. Gregg, 99 Cal.
70 Nev. 152, 155 (1953) Baker v. Leary
Gregg, 99 Cal. 83, 33 P. 757, 37 Am.St.Rep. 23; Re Blythe's Estate, 99 Cal. 472, 34 P. 108;
Story v. Story & Isham Commercial Co., 100 Cal. 41, 34 P. 675; Brown v. Campbell, 100
Cal. 635, 35 P. 433; 38 Am.St.Rep. 314; Purser v. Cady, 120 Cal. 214, 52 P. 489; Pellissier v.
Title Guarantee & Trust Co., 208 Cal. 172, 280 P. 947; see Harris v. Barnhart, 97 Cal. 546,
32 P. 589.
[Headnote 3]
Consistent with this stand, it has expressly been held that no cause of action may accrue
upon a judgment during its statutory period of pendency. Feeney v. Hinckley, 134 Cal. 467,
66 P. 580, 86 Am.St.Rep. 290; Cook v. Ceas, 143 Cal. 221, 77 P. 65; Harrier v. Bassford, 145
Cal. 529, 78 P. 1038; Willard v. Dobbins, 191 Cal. 287, 216 P. 1008; Jones v. Summers, 105
Cal.App. 51, 286 P. 1093; Jennings v. Ward, 114 Cal.App. 536, 300 P. 129; Turner v.
Donovan, 52 Cal.App.2d 236, 126 P.2d 187.
[Headnote 4]
In Jennings v. Ward, supra, the court in so holding stated: It is the settled rule in
California, although the weight of authority in other jurisdictions is to the contrary, that a
judgment is not final so long as an appeal is pending therefrom, even though a supersedeas
bond has not been furnished.
This same analysis of the law of California is made in the texts and the same conclusion
drawn. See: 2 Freeman on Judgments (5th ed.) 2230, sec. 1071; 15 Cal. Jur. 260, Judgments,
sec. 259.
[Headnote 5]
It is, then, clear that under sec. 1049, Cal. C.C.P., no cause of action may be said to have
accrued upon the California judgment with which we are here concerned. Dismissal of the
action below was, therefore, proper.
[Headnote 6]
Appellants upon oral argument before this court for the first time have advanced the
contention that since sec. 1049, Cal. C.C.P., was not actually pleaded in the action below, it
should not be considered by this court.
70 Nev. 152, 156 (1953) Baker v. Leary
action below, it should not be considered by this court. The record shows, however, that this
section of the California law was presented to the trial court without objection. Under the
circumstances we do not regard the point as having been timely presented.
Judgment of the trial court is affirmed with costs.
____________
70 Nev. 156, 156 (1953) Johnson v. Watkins
GEORGE T. JOHNSON, Appellant, v. WALTER S. WATKINS, and WELLESLEY
WATKINS, His Son, dba as Copartners Under the Firm Name and Style of W. S. WATKINS
& SON, and GEORGE E. MILLER and FRANK GERHARD, Respondents.
No. 3736
October 20, 1953. 262 P.2d 237.
Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,
Department No. 1, from a judgment of nonsuit and dismissal on the merits.
Action by independent hauler of logs under contract with seller of logs to defendant
lumber mill operator for injuries received when block and tackle, which was part of device
which was powered by a caterpillar tractor and was used in unloading logs from truck trailers
and in replacing trailers on trucks after trailers were unloaded, swung toward and struck
plaintiff who was fastening trailer tongue to bed of truck after trailer was replaced on truck
after trailer was unloaded and after plaintiff had swung block around leg of frame of such
device as was customary. From a judgment adverse to the plaintiff, the plaintiff appealed. The
Supreme Court, Eather, C. J., held that it was a possible inference under evidence plaintiff's
haste caused plaintiff to place block insecurely around frame and that block slipped from
position solely because of plaintiff's lack of care, and that only inference possible was not
that tractor moved block, and that evidence did not establish negligence of defendant.
lack of care, and that only inference possible was not that tractor moved block, and that
evidence did not establish negligence of defendant.
Affirmed.
H. Dale Murphy, Reno, and McCarran, Rice, Wedge and Blakey, Reno, Attorneys for
Appellant.
Morgan Anglim, Reno, Attorney for Respondents George E. Miller and Frank Gerhard.
Griswold, Vargas and Bartlett, Reno, Attorneys for Respondents Walter S. Watkins and
Wellesley Watkins, his son, dba as copartners under the firm name and style of W. S.
Watkins & Son.
1. Negligence.
In action by independent hauler of logs under contract with seller of logs to defendant lumber mill
operator, for injuries received when block and tackle, which was part of device which was powered by a
caterpillar tractor and was used in unloading logs from truck trailers and in replacing trailers on trucks after
trailers were unloaded, swung toward and struck plaintiff after plaintiff had swung block around leg of
frame of such device as was customary, evidence did not establish negligence of defendant.
2. Negligence.
Res ipsa loquitur doctrine applies to control and operation, not ownership, of instrumentality.
OPINION
A nonsuit was entered against plaintiff and he asks us to reverse the judgment. After a
careful study of the entire record we are compelled to affirm the action of the district judge.
Defendant, W. S. Watkins & Son, operated a lumber mill in Reno to which heavy logs
were hauled and dumped into a pond. Plaintiff (appellant) was an independent hauler of logs
under contract with a man who sold logs to Watkins. Plaintiff had delivered to the Watkins
Mill forty or fifty loads of logs prior to the accident which resulted in injury to plaintiff.
the Watkins Mill forty or fifty loads of logs prior to the accident which resulted in injury to
plaintiff. The operation on each occasion was the same.
A road on the mill premises adjoined the pond and the loaded trucks used the road,
stopping opposite an A frame erected on the ground so that each load of logs was between
the frame and the pond. The frame consisted of two heavy upright posts which formed a
triangle with the ground as a base. The frame was not perpendicular but the apex extended
out and over the road so that a pulley block with hook on the end of a wire rope suspended
from and running on a wheel at the apex could be lowered onto the loaded truck. The block
with the pulley, when not in use for unloading purposes, was swung by hand away from the
road and attached to one leg of the frame. There was no fastening device to hold the block on
the leg but the block and rope had always been placed around a leg of the A frame and
apparently held in position by its own weight of approximately fifty pounds until it was
removed manually. The wire rope went through the pulley at the apex of the frame and came
down to the equipment on the ground which furnished the motive power for its operation.
It was the custom for each log hauler to take the block from the leg of the frame, after he
had placed his truck in position, and attach the hook to chains or wire rope placed in contact
with his load of logs in such manner that, when the power was applied to the wire rope
through the pulley of the frame, the logs would be rolled off the far side of the truck into the
pond. After the unloading had been accomplished, the hauler would place the block on the leg
of the frame and move his truck forward so that the trailer would be under the apex of the
frame. Then he would take the block again from the leg of the frame and attach the hook to a
portion of his trailer and the trailer would be raised and held suspended in air until he backed
his truck into a position under the suspended trailer; then the trailer would be lowered
onto the truck and the hauler would remove the block and place it again on the leg of the
frame.
under the suspended trailer; then the trailer would be lowered onto the truck and the hauler
would remove the block and place it again on the leg of the frame. He would then fasten the
tongue of the trailer onto the truck by means of chains on each piece of equipment and would
drive away. Thus it can be seen that during each unloading operation, the truck or hauler
would handle the block twice from the frame and return. The block was raised or lowered
only when the operator of the motive power equipment received a signal from the hauler. At
the time of the accident the winch which normally provided motive power was out of order
and the power was supplied by a tractor. When the block was to be raised, the tractor to
which the wire rope was attached was driven away from the base of the frame at a right angle.
Each unloading operation accordingly required eight or more signaled instructions from the
trucker to the tractor driverto start, to stop, to back, to stop, etc., and finally that the
operation was complete.
At the time of the accident the caterpillar tractor was owned by George E. Miller and was
on the Watkins' premises by virtue of an oral contract with Miller; and the contract required
Miller to supply the tractor, keep it in working order, and to provide an operator therefor, for
all of which W. S. Watkins & Son paid Miller on an hourly basis. Melvin Frank Gerhard was
operating the tractor on July 23, 1948.
On July 23, 1948, plaintiff arrived about noontime at the Watkins Mill with a load of logs
on his truck and trailer. He placed the truck under the apex of the frame and moved the block
from the leg of the frame to his load. After his logs had been put into the pond, he replaced
the block on the frame and moved his truck into position for loading the trailer onto the truck.
He again secured the block from the frame and placed it on his trailer. After the trailer had
been loaded he removed the block and placed it on the leg of the frame and he turned his back
to the frame and attempted to fasten the tongue of the trailer to the truck.
fasten the tongue of the trailer to the truck. Within a minute after he placed the block at the
frame he was struck on the left side of his face by the block or wire rope, which had swung
from the frame where plaintiff had placed it. Plaintiff could not see behind him while he was
fastening the tongue of his trailer with his back to the frame and he testified that he did not
know exactly what struck him. Defendant, Gerhard, called by plaintiff as for cross
examination, testified that he got plaintiff's signal that he was not needed longer and he
stopped his engine and locked the brakes of the caterpillar tractor. He says his tractor did not
move thereafter; there is no contradictory testimony. As he was descending from his tractor to
the ground he saw the block and tackle swinging toward and strike plaintiff. He was not sure,
however, whether it was the block or cable or hook that struck plaintiff. He testified that
before receiving the signal from plaintiff he saw plaintiff swing the block around the leg of
the frame. He said that when he saw the block swinging toward and some part of the
equipment strike plaintiff's head, plaintiff was in a kneeling position on the truck. Plaintiff
testified that he was standing on his truck when he was struck.
Apparently the nonsuit was granted on the theory that there was a complete failure of proof
of negligence on the part of any defendant. Plaintiff was thoroughly familiar with the
equipment and had used it many times. He testified he placed the block and its wire rope
around the leg of the frame about 5 or 5 1/2 feet above the ground. Plaintiff is 5 feet 11 inches
tall. He contends that because he was standing on his truck the block was higher from the
ground when it struck him than when he placed it on the frame. He insists that we must infer
that it could not have reached that higher position unless the caterpillar tractor had moved and
pulled the block higher. Therefore, plaintiff says, we must infer that the tractor moved and
that negligence was involved in the movement; that from the physical facts and the laws of
physics {that the pendulum, released at 5 1J2 feet, could never reach a greater height
than that) the pulley striking his head at a height of some nine feet, must have been
raised by the forward movement of the tractor.
the movement; that from the physical facts and the laws of physics (that the pendulum,
released at 5 1/2 feet, could never reach a greater height than that) the pulley striking his head
at a height of some nine feet, must have been raised by the forward movement of the tractor.
The statute (sec. 9047.04, N.C.L.1931-1941 Supp.) provides:
WHEN AN INFERENCE ARISES. Sec. 558d. When an inference arises, an inference
must be founded:
1. On a fact proved; and
2. On such a deduction from that fact as is warranted by a consideration of the usual
propensities or passions of men, the particular propensities or passions of the person whose
act is in question, the course of business, or the course of nature.
Plaintiff has failed to show sufficient facts to support an inference. There is an absence of
proof of the exact distance of plaintiff's head from the ground at the time of the impact. Under
plaintiff's own theory of the case, that distance is important. He says he was standing on his
truck. The operation in which he was then engaged was fastening the trailer tongue to the bed
of the truck by means of chains. The top of the tongue was from 3 to 3 1/2 feet above the bed
of the truck. There was testimony that the bed of the truck was 3 feet 8 3/4 inches from the
ground.
He put a chain over the tongue and was attempting to bind that chain and another chain to
keep the tongue in place. If he were fully erect, his head probably would be as much as three
feet higher than if he were stooping. His statement that he was standing is not fully
explanatory. He could have been on his feet, bending his body so that his head was very low
and still he would have been standing. He testified that he had to apply his weight to the task
of binding the tongue to the truck. Even were he standing he could hardly have done it unless
he was stooped or crouched, in which event his head might not have been higher than the
block when it was on the leg of the frame before it started to swing towards him.
was on the leg of the frame before it started to swing towards him. If that were true, a
movement of the tractor is not a necessary or unavoidable inference.
[Headnote 1]
Plaintiff's own testimony is that he wanted to have his logs unloaded quickly so he could
go back to the woods for another load that day. When he arrived at the Watkins Mill, Gerhard
was about to quit work for lunch but plaintiff prevailed upon Gerhard to delay lunch until the
load had been put into the pond. It is entirely possible that plaintiff's haste caused him to
place the block insecurely around or against the frame and it slipped from position solely
because of plaintiff's lack of care. Thus, plaintiff is mistaken in his insistence that the only
inference possible in the case is that the tractor moved the block.
Of even greater importance is the fact that the evidence does not show what portion of the
apparatus of block and tackle struck plaintiff's head. Plaintiff proceeds upon the assumption,
wholly without proof, that it was the pulley which caused the injury. There is nothing in the
record to indicate that it might not have been that portion of the cable immediately above the
pulley. This being so, the proved facts are as consistent with the testimony of Gerhard as
otherwise. Gerhard's testimony, therefore, stands uncontradicted and must have been so
considered by the trial judge upon motion for nonsuit. Even if Gerhard's testimony should be
disregarded, although uncontradicted, on the motion for nonsuit, we are still left with no
proof of any negligence on the part of any defendant.
[Headnote 2]
Plaintiff invokes the res ipsa loquitur doctrine, but it cannot be applied in this case. It is
undisputed that the last hands touching the block were those of plaintiff. He put the block on
the leg of the frame and gave a signal to Gerhard that there was no further need for the tractor.
As Gerhard testified that the tractor did not move thereafter, there is no escape from the
fact that the person who had been last in control of the instrumentality was plaintiff
himself.
move thereafter, there is no escape from the fact that the person who had been last in control
of the instrumentality was plaintiff himself. The rule applies to the control and operation, not
the ownership of the instrumentality. It is obvious that the res ipsa loquitur doctrine could not
be applied against any defendant.
The judgment of the trial court is affirmed, with costs.
____________
70 Nev. 163, 163 (1953) Doolittle v. Doolittle
ELVA SAVAGE DOOLITTLE, Appellant, v. JAMES
H. DOOLITTLE, JR., Respondent.
No. 3769
November 3, 1953. 262 P.2d 955.
Appellant filed a motion in Supreme Court for an order extending the time for filing and
docketing an appeal and respondent filed counter motion to dismiss the appeal. The Supreme
Court held that excusable neglect was not shown and that appeal must be dismissed for
failure to docket appeal and file record on appeal, or secure extension of time from district
court within the time provided by Rules of Civil Procedure, Rule 73 (g).
Appellant's motion denied, respondent's motion granted, and appeal dismissed.
Roger D. Foley, of Las Vegas, for Appellant.
Milton W. Keefer, of Las Vegas, for Respondent.
Where notice of appeal was filed on March 25, 1953, and motion filed in Supreme Court on July 7, 1953,
for extension of time for filing and docketing appeal gave no reason for failure to docket appeal and file
record within time prescribed by rules of procedure, except that clerk of district court did not complete
preparation of record on appeal until June 4, 1953, and no reason was assigned for failure to secure an
extension of time from district court within the time allowed, excusable neglect was not shown and appeal
must be dismissed for failure to docket appeal and file record within prescribed time.
for failure to docket appeal and file record within prescribed time. Rules of Civil Procedure, Rule 73(g),
75(a).
2. Courts.
Under federal rule, appeal must be dismissed for failure to docket appeal and file record within the time
prescribed by rule or an extension thereof, in absence of showing of excusable neglect. Fed.Rules
Civ.Proc., Rule 73(g), 28 U.S.C.A.
3. Courts; Federal Civil Procedure.
Rules of procedure were intended to expedite and simplify practice and procedure and ample provision is
made therein to relieve against hardship and excusable neglect. Rules of Civil Procedure, Rule 73(g);
Fed.Rules Civ.Proc., Rule 73(g), 28 U.S.C.A.
OPINION
Per Curiam:
This matter is before us on counter motions of the parties. The proceedings were initiated
July 7, 1953 by the filing by appellant of a motion for an order extending the time for filing
and docketing the appeal herein. Respondent has now moved to dismiss the appeal upon the
ground that the appeal has not been docketed nor the record on appeal filed within the time
provided by rule.
Rule 73(g), N.R.C.P., in pertinent part provides: The record on appeal as provided for in
Rules 75 and 76 shall be filed with the appellate court and the appeal there docketed within
40 days from the date of filing the notice of appeal; * * *. In all cases the district court in its
discretion and with or without motion or notice may extend the time for filing the record on
appeal and docketing the appeal, if its order for extension is made before the expiration of the
period for filing and docketing as originally prescribed or as extended by a previous order;
but the district court shall not extend the time to a day more than 90 days from the date of
filing the first notice of appeal.
By an agreed statement of facts it appears that the notice of appeal and bond on appeal
were timely filed with the clerk of the court below March 25, 1953; that on that date appellant
served and filed a designation of the contents of the record on appeal pursuant to Rule
75{a), N.R.C.P.; that subsequently respondent served and filed a designation of additional
matters to be included; "that the clerk of the district court * * * did not complete
preparation of the matters designated by the parties to constitute the record on appeal
until the 4th day of June, 1953; * * * That the said record has not as of the date hereof
been filed in this court."
the contents of the record on appeal pursuant to Rule 75(a), N.R.C.P.; that subsequently
respondent served and filed a designation of additional matters to be included; that the clerk
of the district court * * * did not complete preparation of the matters designated by the parties
to constitute the record on appeal until the 4th day of June, 1953; * * * That the said record
has not as of the date hereof been filed in this court.
[Headnote 1]
No reason is assigned by appellant for her failure to docket the appeal and file the record
within the time prescribed, save the fact that preparation of the record by the clerk of the
district court had not been completed. No reason is assigned for her failure to secure an
extension of time from the district court within the time provided. In our view there has been
complete failure to show excusable neglect.
[Headnote 2]
Our rule 73(g) is substantially identical with rule 73 (g) of the federal rules of civil
procedure, 28 U.S.C.A. Under circumstances such as exist here, the federal authorities are
overwhelmingly in accord that the appeal must be dismissed. Mulvaney v. Lever Bros. Co.,
C.C.A. 6th Cir., 158 F.2d 956; Gammill v. Federal Land Bank, C.C.A. 7th Cir., 129 F.2d 501;
United States ex rel. Rempas v. Schlotfeldt, C.C.A. 7th Cir., 123 F.2d 109, 111; United States
v. Consolidated Freightways Inc., C.C.A. 9th Cir., 178 F.2d 756; United States v. Stanton,
C.C.A. 9th Cir., 172 F.2d 642; National Union of Marine Cooks and Stewards v. Matson,
C.C.A. 9th Cir., 171 F.2d 179; Tucker Products Corp. v. Helms, C.C.A. 9th Cir., 171 F.2d
126; Citizens' Protective League, Inc. v. Clark, 85 U.S.App.D.C. 282, 178 F.2d 703; Maghan
v. Young, 80 U.S.App.D.C. 395, 154 F.2d 13.
[Headnote 3]
As stated in United States ex rel. Rempas v. Schlotfeldt, supra, [123 F.2d 111] The rules
of procedure were intended to expedite and simplify the practice and procedure. Ample
provision is made in the rules to relieve against hardship and excusable neglect.
relieve against hardship and excusable neglect. There is no room for inexcusable neglect and
long delay, and where both appear, as in this case, it seems to us a good time to indicate that
the rules of this court and of the Code of Civil Procedure have some meaning and purpose.
In Gammill v. Federal Land Bank, supra [129 F.2d 502] it is stated, While the Rules of
Civil Procedure provide that, with the exception of the requirement of timely notice of
appeal, none of the steps to secure review of a judgment appealed from are jurisdictional
(Rule 73[a],), it is clear that the rules are expected to be followed, and that unless reasons
satisfactory to the court are advanced as a basis for special relief from their provisions, it will
take such action as it deems appropriate. In this case, such action would be denial of leave to
docket the appeal, * * *. This position is in accord with that of this court under our own
supplementary rules of court prior to adoption of N.R.C.P. Roberts v. Roberts, 63 Nev. 459,
174 P.2d 611.
Appellant's motion is denied. Respondent's motion is granted and the appeal dismissed.
____________
70 Nev. 167, 167 (1953) State Et. Al. v. City of Reno
THE STATE OF NEVADA Upon the Relation of SONYA S. HOLLAND, FRANCES and
GENE F. LATOURRETTE, Wife and Husband, JANE B. and JOHN L. STADTLER, Wife
and Husband, PHYLLIS and CLEVELAND B. CRUDGINGTON, Wife and Husband,
SUSAN S. HANCOCK, a Single Woman, ANTHONY L. STADTHERR, PATRICIA S.
KENDALL, a Single Woman, ABRAHAM LINCOLN KENDALL, ELLA and WILLIAM
EDWARDS, Wife and Husband, JULIA C. JUDGE, M. O. LITTLE, and INTERLAKEN
PARK CORPORATION, a Nevada Corporation, Relators, v. CITY OF RENO, a Municipal
Corporation, FRANCIS R. SMITH, Mayor, and WILLIAM A. LIGON, EDWIN SEMENZA,
CHARLES E. COWEN, THOMAS HARVEY, ROY G. BANKOFIER, and MARSHALL A.
GUISTI, Councilmen of Said City, Respondents.
No. 3758
November 5 1953. 262 P.2d 953.
Original proceeding in nature of quo warranto by owners of property proposed to be
annexed to respondent city by respondent city officials. Owners sought to prevent the
annexation. Respondents moved to dismiss action. The Supreme Court, Merrill, J., held that
action had not been properly brought in view of fact that it had not been brought by the
attorney general.
Upon motion to dismiss, motion denied, without prejudice; relators allowed 30 days
within which to cure procedural defects.
Clyde D. Souter, of Reno, for Relators.
Samuel B. Francovich, City Attorney, City of Reno, and Bruce D. Roberts, Assistant City
Attorney, City of Reno, for Respondents.
1. Quo Warranto.
Allegations of complaint and information in nature of quo warranto by owners seeking to prevent
proposed annexation of their property to city on ground that such annexation was
improper and that city had misused its legislative charter and franchise, together
with exhibits attached to complaint, did not so clearly disclose that property was only
a portion of entire area sought to be annexed and was entirely surrounded by city
and was primarily residential in character as would warrant granting motion of
respondent city and its officials to dismiss action on ground that such annexation
could not be said to be arbitrary or unreasonable.
of their property to city on ground that such annexation was improper and that city had misused its
legislative charter and franchise, together with exhibits attached to complaint, did not so clearly disclose
that property was only a portion of entire area sought to be annexed and was entirely surrounded by city
and was primarily residential in character as would warrant granting motion of respondent city and its
officials to dismiss action on ground that such annexation could not be said to be arbitrary or unreasonable.
2. Quo Warranto.
In quo warranto, relator is not true party in interest with state a purely formal party retained out of
historical consideration for origin of the proceeding, but proceeding is one brought by state as an interested
complainant and involves matters of public interest. N.C.L.1929, sec. 9203 et seq., 9207.
3. Quo Warranto.
Where proceeding in nature of quo warranto by owners of realty proposed to be annexed to respondent
city by respondent city officials, wherein owners sought to prevent annexation, was not brought by the
attorney general, such action would not lie. N.C.L.1929, secs. 9203 et seq., 9207.
OPINION
(On Motion to Dismiss)
This is an original proceeding by complaint and information in the nature of a quo
warranto filed by relators under leave of court. Relators are owners of property which
respondent City of Reno proposes to annex. They here seek to prevent such annexation,
contending that it is improper and that in proceeding to that end the city is guilty of misuse of
its legislative charter and franchise. The matter is now before us upon the motion of
respondents to dismiss the action. Two grounds are advanced for this motion.
First: It is contended by respondents that the complaint of relators fails to state a claim
upon which relief can be granted. Their position may be summarized as follows: that relators'
property is only a portion of the entire area sought to be annexed; that it is entirely surrounded
by the City of Reno; that it is primarily residential in character; that the city's action cannot,
therefore, be said to be arbitrary or unreasonable. Their position appears to be based not so
much upon absence of material allegations as upon the existence of facts inconsistent
with the relief prayed.
position appears to be based not so much upon absence of material allegations as upon the
existence of facts inconsistent with the relief prayed.
[Headnote 1]
At this stage of the proceedings the record before us is limited to relators' complaint. In our
view the facts upon which respondents rely cannot be said to appear so clearly from the
allegations of the complaint and the exhibits attached thereto as to warrant disposition of the
matter upon the merits at this time. A full and clear picture of the situation which exists is not
yet before us. The motion to dismiss upon this ground is denied without prejudice to its future
renewal.
Second: It is contended that the action has not properly been brought since it was not
brought by the attorney general.
Secs. 9203 et seq., N.C.L. 1929, deal with quo warranto. Sec. 9203 provides that the action
shall be brought in the name of the state. Secs. 9203 and 9204 specify the cases in which the
action will lie. Sec. 9205 provides: The attorney-general, when directed by the governor,
shall commence any such action; and when, upon complaint or otherwise, he has good reason
to believe that any case specified in the preceding section can be established by proof, he
shall commence an action. Sec. 9206 provides: Such officer may, upon his own relation,
bring any such action, or he may, on the leave of the court, or a judge thereof in vacation,
bring the action upon the relation of another person; and, if the action be brought under
subdivision one of the first section of this chapter, he may require security for costs to be
given as in other cases. Sec. 9207 provides for the bringing of an action in the name of the
state by a person claiming to be entitled to a public office unlawfully held and exercised by
another. With the exception provided by this section the statutes give no authority for the
bringing of the action in the name of the state save by the attorney general.
In State ex rel. City of Reno v. Reno Traction Co., 41 Nev. 405, 417; 171 P.
Nev. 405, 417; 171 P. 375, 379, L.R.A. 1918D, 847, this court in reference to quo warranto,
stated: Inasmuch as the action commenced in this court is a special proceeding, which under
our statute could only be instituted by the state through its attorney-general, and which in this
instance is instituted in strict compliance with that statute, courts are bound to regard the state
as the real party plaintiff. The municipal corporation as such has no power under the statute to
institute the proceeding. This right is limited to the state alone.; and later (41 Nev. 405, 423,
171 P. 375, 381) In the matter at bar the city of Reno could not, under the statute, bring this
action in its own name. The proceeding is one reserved to the state.
[Headnote 2]
In quo warranto, then, it may not be said that the relator is the true party in interest with
the state a purely formal party retained out of historical consideration for the origin of the
proceeding. The proceeding in truth is one brought by the state as an interested complainant
and involves matters of public interest: of wrong done to the state (as, in this instance, alleged
misuse of a franchise granted by the state). It is clear that if the state is to bring the action and
assume the responsibilities of a party litigant, it must act through one in authority. By statute,
the attorney general is the only agent authorized to represent the state in this capacity save as
provided by Sec. 9207.
Relators direct our attention to the case of State ex rel. McMillan v. Sadler, 25 Nev. 131,
58 P. 284, 59 P. 546, 63 P. 128, holding that this court may, by grant of leave to a relator,
bring in the state as party plaintiff without assistance of the attorney general. In that case
application had been made to the attorney general by the relator and the attorney general had
refused to bring the action. The court emphasized that quo warranto provided the only
possible relief to the relator. The action taken by the court amounted to a review of the
attorney general's actions and, in effect, a determination that is refusal under the
circumstances was improper and not in the public interest.
action taken by the court amounted to a review of the attorney general's actions and, in effect,
a determination that is refusal under the circumstances was improper and not in the public
interest. It may, then, be said, under the authority of that case, that this court may review the
determination of the attorney general not to bring action in the name of the state; that such
review may be had upon application of a relator for leave to bring action; that upon such
review this court in a proper case may grant leave to a relator to bring action in the name of
the state upon his own relation, notwithstanding the refusal of the attorney general to act.
[Headnote 3]
In the case at bar the bringing of this action in the name of the state has not been referred
by relators to the attorney general. The determinations which the statutes contemplate he shall
make on behalf of the state have never been made. There is no action or determination which
this court is asked to review. We are, instead, placed in the position of bringing in the state as
a party by our own order in the first instance. This, we feel, is not proper.
Relators direct our attention to the cases of State ex rel. Mack v. Torreyson, 21 Nev. 517,
34 P. 870 and State ex rel. Bibb v. City of Reno, 64 Nev. 127, 178 P.2d 366, where, it would
appear, the relators, without resort to the attorney general, had followed the same procedure
as was here followed. In the first case the respondent was the attorney general himself. As
was there argued by counsel, it could hardly be assumed that he would consent to bring an
action against himself in the name of the state. This court simply did not require the doing of
what apparently would have been a vain act. In the second case the point under discussion
was never presented and did not have the consideration of the court.
In our view, therefore, the order of this court granting leave to the relators to commence
this action should, under the circumstances which now exist, be set aside.
under the circumstances which now exist, be set aside.
It is conceivable, however, that the defects in the procedure followed by relators may be
cured and the state properly brought in as party plaintiff. We do not, therefore, feel justified in
dismissing these proceedings without affording opportunity to relators to take appropriate
curative steps.
The motion to dismiss the action upon the second ground is denied without prejudice to its
future renewal and reserving to this court the right upon its own motion to dismiss these
proceedings upon the ground stated should the existing defects be not cured within thirty days
from date.
____________
70 Nev. 172, 172 (1953) State Ex Rel. Kline v. District Court
THE STATE OF NEVADA Upon the Relation of PAULINE KLINE, Relator, v. THE
EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, the Honorable
FRANK E. McNAMEE Presiding Judge Thereof, Respondent.
No. 3774
December 2, 1953. 264 P.2d 396.
Original petition for writ of mandamus directed to Honorable Frank McNamee, presiding
Judge of Department 1 of the Eighth Judicial District Court, Clark County, Nevada,
commanding him to call in another judge by reason of the filing of an affidavit of prejudice.
The Supreme Court, Badt, J., held that affidavit of prejudice need not state whether the
challenged judge's alleged prejudice is against affiant or in favor of opponent.
Peremptory writ issued.
George E. Marshall, of Las Vegas, for Relator.
Ralli, Rudiak & Horsey, of Las Vegas, for Respondent.
1. Judges.
Where defendant's counsel first appeared at hearing on plaintiff's motion for temporary injunction
restraining demolishing of house, at which no matters were objected to or contested, and no orders were
issued except on stipulation, the hearing was not a hearing on contested matter, within statute which
requires that affidavits of prejudice be filed before hearing on contested matter in action, and affidavit filed
subsequently was timely. N.C.L.1931-1941 Supp., sec. 8407.
2. Judges.
Where defendant, after having filed affidavit of prejudice, filed motions directed to court, the later filings
did not waive defendant's right to disqualify judge. N.C.L.1931-1941 Supp., sec. 8407.
3. Judges.
The essence of recusation is the possession by the judge of an attitude which may impair his impartiality
in the cause before him.
4. Judges.
Under statute requiring that affidavit of prejudice allege that judge has bias or prejudice either against
affiant or in favor of opposite party, affidavit which stated that judge's bias was either against the affiant or
in favor of opponent was sufficient. N.C.L.1931-1941 Supp., sec. 8407; 28 U.S.C.A., sec. 144.
OPINION
Relator's petition presents the questions (1) of the timeliness of the filing of an affidavit of
prejudice under our statute, (2) the sufficiency of the affidavit, and (3) the question of implied
waiver of the right to insist upon the disqualification.
Section 8407, N.C.L.1931-1941 Supp., under whose provisions the matter must be
determined, reads in part as follows:
A judge shall not act as such in an action or proceeding: * * *.
Fifth, if either party to a civil action in the district court shall file an affidavit alleging that
the judge before whom the action is to be tried has a bias or prejudice either against him or in
favor of an opposite party to the action, such judge shall proceed no further therein, but either
transfer the action to some other department of the court, if there be more than one
department of said court in said district, or request the judge of some other district court of
some other district to preside at the hearing and trial of such action.
Every such affidavit must be filed before the hearing on any contested matter in said
action has commenced, * * *.
Was the affidavit in question filed before the hearing on any contested matter in said
action had commenced?
Relator was defendant in an action pending in said district court. On application of the
plaintiffs the court had entered a temporary restraining order restraining the demolishing of a
certain structure, and had noticed their motion for a temporary injunction. At 10:00 a. m.,
August 12, 1953, the time set for the hearing of such motion, the court announced the same.
Defendant's counsel then asked that the record show that he appeared for the defendant (the
defendant's first appearance) and stated that he would like to make a preliminary motion. He
then moved the association of a New York attorney. Counsel for plaintiffs announced that
plaintiffs had no objection but the court denied the motion for its own reasons. Counsel for
plaintiffs then filed a substitution of attorneys and handed to defendant's attorney a certified
copy of the plaintiffs' second amended complaint, which had just been filed by leave of court.
Defendant's attorney then inquired of the court: Are we proceeding on the second amended
complaint? and the court replied: We will when you get ready, but I realize that it has taken
you by surprise. If you wish to have the matter continued . Defendant's counsel then asked
the court to indulge him for 15 or 20 minutes to permit him to make a preliminary
examination of the second amended complaint. "* * * I could determine then whether I
would want to move against it or whether we would want to proceed in this matter."
or 20 minutes to permit him to make a preliminary examination of the second amended
complaint. * * * I could determine then whether I would want to move against it or whether
we would want to proceed in this matter. The court declared a recess. Some 25 minutes later
the parties returned to the courtroom, court was reconvened and the following occurred
according to the clerk's minutesno reporter being then present: On stipulation of counsel
by the court ordered that the temporary restraining order heretofore issued herein shall remain
in force until such time as a motion to vacate same has been ruled on by the court herein.
Further ordered that the defendant be permitted 15 days in which to plead to the second
amended complaint filed herein. Court then adjourned. Two days later, on August 14, 1953,
defendant filed her affidavit of prejudice with counsel's certificate that the same was filed in
good faith and without purposes of delay, and paid the statutory $25 fee. On August 18 the
plaintiffs served and filed their motion to strike the affidavit, and on September 11 such
motion was heard and submitted and the same was granted upon the ground that the affidavit
was not timely filed.
[Headnote 1]
Unless the defendant, relator herein, was precluded by reason of the fact that the hearing
on a contested matter in said action had commenced, the judge was deprived of all discretion
in the matter and it was his statutory duty to proceed no further. State ex rel. Stokes v. District
Court, 55 Nev. 115, 27 P.2d 534. No cases in point have been cited by either party.
Respondent insists that when the parties appeared in court in response to the notice and the
court announced the case, the hearing commenced, and it was too late, under the statute, to
file an affidavit of prejudice. But the parties had not even announced that they were ready to
proceed with the hearing. Preliminary matters as to establishing who were counsel of record
in the case and as to the recess to permit counsel for defendant an opportunity to examine
the second amended complaint were all without objection or contest.
recess to permit counsel for defendant an opportunity to examine the second amended
complaint were all without objection or contest. The orders that followed were made upon
stipulation. In no sense are we able to say with any logic that the hearing of a contested matter
in the action had commenced. Accordingly the filing was timely under the statute.
[Headnote 2]
It is next contended by respondent that the relator's desire to disqualify the judge was
waived by her having thereafter filed certain motions. These, however, were addressed to the
court and not to the judge nor were they ever presented, argued or submitted. They did not, in
our opinion, constitute a waiver.
Respondent's next attack is upon the sufficiency of the affidavit. As noted, the allegation
required by the statute is that the judge has a bias or prejudice either against him or in favor
of an opposite party to the action. The affidavit filed by the defendant alleged that the judge
has a bias or prejudice either against her, or in favor of plaintiffs in said action. Relator
contends that this affidavit, in its alternative wording, failing to allege definitely a bias or
prejudice in favor of the plaintiffs or a bias or prejudice against the defendant, alleges neither
and therefore fails to accomplish what the statute prescribes. We agree that a construction
of the statute is called for. No authorities in point have been cited.
[Headnote 3]
The essence of recusation is the possession by the judge of an attitude which may impair
his impartiality in the cause before him. Assuming that attitude to exist, whether it be one of
prejudice against one litigant or, on the other hand, be one of bias or favor towards the other
litigant would seem to be of little moment. In either event the result would be the samelack
of impartiality.
[Headnote 4]
Our statute, however, makes reference to such a distinction. Did the legislature intend that
the affidavit shall specify in which direction the bias or prejudice lay? If so the affidavit in the
case before us would appear to be insufficient.
The language in question appears to have been taken from the federal statute. 28 U.S.C.A.,
sec. 144. That statute, however, also specified that the bias or prejudice must be personal
and that facts and reasons in support of the charge must be stated. Our statute has eliminated
both of these features and it is, therefore, difficult to see the significance of any specification
of the direction of the bias or prejudice.
Our original statute (considered in State ex rel. Beach v. District Court, 53 Nev. 444, 5
P.2d 535) simply required the assertion that on account of bias, prejudice or interest of the
judge the affiant could not obtain a fair and impartial trial. This remains the heart of the
question. Under neither the original nor the present statute need facts and reasons be stated in
support of the charge. A specification of the direction of the bias or prejudice without such
facts and reasons certainly could add nothing to the imputation for the disqualification of
the judge. See Clover Valley Lumber Co. v. District Court, 58 Nev. 456, 83 P.2d 1031, 1034.
The legislature, then, may not have intended by the language in question to require such a
specification, but simply to tie the bias and prejudice to the litigation at hand. This would
appear to be the more reasonable view. The language in question, then, would in effect be the
equivalent of the former reference to a fair and impartial trial. Without such language in one
form or the other there would be no indication that the bias and prejudice with which the
judge was charged related to the cause.
If this be so then the assertion in the disjunctive cannot be said to be meaningless, or to be
no imputation whatsoever.
whatsoever. The assertion simply is that bias or prejudice exists which, since it concerns the
litigants, concerns the litigation at issue.
It is ordered that the respondent judge proceed no further in said action, but either transfer
the action to some other department of the court or request the judge of some other district
court of some other district to preside at the hearing and trial of said action, with due regard
to the provisions of sec. 8407.02, N.C.L.1931-1941 Supp.
____________
70 Nev. 178, 178 (1953) Hearst Corp. v. Zenoff
THE HEARST CORPORATION, a Corporation, Plaintiff and Appellant, v. MORITZ M.
ZENOFF, Also Known as MORRY M. ZENOFF, Doing Business as BOULDER CITY
NEWS, Defendant and Respondent.
No. 3753
December 2, 1953. 263 P.2d 583.
Appeal from the Eighth Judicial District Court, Clark County; Taylor H. Wines, Presiding
Judge, Dept. No. 1.
Action to recover an amount allegedly due for supplying wire news service and for
damages for breach of contract in failing to allow plaintiff to continue its obligations under
the contract. The Eighth Judicial District Court, Department 1, Clark County, Taylor H.
Wines, Presiding Judge, entered judgment for plaintiff on cause of action to recover for
services already rendered and ordered judgment for defendant on cause alleging defendant
had prevented plaintiff from carrying out the remainder of the contract. The plaintiff
appealed. The Supreme Court, Eather, C. J., held, inter alia, that evidence did not support
finding of constructive fraud by plaintiff in negotiating agreement with defendant.
Affirmed in part and reversed in part, and remanded with instructions.
C. D. Breeze, Las Vegas, Attorney for Plaintiff and Appellant.
David Zenoff, Las Vegas, Attorney for Defendant and Respondent.
1. Newspapers.
In action to recover for wire news service furnished defendant under a five-year contract, evidence was
sufficient to sustain finding of trial court that there was an agreed suspension of service after 9 1/2 weeks
and that recovery for services rendered should be limited to that period.
2. Newspapers.
In action to recover damages for the profit plaintiff would have made under five-year contract to deliver
wire news service to defendant, evidence was insufficient to support finding of trial court that there was
constructive fraud on plaintiff's part in negotiating agreement with defendant.
OPINION
This is an appeal from judgment of the Eighth judicial district court of the State of Nevada
in and for the county of Clark, from all those portions of the judgment entered on the 2lst day
of November, 1951, partly in favor of plaintiff and partly in favor of defendant, as hereinafter
specified, to-wit: Plaintiff appeals from:
1. That portion of said judgment which awards to plaintiff the sum of one hundred twenty
dollars ($120), and no more, on plaintiff's second cause of action,
2. From that portion of said judgment which denies to plaintiff any recovery of damages
on plaintiff's third cause of action, and
3. From that portion of said judgment which awards the costs to defendant.
For convenience the parties will be designated herein as plaintiff and defendant
respectively.
The plaintiff is the proprietor of a news service known as International News Service. The
defendant is the owner and proprietor of a newspaper doing business as Boulder City News.
On September 23, 1948, the parties entered into a written agreement whereby plaintiff
undertook to furnish to defendant its seven-night leased wire report delivered by printer
telegraph machine for the period of five years after September 30, 1948, for an agreed
consideration of $60 a week.
Subsequently at the request of the defendant the contract was suspended to September 1,
1949, it being agreed that the period of suspension was to be added to the original term of the
agreement. Upon expiration of the period of suspension, plaintiff attempted to reinstall the
service and was prevented from doing so by defendant, whereupon this action was brought.
Plaintiff alleged three causes of action. There is no issue as to the first. The second and
third were as follows:
2. For a balance of $540 alleged to be due for news service actually furnished by plaintiff
to defendant prior to suspension of its contract. Plaintiff alleged that the service was furnished
by it to defendant from September 30, 1948 to January 22, 1949, a period of 16 1/2 weeks.
However, defendant contended that service was suspended about the first of December, 1948,
thereby shortening the period to 9 1/2 weeks, and the trial court computed the balance due on
that basis and allowed plaintiff judgment for $120 plus interest at the rate of 7 percent per
annum from December 1, 1948. Plaintiff appeals from this judgment.
3. Plaintiff alleged damages in the sum of $3,917.91 being the gain or profit it would have
realized at the rate of $16.09 per week for 243 1/2 weeks, the balance of the term of five years
specified in the agreement dated September 23, 1948, after deducting the period of 16 1/2
weeks during which it was alleged the service was actually furnished, had defendant
permitted plaintiff to perform its contract to the end of the specified term.
The trial court found that service was furnished for only 9 1/2 weeks before it was
suspended at defendant's request; that resumption of service was prevented by defendant;
that plaintiff, therefore, was entitled to all the benefits it would have obtained had the
agreement been fully performed by both parties; and that plaintiff's method of computing
its cost of performing its contract was proper.
request; that resumption of service was prevented by defendant; that plaintiff, therefore, was
entitled to all the benefits it would have obtained had the agreement been fully performed by
both parties; and that plaintiff's method of computing its cost of performing its contract was
proper. Plaintiff's cost of performing its contract was established at $43.91 per week,
resulting in a gain or profit to plaintiff of $16.09 per week out of the agreed rate of $60 per
week to be paid by defendant. The trial court, however, refused to render judgment for
plaintiff on its third cause of action, on the ground that there was constructive fraud on its
part in negotiating its agreement with defendant, although no actual fraud was shown.
Just prior to the trial, defendant had made an offer of $1,119.80, in settlement of plaintiff's
claims, and as the sum of the judgment to plaintiff on its first and second causes of action was
less than that amount, the trial court allowed defendant his costs. Plaintiff challenges the trial
court's finding of constructive fraud.
[Headnote 1]
Upon the second cause of action, the testimony as to when the suspension of services
occurred is conflicting, but there is, we believe, sufficient evidence to support the court's
finding that suspension of service occurred about the first of December, 1948. Accordingly,
judgment upon that cause of action must be affirmed.
Relative to the third cause of action, the following finding was made by the trial court:
That at the time the defendant was negotiating with the plaintiff for the news service to be
furnished by the plaintiff, the defendant was publishing a daily newspaper and had need of a
daily news service; that the publishing of a daily newspaper was at that date on an
experimental basis; that the defendant discussed this circumstance with the plaintiff's agent
and pointed out to him the possibility that adverse conditions might compel him to resume
publication of a weekly newspaper, thus eliminating the need for a dally news service; that
defendant stated that his position at that time necessitated the conditioning of his
promise to the plaintiff on his need; that the plaintiff's agent then stated that it would be
a 'gamble' for all parties concerned, and encouraged the defendant to give it a 'trial', and
assured defendant that the plaintiff would work with him; that the possibility of the
defendant being unable to continue a daily publication of his newspaper was discussed at
the time of the signing of the agreement, but prior to the actual execution of said
agreement."
thus eliminating the need for a dally news service; that defendant stated that his position at
that time necessitated the conditioning of his promise to the plaintiff on his need; that the
plaintiff's agent then stated that it would be a gamble' for all parties concerned, and
encouraged the defendant to give it a trial', and assured defendant that the plaintiff would
work with him; that the possibility of the defendant being unable to continue a daily
publication of his newspaper was discussed at the time of the signing of the agreement, but
prior to the actual execution of said agreement.
[Headnote 2]
We have carefully examined the transcript of the testimony, particularly that of defendant
and of plaintiff's representative one William Stewart, Jr., who came to Las Vegas and
conferred with defendant by telephone upon the negotiation of the agreement in question.
Their testimony is substantially in accord; there is no conflict. In many important respects
their testimony does not support the quoted finding.
It appears that defendant, who was publishing the Boulder City News as a weekly
newspaper, wanted to try publication on a daily basis, notwithstanding the prior owner had
been unsuccessful in his attempt to publish it as a daily newspaper. Defendant communicated
with International News Service (owned by plaintiff) as he knew that he would have to have
daily wire news service for his daily. Stewart was sent to confer with defendant, but appears
from the evidence to have been skeptical throughout the transaction and actually discouraged
defendant from taking the contract. There was no urging of defendant by Stewart. The
situation as disclosed by the evidence was that defendant was trying to get the service, not
that Stewart was trying to sell it to him. We can find nothing whatever in the evidence to
indicate that Stewart made any effort at all to get defendant to take the contract, but quite the
contrary.
There is no evidence whatsoever to support the finding that defendant "pointed out to
[plaintiff's agent] the possibility that adverse conditions might compel him to resume
publication of a weekly newspaper, thus eliminating the need for a daily news service;
that defendant stated that his position at that time necessitated the conditioning of his
promise to the plaintiff on his need."
that defendant pointed out to [plaintiff's agent] the possibility that adverse conditions might
compel him to resume publication of a weekly newspaper, thus eliminating the need for a
daily news service; that defendant stated that his position at that time necessitated the
conditioning of his promise to the plaintiff on his need. The contract itself was
unconditioned in such respect.
The only representation or assurance which can be found made by Stewart to the defendant
is the statement, Well, it looks pretty dark but give it a whirl and we'll see what happens.
This can hardly be read to constitute any assurance that if the risk assumed by the defendant
did not meet with success the defendant would be relieved of his contractual obligations. The
opinion of the court below indicated that it regarded as significant an assurance that the
plaintiff would work with the defendant, which assurance, if it exists in the record, is only
to be found in the quoted statement. We cannot regard this assurance as one to the effect that
if attempts to work out an adjustment should fail the defendant would then be relieved of all
further responsibility. The only significance of such an assurance would appear to be that
efforts would be made to work out any difficulties which might arise. The record would
indicate that such efforts were made, to-wit, the suspension of the contract to September 1,
1949. The suspension was accompanied by an express agreement that the period would be
extended to the original term of the agreement. Defendant not only agreed to this arrangement
at the time, but at the trial expressed himself as being very well pleased with it. So that if
plaintiff owed defendant any special consideration on any ground whatever, it appears to have
fully discharged its obligation in that regard.
As there is no dispute respecting the amount of plaintiff's damages per week, established at
$16.09 per week, and as it has been adjudged that actual service was furnished for only 9 1/2
weeks out of a total of 260 weeks specified by the agreement, it follows that plaintiff's
damages are $16.09 per week for 250 1J2 weeks, or $4,030.54.
damages are $16.09 per week for 250 1/2 weeks, or $4,030.54.
The judgment appealed from is affirmed as to plaintiff's second cause of action, and is
reversed as to plaintiff's third cause of action. The cause is remanded to the lower court with
instructions that judgment be entered for plaintiff on its third cause of action in the sum of
$4,030.54, with costs to plaintiff in both courts.
____________
70 Nev. 184, 184 (1953) Katleman v. Katleman
IN THE MATTER OF THE ESTATE OF JACOB KATLEMAN, Also Known as JAKE
KATLEMAN, Deceased; LIBERTY KATLEMAN, One of the Heirs of the Estate, and
JENNIFER LYNN KATLEMAN, Minor Heir of the Above-Entitled Estate, By and Through
WILLIAM G. RUYMANN, Her Attorney, Appointed by the Above-Entitled Court,
Appellants, v. BELDON R. KATLEMAN, Purported Purchaser of Personal Property, and
FIRST NATIONAL BANK OF NEVADA, Coadministrator, Respondents.
Nos. 3731 and 3732
December 15, 1953. 264 P.2d 843.
Motion to dismiss appeal from order of the Eighth Judicial District Court, Clark County;
A. S. Henderson, Judge, Department No. 2.
Proceeding in probate of solvent estate. From an order confirming the sale of certain assets
which constituted part of estate, the heirs appealed. The Supreme Court, Badt, J., held that
fact that heirs accepted award of family allowance did not estop them from appealing from
order confirming sale, even though estate, after award was made, did not contain liquid assets
sufficient to reimburse purchasers should order be reversed.
Motion denied.
See also 70 Nev. ___, 269 P.2d, 257.
Taylor & Gubler, of Las Vegas, for Appellant Liberty Katleman.
William G. Ruymann, of Las Vegas, for Appellant Jennifer Lynn Katleman, a minor.
A. W. Ham & A. W. Ham, Jr., of Las Vegas, Woodburn, Forman & Woodburn, of Reno,
and Leo K. Gold, of Beverly Hills, California, for Respondent Beldon R. Katleman.
Jones, Wiener & Jones, of Las Vegas, for Respondent First National Bank of Nevada.
1. Estoppel.
A party who has received and enjoyed fruits of an order is estopped from attempting to destroy the order.
Where assets of estate are amply sufficient to pay all debts and expenditures incident to administration,
the estate is solvent within provisions of statute having to do with family allowance. N.C.L. Supp.
1931-1941, secs. 9882.223 and 9882.226.
Where condition of estate was such as to authorize family allowances, probate court was not deprived of
power to make allowance by reason of fact that administrators did not have in their hands sufficient money
to pay allowances. N.C.L. Supp.1931-1941, secs. 9882.223 and 9882.226.
Where assets which constituted part of solvent estate in probate were sold, and district court thereafter
made award of family allowance, acceptance of the allowance did not estop recipients from appealing from
order confirming sale, even though estate, after award was made, did not contain liquid assets sufficient to
reimburse purchasers should order be reversed.
OPINION
On Motion to Dismiss Appeal
Respondents move to dismiss the appeal of appellants from an order confirming a sale of
personal property and from an order denying a new trial of said issue.
The motion is predicated upon the contention that appellants accepted the benefits of the
orders appealed from and thereby waived their rights of appeal and are precluded from
prosecuting their appeal.
Liberty Katleman, surviving widow of Jacob Katleman, deceased, and the First National
Bank of Nevada were appointed coadministrators of the estate of Jacob Katleman, deceased,
on July 6, 1950. The assets of the estate included 495 shares of the capital stock of Elranco
Inc. listed in the third account as of the value of $96,368.88, and a promissory note in the sum
of $81,631.12 from Elranco Inc. payable to deceased. A sale of said stock in October, 1951,
for $96,368.86 was set aside by the court on account of irregularities, and the said purchase
price, together with interest, was on order of court repaid to the purchasers. This caused an
overdraft in the administrators' bank account in the amount of $37,276.37. A second public
sale was held in June, 1952, by the First National Bank of Nevada, one of the
coadministrators, which produced the sum of $184,500 for the said stock and the said
promissory note. Liberty Katleman objected to confirmation. On July 14, 1952 the sale was
confirmed and on September 10, 1952 an amended order of confirmation was filed.
Thereafter Liberty Katleman, as a surviving heir, and Jennifer Lynn Katleman, a minor heir,
through her attorney, moved for a new trial and for an order setting aside the confirmation.
From the amended order of confirmation and the adverse orders on the subsequent motions
this appeal was taken by Liberty Katleman and Jennifer Lynn Katleman.
Respondents have attached as exhibits to their motion to dismiss sundry proceedings of the
probate court. From these it appears that the coadministrators on January 14, 1953 filed a
petition for a family allowance in the sum of $750 per month for the support of the surviving
widow and minor heir. On February 3, 1953 the petition was granted as prayed and the
January and February allowances were paid aggregating $1,500.
There were also paid by the administrators to one Mary Katleman, divorced wife of decedent,
an aggregate of $4,500 under the terms of a separation agreement that had been entered into
which provided for $500 monthly payments until the death or remarriage of the said Mary
Katleman. It appears further that without resorting to the proceeds of the sale of the corporate
stock and note the estate would not have possessed sufficient funds to make these payments.
It is further pointed out by respondents that in the event of a reversal of the order confirming
sale and a consequent order setting such sale aside, the stock and note would have to be
returned to the administrators by the purchaser and the proceeds of the sale refunded to the
purchaser by the administrators.
[Headnote 1]
Respondents then assert that in order thus to place the parties to the sale in the position
occupied by them, respectively, prior to confirmation, appellants would have to return the
moneys received as a family allowance and would also have to recover and return the moneys
paid to the former wife of decedent. No authorities are cited to support this assertion. It is
based entirely upon the contention that the moneys received as family allowance and the
moneys paid on the obligation to decedent's former wife were all made out of the proceeds of
the sale, which appellants seek to set aside by this appeal. In other words, respondents insist
that the situation above described brings appellants within the rule that, having received and
enjoyed the fruits of the orders, they are estopped from attempting to destroy these same
orders.
The application of the rule is not new to this court. In Afriat v. Afriat, 61 Nev. 321, 117
P.2d 83, 85, this court reaffirmed the rule enunciated in State v. Central Pacific Railroad Co.,
21 Nev. 172, 26 P. 225 (rehearing denied 21 Nev. 178, 26 P. 1109) and affirmed in
Cunningham v. Cunningham, 60 Nev. 191, 102 P.2d 94, 105 P.2d 398, as follows: "Where a
reversal upon the plaintiff's appeal would require him to refund to the defendant money
or property which he has obtained under the judgment, there is reason for holding that
the acceptance of the benefits of the judgment is a waiver of the right to appeal.
Where a reversal upon the plaintiff's appeal would require him to refund to the defendant
money or property which he has obtained under the judgment, there is reason for holding that
the acceptance of the benefits of the judgment is a waiver of the right to appeal. Having
elected to receive the fruits of the judgment, he is estopped from attempting to destroy the
very foundation of his right to receive them. But where a reversal would not work this result,
where his right to what he has received would still remain intact, it is difficult to conceive
why he should not be allowed to take what is now, and always will be, his, and still prosecute
his claim for more.
The court in the Afriat case then added:
It seems apparent that a reversal of the judgment in this case would not require the
appellant to refund the money received for additional attorneys' fees and for maintenance
during the pendency of the action, and hence such acceptance is not a waiver of her right to
appeal.
The application of this rule returns us to respondents' contention that a setting aside of the
sale, with its consequent return of the purchase price to the purchaser, would in turn require
the repayment of the family allowance to the administrators and likewise the recovery and
repayment to the administrators of the sums paid to the former wife. Respondents seek to
support such position because of the lack of cash in the hands of the administrators and
because of the bank overdraft of $37,276.37 resulting from the setting aside of the first sale of
the Elranco stock. They assert that the estate was insolvent.
The record however does not indicate such insolvency. The third account of the
administrators shows assets which had come into their hands valued at $325,244.96, from
which disbursements had been made to the extent of $147,813.39, leaving a net estate of
$177,431.57, in addition to further incoming assets aggregating several thousand dollars
more. It is nowhere suggested that the cost of administration, payment of creditors' claims,
judgments, family allowance or any other necessary disbursements will even approach an
exhaustion of the net estate.
cost of administration, payment of creditors' claims, judgments, family allowance or any other
necessary disbursements will even approach an exhaustion of the net estate. Indeed, with time
for presentation of creditors' claims long since expired, it appears from the third account all
creditors' claims have been paid with the exception of items aggregating some $14,000 for the
benefit of Mary Katleman and a further contingent claim of $13,845.26, besides the
continuing liability of the estate for the $500 monthly payments to Mary Katleman and
besides a possible liability for further estate taxes in the sum of $6,128.63 claimed to be due
the United States but disputed by the administrators. To this of course must be added the fees
of the administrators and their attorneys.
[Headnote 2]
Where the assets are amply sufficient to pay all debts and expenditures incident to
administration, the estate is solvent within the provisions of our sections having to do with
family allowance. In re Ehler's Estate, 115 Cal.App. 403, 1 P.2d 546, 548. As was said in that
case: In the ordinary estate offered for probate, there is rarely either sufficient cash on hand
or income with which to pay off outstanding indebtedness, and an executor ordinarily is
forced to sell off part of the estate in order to secure the funds necessary to pay claims and
demands outstanding. Indeed such a situation appears to be contemplated by our statutes.
Section 9882.223, N.C.L.1931-1941 Supp., fixes the order in which the debts of the estate
shall be paid: funeral expenses, expenses of the last illness, family allowance, debts having
preference by laws of the United States, certain wage claims, judgments and mortgages, and
lastly all other demands. Section 9882.226 id. has particular application. It requires the
executor or administrator to pay the funeral expenses, the expenses of the last illness and the
allowance made to the family of the deceased as soon as he has sufficient funds in his hands.
[Headnotes 3, 4]
If the condition of the estate was such as to authorize the family allowance made, the court
was not deprived, and would not have been deprived, of the power to make such allowance
by reason of the fact that the administrators did not have in their hands sufficient money to
pay the same. In re Carriger's Estate, 108 Cal. xv (not reported), 41 P. 700. The validity of the
court's order of family allowance was not more strongly supported by the administrators'
possession of the proceeds of the sale than it would have been by the administrators'
possession of the stock prior to the sale. By the same token neither the validity of the order of
family allowance nor the legal effect of the payment of such family allowance by the
administrators or of the acceptance thereof by the widow will be affected by either the
affirmance or reversal of the order confirming sale. If the order is affirmed there remains no
problem as to that incident of the administration. If the order is reversed and the parties to the
sale must be restored to their former status, the problem as to how this will be accomplished
is one for the administrators and the probate court. The conclusion inevitably follows that the
widow's acceptance of the family allowance payments was an acceptance thereof out of the
proceeds of properties of the whole estate. Assuming her complete knowledge of the fact that
the particular moneys received by her as family allowance were part of the proceeds of the
sale of the Elranco stock, her acceptance thereof cannot logically be said to be such an
acceptance of the fruits or benefits of the order confirming sale as to preclude her appeal from
that order.
The minor heir, appearing through her counsel, contends that in any event she cannot be
bound, nor can she be precluded from appealing by reason of acceptance of family allowance
by her mother and legal guardian. In view of the foregoing, however, it becomes unnecessary
to pass on this phase of the motion.
We have given consideration to the authorities cited by respondents but they do not
affect our conclusions as above recited.
by respondents but they do not affect our conclusions as above recited.
The motion to dismiss the appeal is denied.
____________
70 Nev. 191, 191 (1953) Bynum v. Sands, Inc.
HARVEY A. BYNUM, Appellant, v. SANDS,
INC., Respondent.
No. 3761
December 18, 1953. 264 P.2d 846.
Appeal from the Eighth Judicial District Court, Clark County; Frank McNamee, Judge,
Department No. 1. Action to recover possession of undivided one fifth interest in certain
lands occupied by defendant and for rents and profits received by defendant from the use and
occupancy of the premises. From a judgment for defendant, the plaintiff appealed. The
Supreme Court, Eather, C. J., held that under contract, which limited plaintiff's interest in
partnership to 20 percent of profits of partners after initial investment of $62,500 had been
paid to partners, and which entitled plaintiff to receive 20 percent interest in partnership upon
its dissolution, plaintiff, upon dissolution of partnership, sale of assets to one partner, and
latter's lease of partnership property to defendant, could not recover 20 percent of partnership
property from defendant, in absence of proof of winding up of partnership, payment of
$62,500 to surviving partner, and existence of a surplus.
Affirmed.
Dotson and Earl, R. Dale Cook, and George E. Marshall, of Las Vegas, for Appellant.
Harry E. Claiborne, of Las Vegas, for Respondent.
1. Tenancy in Common.
Where contract limited plaintiff's interest in partnership to 20 percent of profits of original partners after
initial investment of $62,500 had been paid to partners, and entitled plaintiff to receive 20 percent interest
in partnership upon its dissolution, and one partner's interest was sold to the other who
leased partnership property to defendant, plaintiff did not become tenant in common
of defendant in the leasehold.
solution, and one partner's interest was sold to the other who leased partnership property to defendant,
plaintiff did not become tenant in common of defendant in the leasehold. N.C.L.Supp.1931-1941, sec.5028
et seq.
2. Partnership.
Where contract limited plaintiff's interest in partnership to 20 percent of profits of partners after initial
investment of $62,500 had been paid to partners and entitled plaintiff to receive 20 percent interest in
partnership upon its dissolution, under Uniform Partnership Act plaintiff's property rights were an interest
in the partnership, which was his share of the profits and surplus. N.C.L.Supp.1931-1941, secs. 5028.23
and 5028.25.
3. Partnership.
Where contract limited plaintiff's interest in partnership to 20 percent of profits after initial investment of
$62,500 had been paid to partners, entitled plaintiff to receive 20 percent interest in partnership upon its
dissolution, plaintiff, upon dissolution of partnership, sale of assets to one partner, and latter's lease of
partnership property to defendant, could not recover 20 percent of partnership property from defendant in
absence of proof of winding up of partnership, payment of $62,500 to surviving partner, and existence of a
surplus. N.C.L.Supp.1931-1941, secs. 5028 et seq., 5028.23, 5028.25, 5028.26 and 5028.37.
OPINION
This is an appeal from the judgment of the Eighth Judicial District Court of the State of
Nevada, in and for the County of Clark, based upon undisputed facts and the construction of a
written instrument in an action brought by the appellant, Harvey A. Bynum, to recover
possession of an undivided one-fifth interest in and to certain lands located in Clark County,
Nevada, occupied by respondent, and for rents and profits received by the respondent from
the use and occupancy of said premises. The trial court's judgment denied all relief asked by
plaintiff.
The facts are substantially these: On the 21st day of November, 1945, a copartnership
consisting of George W. Frisby and Dave Anderson leased certain lands located in Clark
County, Nevada, for a term of ten years.
years. On April 1, 1946, the said Frisby and Anderson, copartners doing business under the
name of Club Kit Carson, entered into the following agreement with appellant, Harvey A.
Bynum:
Agreement
This Agreement made and entered into as of the 1st day of April, 1946, by and between
George W. Frisby and Davie Anderson, co-partners doing business under the name of Club
Kit Carson,' Parties of the First Part, and Harvey A. Bynum, Party of the Second Part,
Witnesseth:
Recitals:
The parties of the First Part have a lease dated November ........ 1945, from Nate Mack
and wife, and James S. Fulcher and wife, covering on a portion of the Northwest Quarter of
Section 16, Township 21, S., Range 61 E., M.D.B. and M., in the County of Clark, State of
Nevada, upon which leased parcel of land they have constructed a club building consisting of
bar room, casino and dining hall, known as Club Kit Carson.'
The Party of the Second Part has rendered services to the Parties of the First Part and is to
be compensated therefor.
The Parties of the First Part have contributed to their co-partnership as capital therefor,
the sum of Sixty-two Thousand Five Hundred ($62,500.00) Dollars.
The Parties of the First Part desire to assign to the Party of the Second Part a twenty
percent (20%) interest in said co-partnership, upon the terms and conditions hereinafter
stated, to-wit:
Now, Therefore, It Is Agreed Between the Parties Hereto, as follows:
1. The Parties of the First Part do hereby sell, assign, transfer and set over to the Party of
the Second Part, a twenty percent (20%) interest of, in and to that certain co-partnership
existing between the Parties of the First Part and known as and called 'Club Kit Carson.'
the First Part and known as and called Club Kit Carson.'
2. It is understood and agreed between the parties hereto that the party of the Second Part
is not a partner with the Parties of the First Part in said Club Kit Carson', nor shall said
Second Party be permitted to interfere in the management or administration of the partnership
business and affairs or to acquire any information or account of partnership transactions, or to
inspect the partnership books, but shall be entitled to receive, in accordance with this
contract, twenty percent (20%) of the profits to which the Parties of the First Part would
otherwise be entitled, and in case of a dissolution of said partnership, the Party of the Second
Part shall be entitled to receive from the Parties of the First Part said twenty percent (20%)
interest, and may require an account from the date of the last account agreed to between the
Parties of the First Part.
3. It is understood and agreed that before there shall be any division of profits between
the Parties of the First Part and the Party of the Second Part, the said Parties of the First Part
shall be entitled to deduct and retain the said sum of $62,500.00 so advanced by them as
aforesaid, and said sum shall be considered as a loan from the said First Parties to the
partnership, but that after said First Parties shall have received from said partnership said sum
of $62,500.00, then all profits from the partnership shall be divided, twenty percent (20%) to
the Party of the Second Part, and eighty percent (80%) to the Parties of the First Part.
4. The Parties of the First Part have this day paid to the Party of the Second Part the sum
of Two Thousand Dollars ($2,000.00), which shall be considered as an advance on said share
of the profits, and the Parties of the First Part shall in any settlement hereafter made with said
Second Party, be entitled to a credit of $2,000.00.
5. It is understood and agreed that all other agreements between the parties hereto are
terminated and cancelled as of the date of this agreement.
In Witness Whereof, the parties hereto have hereunto set their hands as of the day and
year first above written.
Dave Anderson
George W. Frisby
Harvey A. Bynum
Party of the Second Part.
In November, 1949, the copartnership was terminated and dissolved by a written
agreement under the terms of which Anderson, for and in consideration of the sum of
$10,000, sold all of his interest in and to the assets and property of said partnership unto
Frisby, the said Frisby assuming all the outstanding liabilities and obligations of the said
partnership.
On the l2th day of August, 1950, Frisby and his wife leased said property to respondent for
a period of five years and three months.
[Headnote 1]
Appellant strongly urges that the instrument in writing here under consideration was
misconstrued by the lower court. He contends here, as he did in the lower court, that by the
terms of the agreement he became vested with an undivided 20 percent interest in the
leasehold held by the partnership, and that since he has never released or conveyed such
interest, he is a tenant in common with respondent here in the leasehold heretofore assigned
by Frisby, one of the cotenants.
Such is not the effect of the agreement under the provisions of the Uniform Partnership
Act, secs. 5028, et seq., N.C.L. Supp. 1931-1941.
[Headnote 2]
As to the property rights of a partner, sec. 5028.23 provides: The property rights of a
partner are (1) his rights in specific partnership property, (2) his interest in the partnership,
and (3) his right to participate in the management.
It is to be noted that the assignment to appellant was of an interest in the partnership, the
second property right specified by the quoted section.
right specified by the quoted section. Sec. 5028.25 defines this right as follows:
A partner's interest in the partnership is his share of the profits and surplus, and the same
is personal property.
With reference to an assignment of this right, sec. 5028.26 provides:
(1) A conveyance by a partner of his interest in the partnership does not of itself dissolve
the partnership, nor, as against the other partners in the absence of an agreement, entitle the
assignee, during the continuance of the partnership, to interfere in the management or
administration of the partnership business or affairs, or to require any information or account
of partnership transactions, or to inspect the partnership books; but it merely entitles the
assignee to receive in accordance with his contract the profits to which the assigning partner
would otherwise be entitled. (2) In case of a dissolution of the partnership, the assignee is
entitled to receive his assignor's interest and may require an account from the date only of the
last account agreed to by all the partners.
The similarity in phraseology between this last quoted section and the agreement itself
makes it quite clear that this was the extent of the assignment intended.
With reference to rights upon dissolution, sec. 5028.37 provides in part: When
dissolution is caused in any way, except in contravention of the partnership agreement, each
partner as against his co-partners and all persons claiming through them in respect of their
interests in the partnership, unless otherwise agreed, may have the partnership property
applied to discharge its liabilities, and the surplus applied to pay in cash the net amount
owing to the respective partners.
[Headnote 3]
It is clear, then, that by the agreement appellant received a right upon dissolution limited to
one-fifth of the partnership profits. See State v. Elsbury, 63 Nev. 463, 175 P.2d 430, 169
A.L.R. 364. No showing is made by him as to the winding up of the partnership or
payment of partnership obligations.
by him as to the winding up of the partnership or payment of partnership obligations.
Specifically, it does not appear that the $62,500 obligation provided by paragraph three of the
agreement has been received by the surviving partner. Not only has appellant failed to
establish any right to specific property of the partnership but he has failed to establish the
existence of any surplus in which he is entitled to share.
Appellant strongly relies upon the case of Johnston v. De Lay, 63 Nev. 1, 158 P.2d 547,
161 P.2d 350. In that case it was conceded that Johnston and Ward were owners and tenants
in common, each owning an undivided one-half interest in the land in question. As we have
pointed out, such is not the case here.
The appellant strongly urges that the ruling of the Supreme Court of the State of Colorado,
in the case of Roberts v. Roberts, 113 Colo. 128, 155 P.2d 155, and upon rehearing, 118
Colo. 524, 198 P.2d 453, is here applicable. In our opinion, the two cases are not analogous.
In the above case, the court held that the agreement embodied every element necessary for the
formation and creation of a partnership, and that James E. Roberts, by virtue of said
agreement, was a partner in said business, and upon dissolution entitled to an accounting.
Appellant concedes that he was not a partner of Frisby and Anderson, and the agreement
conclusively establishes that he was not a partner.
We do not deem it necessary for us to consider here the rights appellant may have against
Frisby and Anderson. Whatever these rights may be, if any, they in no wise involve the
respondent.
For the reasons above stated, the judgment of the lower court is hereby affirmed with
costs.
On Petition for Rehearing
February 15, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 198, 198 (1953) Freeman v. Soukup
A. C. FREEMAN, Appellant, v. LOUIS
SOUKUP, Respondent.
No. 3741
December 28 1953. 265 P.2d 207.
Appeal from a judgment of the Second Judicial District Court, Washoe County,
Department No. 1, Hon. D. W. Priest of the Third District, presiding, awarding rescission of a
contract of purchase of real estate and recovery of the down payment and from an order
denying new trial. The Supreme Court, Badt, J., held that evidence sustained finding that
purchaser acted on alleged misrepresentation of vendor and that purchaser's own investigation
was not such as to prevent him from relying on alleged misrepresentation.
Judgment and order affirmed.
Samuel Platt, of Reno, for Appellant.
Oliver C. Custer, of Reno, Hardin Barry, of Susanville, California, and Richard Maxwell,
of Klamath Falls, Oregon, for Respondent.
1. Vendor and Purchaser.
If vendor of realty knows the facts, and purchaser is ignorant, and, to the knowledge of the vendor, the
purchaser relies on misrepresentations of vendor, purchaser is entitled to relief, though purchaser has made
an imperfect examination himself.
In action by purchaser for rescission of contract for purchase of ranch, on ground that vendor falsely
represented that hay produced on ranch was sufficient to feed 2,850 head of cattle, evidence sustained
finding that purchaser acted on alleged misrepresentation of vendor and that purchaser's own investigation
was not such as to prevent purchaser from relying on alleged misrepresentation.
The supreme court was precluded from saying on appeal that trial court should not have believed the
testimony of plaintiff.
What the supreme court might have found if the supreme court had been the original trier of the facts was
not pertinent to appeal.
Where purchaser of ranch, at time he made second payment to vendor, did not know that alleged
misrepresentation by vendor was untrue, such payment was not a waiver by purchaser of right to have
contract for purchase rescinded.
OPINION
The trial court awarded the plaintiff a judgment of rescission of a contract to purchase
certain ranch property from the defendant for $175,000 and for a return of plaintiff's $25,000
down payment, upon the ground of defendant's false and fraudulent misrepresentations of
fact, upon which plaintiff relied and which were made for the purpose of inducing plaintiff to
enter into the contract. Defendant has appealed from the judgment and from the order denying
new trial.
Although his 86-page opening brief lists nine assignments of error, discussed under 14
separate topic headings, it is apparent that his main contention is that there is entirely lacking
from the case made by plaintiff the essential element of plaintiff's reliance upon defendant's
representations. Appellant insists that the record shows without contradiction that
plaintiff-respondent relied upon record facts and his own personal investigation, and not upon
oral conversation or representation. Upon the facts of the case and for the reasons below
given, we hold that appellant's contention is unfounded, and that his other assignments of
error are without merit. We continue to refer to the parties as plaintiff and defendant
respectively.
On May 25, 1950 plaintiff and defendant entered into an agreement for the purchase by
plaintiff from defendant of the Smoke Creek Ranch and other ranch and range lands in the
vicinity owned by defendant in Washoe County, Nevada, and Lassen County, California, for
$175,000 and for the further purchase of defendant's livestock and equipment at a price to be
agreed upon later.
later. Plaintiff had 90 days to complete the purchase. The only written evidence of the
transaction was a check drawn by plaintiff to defendant for $25,000, on the back of which
was endorsed: This down payment of $25,000 on the Smoke Creek Ranch, balance of
$150,000 to be paid upon satisfactory examination of all papers and delivery title to me free
of all [indebtedness]. Stock & equipment to be sold on price agreed upon. Purchaser has
ninety [days] to complete purchase. Under this memorandum defendant endorsed his name
and cashed the check. Although no contract was ever entered into for the purchase of the
cattle, horses and equipment, it appeared that the entire deal for all of the real and personal
property would have involved a sum of over $400,000.
The execution of the $25,000 check and memorandum endorsed thereon was the
culmination of a number of meetings between the parties. Plaintiff was looking for a ranch
and cattle property and learned through a Reno realtor, in December, 1949, that defendant's
property was for sale. He telephoned defendant from Reno and pursuant to agreement met
him at the ranch next morning. He again visited the ranch with defendant in February, 1950.
The extent of his observation and examination of the property on those two occasions is
discussed later. Defendant first put a price of $340,000 on the ranch. He later reduced this to
$275,000, and still later to $175,000, with a $75,000 down payment. The final deal was, as
above noted, for $175,000 with a $25,000 down payment.
On May 31, 1950, pursuant to defendant's request for a further payment, plaintiff made out
a second $25,000 check and caused it to be mailed to defendant with an earnest money receipt
indicating that this was a further payment upon the ranch. On June 6 or 7, 1950 plaintiff again
visited the property with two expert and experienced ranch and livestock men and as a result
of this inspection and of their advice pursuant thereto, stopped payment on the check1 and
immediately thereafter gave defendant a written notice of the rescission of the contract
with a demand for a return of his $25,000 down payment, reciting as his reasons his
discovery of the falsity of sundry representations made by defendant concerning the
property.
stopped payment on the check
1
and immediately thereafter gave defendant a written notice
of the rescission of the contract with a demand for a return of his $25,000 down payment,
reciting as his reasons his discovery of the falsity of sundry representations made by
defendant concerning the property. Upon defendant's insistence upon the terms of the
contract, plaintiff commenced the action for rescission.
The specific items of alleged misrepresentation pleaded in plaintiff's second amended
complaint, upon which the issues were drawn, and the actual facts existing contrary to such
representations and the respective findings of the court with reference to each separate issue
may be summarized as follows:
(a) Plaintiff represented that the ranch had a Taylor Grazing permit
2
to run 2,850 head of
cattle on the public domain from April 1 to October 31 each year.
____________________

1
Defendant testifies that he refused to accept this second check because it was not in accordance with the
contract; that no further payment on the ranch was due at that time; that the only payment due was a payment on
the livestock, equipment, etc., if plaintiff concluded to purchase the same. The dispute on the point is immaterial
to the case. Plaintiff's drawing and forwarding the second check is important only insofar as it is claimed to be a
waiver of reliance upon defendant's representations, and a ratification of the contract. This is discussed later.

2
The various elements required for a cattle raising operation include (1) the ownership of a base property
furnishing sufficient feed to winter the cattle (including the required equipment); (2) the cattle herd; (3) range
land upon which the livestock graze during the grazing season. In the usual case such range land in this state is
public domain. Until the legislation of Congress known as the Taylor Grazing Act in 1934, U.S.C.A. Title 43,
Public Lands, Chap. 8A, sec. 315 et seq., there was a limited regulation of such grazing by state statutes enacted
under the state's police powers. See Nevada's Stock Watering Law of 1925, secs. 7979-7985, N.C.L.1929, and
its Grazing Law of 1931, sec. 5581, et seq., N.C.L.1931-1941 Supp., and earlier statutes restricting the grazing
of sheep, secs. 3999, 4003, N.C.L.1929, etc. After the adoption of the Taylor Grazing Law and the regulations of
the secretary of the interior made pursuant thereto (see Brooks v. Dewar, 60 Nev. 219, 106 P.2d 755; Brooks v.
Dewar, 61 S.Ct. 979, 313 U.S. 354, 85 L.Ed. 1399), livestock could be grazed on the public domain only under
licenses or permits granted by the secretary of the interior through local offices generally known as Taylor
Grazing offices and later through the Bureau of Land Management. An essential requisite for obtaining such
license or
domain from April 1 to October 31 each year. The court found the fact to be that the permit
was only for 2,350 head of cattle for five months each year, but further found that this fact
was known to plaintiff on May 31, 1950 when he made out his second $25,000 check to
defendant. Plaintiff had, as a matter of fact, obtained copies of defendant's Taylor Grazing
permits from the grazing office the day before and had them in his possession the day before
he issued the said second check. The district court, while holding that there was some
question as to plaintiff's knowledge of the Washoe county taxes and while he was not
chargeable with knowledge of the hay and grain production or reservoir costs, as hereinafter
discussed, clearly stated that the defendant was chargeable with knowledge of the extent of
the Taylor Grazing rights. While it is true that a subsequent finding made by the court is
inconsistent with this language, we do not feel justified in ignoring it and must conclude that
plaintiff did not act in reliance upon this representation nor could he have been prejudiced
thereby. This item thus becomes eliminated from the case.
(b) It is next alleged that defendant represented that the ranch comprised an acreage of
19,400 acres of deeded land but that the same did not exceed 15,000 acres of deeded land.
The court found the representation to be 17,500 to 18,000 acres and the actual ownership to
comprise 17,632.62 acres. As stated in its opinion: The court has found [this] alleged
misrepresentation to be substantially correct. It is clear then that this item of alleged
misrepresentation affords no ground for relief.
(c) The next misrepresentation alleged is that the taxes did not exceed $2,200 annually,
whereas the taxes for the fiscal year 1949-1950 were $4,3SS.60.
____________________
permit was the ownership of a base property supplying adequate winter feed commensurate in extent with the
summer grazing license or permit. Variations of the picture under which a winter range is involved or under
which owned and fenced or unfenced mountain pasture is involved or under which the entire annual operation
involves only land owned by the cattle raiser or in which the range lands are checkerboarded by reason of the
ownership of alternate sections by the Central Pacific Railroad, do not enter into the instant cattle operation.
taxes did not exceed $2,200 annually, whereas the taxes for the fiscal year 1949-1950 were
$4,388.60. The court's finding of fact No. 4 finds that the taxes on the real property, including
those in Washoe County, Nevada, and Lassen County, California, were $2,563.43 for the
fiscal year 1949-1950. It can hardly be said that the difference is material in view of the
magnitude of the transaction and in view of plaintiff's admitted possession of the California
tax receipts at the time he made the second $25,000 attempted payment, and in view of his
actual production from his own file at the trial, of the Nevada tax receipts, although he denied
knowledge of the latter or any knowledge of how they had come into his possession. It is
clear that the court did not base, and could not have based, its judgment for a rescission of the
contract upon a misrepresentation of the amount of taxes assessed against the ranch or upon
the plaintiff's reliance on such alleged misrepresentation.
(d) This element is discussed below.
(e) It is here alleged that the defendant represented that he had constructed upon the ranch,
at a cost of $75,000, a new reservoir for storing the waters of Smoke Creek and Chimney
Creek and that said new reservoir impounded 3,500 acre-feet of water, but that its actual
capacity did not exceed 1,800 acre-feet. As to the capacity of the reservoir, the court said:
The court has found that [this] misrepresentation was not relied upon by the plaintiff in
entering into the contract to purchase the ranch and in making the down payment of $25,000
thereon. Elsewhere the court said: It is clear therefore that this representation was not relied
upon. The alleged representation as to the reservoir's capacity is accordingly eliminated from
the case. The court, however, found that the actual cost of the reservoir, as reflected in the
defendant's proofs filed with the Division of Water Resources, Department of Public Works,
State of California, was $21,366.15. In so holding the court applied proper accounting
methods under which it eliminated from the cost of the reservoir items included by the
plaintiff which were the cost of "certain heavy equipment purchased for the job [and
which] remained after the job was completed."
by the plaintiff which were the cost of certain heavy equipment purchased for the job [and
which] remained after the job was completed. We find it unnecessary to discuss this item
further because of our conclusion that even with the elimination of items (a), (b) and (c) and
that part of item (e) having to do with the reservoir capacity and any doubt that we may have
as to that part of item (e) having to do with the cost of the reservoir (not pleaded by plaintiff
as a misrepresentation), the record contains ample, substantial evidence to support the
findings, conclusions and judgment under item (d).
(d) As to this item the second amended complaint alleges: That defendant further
represented and stated to this plaintiff that to run cattle on said ranch required approximately
one ton of hay annually per head; and, further, that said ranch would produce hay to carry the
allowed 2,850 head of cattle through the winter months and at all other times when necessary
to feed hay to cattle; and, further, that the said defendant was putting up 2,500 tons of hay on
said ranch each year; and that in addition, 1,500 acres were now being farmed to grain each
year. It is then alleged: That in truth and in fact said ranch, while owned by the defendant,
and for more than three years continuously preceding defendant's ownership did not yield or
put up in excess of 1,000 tons of hay, and not more than 500 acres of said ranch had ever
been farmed to grain in any one year. There follow the usual allegations that the
representations were false and were known by defendant so to be and were made to induce
plaintiff to enter into the contract and make the down payment of $25,000 and did induce
plaintiff so to do; that plaintiff relied implicitly upon said representations, had no opportunity
to investigate and did not investigate their truth but accepted them as true and would not
otherwise have entered into the contract or made the payment.
The defendant categorically denied making any of the representations. There was much
evidence with reference to the amount of hay required and the amount of supplemental feed
required to winter cattle upon the property.
supplemental feed required to winter cattle upon the property. The subject is also discussed at
length in the briefs of counsel. Although of general interest to livestock men, discussion of
the point is unnecessary for the purposes of this opinion. It may be noted in passing, however,
that the number of tons of hay per cow for winter feeding depends upon the severity of the
season, the length of the feeding season and other factors. On the whole plaintiff's witnesses
agreed with the formula of one ton per head. We depart, however, from the realm of expert
and practical opinion on this point to representations of fact as to tonnages of hay produced
and acreages put into grain.
Plaintiff, throughout examination by his own counsel and a rigid cross-examination by
defendant's counsel, steadfastly maintained that defendant had repeatedly represented that the
ranch produced 2,500 tons of hay and that defendant himself had put up 2,500 tons of hay per
season on the ranch. He has steadfastly maintained that defendant had represented that 1,500
acres had been put into grain; that he made it clear to defendant that he was relying on such
representations; that he had no knowledge of his own on the subject and that he had no
personal experience in ranching or livestock raising. This was substantial evidence upon
which the court was entitled to rely,
3
though in some respects weakened by
cross-examination and though denied in its entirety by defendant. It clearly appears that said
representations, found by the trial court to have been made, were false.
____________________

3
Although the district court found that plaintiff was charged with the knowledge that the ranch had a Taylor
Grazing permit for only 2,350 head for five months and not a permit for 2,850 for seven months, even the 2,350
head permit would lend some support to plaintiff's reliance on defendant's representation of a 2,500 ton hay
production. 2,500 tons of hay, plus the grain production, would, under the evidence, reasonably fill out the
picture for a complete livestock operation. If it should be said that this would indicate a surplus of supplemental
feed, we may refer to evidence (1) that in a long feeding season more than one ton to the head might be required
and that there are recurring dry seasons resulting in underproduction, and (2) to plaintiff's testimony of
defendant's statement that there would be surplus hay to sell.
found by the trial court to have been made, were false.
The hay producing portions of the ranch comprise four separate unitsthe main Smoke
Creek Ranch where the headquarters were situated, the Lower Smoke Creek Ranch, some ten
miles to the south, the Shinn Ranch, some ten miles to the north and Rush Creek Ranch,
some miles to the northwest of Smoke Creek. The range land lies 15 to 18 miles to the north
and east in the neighborhood of what is known as Painter Flat. In this neighborhood are some
20 individual parcels owned by defendant. They contain springs available for stock water and
control a grazing area of some 40 square miles. The main sources of irrigation are Shinn
Creek and Smoke Creek, which flow into a reservoir about a mile and a half north of the
Smoke Creek Ranch. The main hay area, as well as the grain lands, lie below and south of
this reservoir. The hay lands lie in the main along a valley that varies in width from less than
a fourth to approximately a half mile, and extends for a distance of eight miles or more.
Two witnesses, entirely familiar with the haying operations on the four units, both prior to
and during the entire period of the defendant's occupancy thereof, testified in detail to the
amount of hay produced on each unit during those years. The details went to the number of
bales and the number of tons of hay produced. The highest aggregate production of hay in any
of those years was 1,148 tons, the lowest fell to below 900 tons. Testimony as to the number
of cattle fed on the ranch during varying periods, partly with additional feed that had been
purchased, lends no support to defendant's conclusion that much greater tonnages of hay must
have been produced. The hay production was less than one half that represented by defendant.
The highest acreage put into grain during any of those years was 640 acres, as against
defendant's representation of 1,500 acresagain substantially less than one half.
To escape this situation, defendant earnestly contends that not only did plaintiff have full
opportunity to make a personal examination of the premises but made such examination
and was thereby precluded from contending that he entered into the contract in reliance
upon defendant's representations.
a personal examination of the premises but made such examination and was thereby
precluded from contending that he entered into the contract in reliance upon defendant's
representations.
As to plaintiff's examination of the premises it would appear that plaintiff was on the ranch
properties twice before he entered into the contract. On the first occasion he drove to the
ranch with defendant, walked across the Lower Smoke Creek meadow which was about 10
miles south of the main ranch and spent about 10 or 15 minutes there. They then drove north
to the main ranch and stopped at a little knoll overlooking the fields. At this time defendant
explained that this meadow is eight miles long. He explained further that the cattle ranged
in summer on an area near Painter Flat some 15 to 18 miles northeast of the ranch. During
most of the remainder of that trip plaintiff sat in the car. They were there through the middle
of the day, some two or three hours, and then drove back to Reno. On this trip they did not
visit the Shinn Ranch, which is some nine or ten miles north of Smoke Creek.
On his second trip to the ranch he was there with defendant for four or five hours. They
drove to the reservoir approximately one and one half miles to the north of Smoke Creek and
then some 10 miles north to the Shinn Ranch. They walked into the meadow on the Shinn
Ranch and were there about 30 minutes. On this occasion the defendant said that he put up
500 tons of hay on the three smaller ranchesthe Shinn Ranch, Rush Creek and Lower
Smoke Creek. (These three ranches produced 245 tons in 1947 and 238 tons in 1948.) On this
occasion they drove to the gate of the Rush Creek Ranch and looked at it from the gate. They
were able to see only part of the meadow. Examination of the grain areas on both of these
visits was even more cursory and casual than the examination of the hay lands. Plaintiff had
flown over the ranch in his private plane a number of times, but at an elevation of 16,000 feet.
Even assuming that this referred to elevation above sea level, this was still over 11,000 feet
above the ranch.
above sea level, this was still over 11,000 feet above the ranch. Plaintiff was not even sure
that he had located the ranch itself from the air. We should add that defendant never refused
to show plaintiff any part of the ranch that plaintiff desired to see, and that any request by
plaintiff to see any particular part of the ranch was complied with by defendant. We add a few
further facts because defendant places great stress upon them. Plaintiff was apparently a
businessman of ability and acumen, having made a success in the trucking business, a
substantial part of which was devoted to hauling livestock. Though not operating it himself he
owned a small ranch in California. He exhibited a knowledge of the value of cattle and of
ranch machinery, as well as some knowledge of how much feed per head was required to
carry cattle over the winter. In his business office he kept a quantity of legal forms, which he
was accustomed to use in his business transactions. He had counsel employed by the year.
Many other facts appear, all of which have received our consideration but which we do not
deem it necessary to enumerate.
Under the above circumstances defendant insists that the case comes directly within the
rule enunciated in Carpenter v. Hamilton, 18 Cal.App.2d 69, 62 P.2d 1397, 1399, as follows:
Upon the question of knowledge it is held, generally, that where one undertakes to
investigate the property involved or the truth of the representations concerning it and
proceeds with the investigation without hindrance, it will be considered that he went far
enough with it to be satisfied with what he learned. Mr. Pomeroy says, in speaking of one
who has undertaken to make an inspection of the property, The plainest motives of
expediency and of justice require that he should be charged with all the knowledge which he
might have obtained had he pursued the inquiry to the end with diligence and completeness.
He cannot claim that he did not learn the truth, and that he was mislead.' 2 Pomeroy's Equity
Jurisprudence {3rd Ed.) S93.
Pomeroy's Equity Jurisprudence (3rd Ed.) 893. One ground of this latter branch of the rule
is the practical impossibility in any judicial proceeding of ascertaining exactly how much
knowledge the party obtained by his inquiry; and the opportunity which a contrary rule would
give to a party of repudiating an agreement or other transaction fairly entered into, with which
he had become dissatisfied.' Id. If it fairly appears from the evidence that the buyer undertook
to investigate for himself the matters as to which representations had been made, he cannot be
allowed to later claim that he acted upon the representations, even though he voluntarily
abandoned his investigation before it was completed.
Defendant also refers to an annotation entitled Fraud predicated upon vendor's
misrepresentation of physical condition of real property, appearing at 174 A.L.R. 1010, and
particularly to the following at 1037 Id.
It is, of course, a well settled rule that, in order to secure redress, the person to whom
representations were made must have relied upon them. Obviously, no purchaser who relies
upon his own investigation may successfully assert that he relied upon representations made
to him by his vendor. In this connection there is a doctrine which has received the approval of
a substantial majority of the courts to the effect that if a purchaser makes a personal
investigation which is free and unhampered and the conditions are such that he must obtain
the information he desires, he is presumed to rely upon his own investigation rather than on
representations made to him by his vendor.
It is important to note the construction and limitation of the Pomeroy rule as expressed by
the California court in the Carpenter casethat the buyer cannot be allowed later to claim
that he acted upon the representations if it fairly appears from the evidence that he undertook
to investigate for himself the matters as to which the representations had been made. And the
rule cited from the A.L.R. annotation still leaves us with the very question presented,
which is: "Did plaintiff rely upon his own investigation?"
the A.L.R. annotation still leaves us with the very question presented, which is: Did plaintiff
rely upon his own investigation?
[Headnote 1]
The Carpenter case refers with approval to the early California case of Dow v. Swain, 125
Cal. 674, 58 P. 271, the rule of which has been approved in many later California cases, and
as late as Blackman v. Howes, 82 Cal. App. 2d 275, 185 P.2d 1019, 174 A.L.R. 1004, q.v. It
has stood the test of time in California, has not been questioned in other jurisdictions, and we
believe it to be good law:
I do not subscribe to the idea that under all circumstances an actual examination by the
buyer will shield the wrongdoer from an action for damages. Every case must be judged for
itself, and the circumstances which warrant or forbid relief cannot be scheduled. If the seller
knows the facts, and the buyer is ignorant, and to the knowledge of the seller the buyer relies
upon the representations, I see no reason why relief should not be granted, although an
imperfect examination was made. It may have been imperfect because of the representations.
[125 Cal. 674, 58 P. 273.]
See also Heller v. Melliday, 60 Cal.App.2d 689, 141 P.2d 447; Kramer v. Musser, 57
Cal.App.2d 942, 136 P.2d 74; Tracy v. Smith, 175 Cal. 161, 165 P. 535.
[Headnote 2]
The trial court concluded that the view of the property had by plaintiff could not show how
much of the ground had been seeded to grain or how much hay it produced. From what we
have said as to the extent of the examination and from our brief descriptive sketch of the
property itself, it cannot be said that this determination was without substantial support. This
being so, the situation appears to be brought directly within the rule of Dow v. Swain, quoted
above, and is at the same time not in violation of the rule of Carpenter v. Hamilton, supra.
[Headnotes 3, 4]
In the last analysis appellant's position resolves itself into the contention that plaintiff's
testimony is incredible. The trial court did not find it soand this applies not only to the
representations made, but also to plaintiff's reliance on them. See Zimmerman v.
Burchard-Hulburt Inv. Co., 111 Minn. 17, 126 N.W. 282, and Woodward v. Western Canada
Col. Co., 134 Minn. 8, 158 N.W. 706, L.R.A. 1917 C, 270. Each party not only testified at
length on his own behalf, but was subjected to long and rigid cross-examination. We are
precluded by our long recognized rule from saying that the learned trial judge should not have
believed the plaintiff's testimony. What this court might have found if it had been the original
trier of the facts is not pertinent to this appeal.
[Headnote 5]
Defendant's contention that the issuance of the second $25,000 check was a waiver
necessarily falls from what we have said above. At the time it was issued, whatever may be
said of plaintiff's knowledge of the true facts as to the extent of the grazing permit and the
amount of the taxes on the property, plaintiff did not know that the representations as to the
production of hay and acreage of grain were untrue. Without such knowledge or discovery
there could be no waiver. 12 Cal.Jur. 794, Fraud and Deceit, sec. 58. Heller v. Melliday, 60
Cal.App.2d 689, 141 P.2d 447.
Many of the assignments of error have to do with those items of misrepresentation which
we have eliminated from consideration by reason of the opinion and findings of the trial
court. These do not require discussion. Other assignments have been duly considered and
found to be without merit. The numerous authorities cited by appellant have all had our
careful consideration.
Defendant cross complained that by reason of plaintiff's failure to purchase in accordance
with the contract defendant had been compelled to sell the ranch at a loss of $35,000.
of $35,000. His appeal from the judgment and from the order denying his motion for new trial
assign error in denying him a judgment for this sum. Our affirmance of the judgment
awarding plaintiff a rescission and a return of his down payment necessarily carries with it an
affirmance of the denial of the affirmative relief sought by defendant.
The judgment and the order denying new trial are affirmed with costs.
____________
70 Nev. 212, 212 (1953) Smith v. Hamilton
L. J. H. SMITH, Receiver for THOMAS & GUINN, INC., Appellant, v. E. G. HAMILTON,
Respondent.
No. 3763
December 29, 1953. 265 P.2d 214.
Department No. 1.
Action by receiver of sublessee's assignee against sublessor for $2,000, less accrued rental
due, paid by assignee upon sublessee's note, which had been given as security for
performance under sublease thereafter cancelled by sublessor. From a summary judgment for
sublessor, receiver appealed. The Supreme Court, Merrill, J., held that allegations and
affirmations favorable to receiver presented issues which were sufficient to preclude
summary judgment for sublessor.
Reversed and remanded for further proceedings.
Toy R. Gregory, of Las Vegas, for Appellant.
A. W. Ham & A. W. Ham, Jr., of Las Vegas, for Respondent.
After entry of summary judgment, question upon appeal from summary judgment is the propriety of such
judgment and whether genuine issues have been created by the pleadings or proof offered. Rules of Civil
Procedure, Rule 56(c).
Upon appeal from summary judgment for defendant, the supreme court would accept as true allegations
and affirmations favorable to plaintiff's position. Rules of Civil Procedure, Rule 56(c).
3. Money Received.
To recover for money received, no further privity is required than that which results from the having by
one person of another's money, which such person does not have right conscientiously to keep, since law
implies a promise that such person will pay it over to the other.
4. Judgment.
In action by receiver of sublessee's assignee against sublessor for $2,000, less accrued rental due, paid by
assignee on sublessee's note, which had been given as security for performance under lease thereafter
cancelled by sublessor, allegations and affirmations favorable to receiver presented issues which were
sufficient to preclude summary judgment for sublessor. Rules of Civil Procedure, Rule 56(c).
Order denying summary judgment was not a final judgment subject to appeal. Rules of Civil Procedure,
Rule 72.
OPINION
This is an action brought by appellant as plaintiff to recover the sum of $1,818.31. The
appeal is from summary judgment rendered in favor of defendant. The factual record consists
of the pleadings and of affidavits filed in connection with the motion for summary judgment.
In this opinion the parties will be designated as plaintiff and defendant.
[Headnotes 1, 2]
Since the question before us is as to the propriety of a summary judgment and, thus,
whether genuine issues have been created by the pleadings or proof offered (Rule 56 (c)
N.R.C.P.) we shall for the purposes of this opinion accept as true the allegations and
affirmations favorable to the position of the plaintiff. The facts, then, would appear to be as
follows:
Defendant as lessee of certain property executed a sublease to one Guinn.
sublease to one Guinn. Subsequently Guinn executed and delivered to defendant his
promissory note in the amount of $2,500, as stated in the complaint, as security for the
performance by the said E. Z. Guinn of all of the obligations imposed upon him in said
sub-lease. The giving of such security was not required by the terms of the sublease itself but
apparently was pursuant to a supplemental agreement the nature of which does not appear
from the record beyond the quoted allegation of the complaint.
Subsequently Guinn assigned to Thomas & Guinn, Inc. all of his assets in consideration of
the assumption by the corporation of all of his liabilities. Specifically included among the
assets so assigned was all Guinn's interest in the sublease from defendant. Such assignment
was without the consent of defendant and in that respect was contrary to the provisions of the
sublease. The corporation then paid to defendant the sum of $2,000 upon Guinn's promissory
note. Subsequently the lease was terminated by defendant who thereupon retook possession
of the premises. At the time of termination accrued rental amounted to $181.69.
This action was brought by plaintiff as receiver for Thomas & Guinn, Inc. to recover back
from defendant the sum of $2,000 paid upon the note as security for performance less the
amount of accrued rental. For the purposes of this action it is conceded by plaintiff that
termination of the lease was proper.
Following the filing of an answer, defendant moved for summary judgment. Plaintiff
countered with his own motion for summary judgment. Affidavits were introduced by both
parties. Plaintiff's motion was denied; defendant's motion was granted and the action
dismissed.
Defendant does not claim forfeiture of the security deposit and concedes that he is not
entitled to retain the sums so paid beyond compensation for accrued rental and damages. See:
52 C.J.S. 220 (Landlord and Tenant, sec. 473 c.) In support of the decision of the lower court
defendant contends that plaintiff has not established that he is the one entitled to the return
of the deposit.
lished that he is the one entitled to the return of the deposit. His position is first: that since the
assignment of the sublease to the corporation was without his consent and thus contrary to the
terms of the sublease, the corporation could acquire no rights by virtue of the assignment;
second: that if the right of recovery which plaintiff here asserts be deemed a chose in action
apart from rights held under the lease, there was no assignment of such chose in action, the
allegations of the complaint referring only to an assignment of the rights under the lease. See:
52 C.J.S. 225 (Landlord and Tenant, sec. 473 e) where it is stated, An assignment of the
lease by the tenant does not of itself pass title to the deposit securing performance or confer
on the assignee the assignor's right to recover the deposit, and an assignee of the tenant
claiming the deposit must show an assignment of the tenant's rights to such money.
It would appear, however, that while the existence of the deposit relates to the sublease
and any right to its recovery is dependent upon termination of the sublease, the right of the
corporation to the deposit is not, in this case, dependent upon assignment. It does not appear
that at the time of the assignment of the sublease any payment had been made by Guinn upon
the note or that there was then any deposit which he might have assigned. All that he had was
an obligation to provide such a deposit. From the allegations of the complaint and sworn
statements contained in the affidavit of the secretary of the corporation filed by plaintiff on
motion for summary judgment, it appears that the corporation in accepting assignment of the
lease had also assumed the obligation to provide such deposit and had itself paid the sum of
$2,000 as depositthe very sum it now seeks to recover less accrued rental. Its equitable
interest in the deposit, conditioned upon termination of the lease, was, then, based not upon
assignment of the sublease, but upon the fact of payment made by the corporation itself
pursuant to an obligation which it had itself assumed.
[Headnotes 3, 4]
Defendant asserts that not only was the assignment without his consent but also without
his knowledge; that if the corporation had assumed the obligation to provide the deposit, such
fact also was unknown to him; that he never knowingly dealt with the corporation until
termination of the sublease; that in absence of such knowledge or consent there could be no
privity of contract upon which a right to the return of the deposit might be based. Plaintiff's
right, however, does not depend upon express or actual privity. No further privity is required
than that which results from the having by one person of another's money, which he has no
right conscientiously to keep, as in such cases the law implies a promise that he will pay it
over. 58 C.J.S. 918, (Money Received, sec. 7 a) See also: 4 Am.Jur. 511 (Assumpsit, sec.
21).
We conclude, therefore, that the lower court was in error in granting summary judgment in
favor of defendant and dismissing the action.
By this appeal plaintiff contends further, however. It is asserted that the court erred in
denying plaintiff's motion for summary judgment since, it is argued, the record indicates that
no genuine issues remain for determination and that plaintiff is entitled to judgment as a
matter of law.
[Headnote 5]
An order denying summary judgment, however, is not a final judgment subject to appeal
under Rule 72 N.R.C.P. McGrath v. Hunt, Hill & Betts, C.C.A. 2d, 194 F.2d 529;
Morgenstern Chemical Co. v. Schering Corp., C.C.A. 3rd, 181 F.2d 160; Jones v. St. Paul
Fire & Marine Ins. Co., C.C.A. 5th, 108 F.2d 123; Florian v. U. S., C.C.A. 7th, 114 F.2d 990;
Dutton v. Cities Service Defense Corp., C.C.A. 8th, 197 F.2d 458.
Judgment of the lower court is reversed with costs and the matter remanded for further
proceedings.
Eather, C. J., and Badt J., concur.
____________
70 Nev. 219, 219 (1954)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
1954
____________
VOLUME 70
____________
70 Nev. 219, 219 (1954) Clark County v. Los Angeles City
COUNTY OF CLARK, a Political Subdivision of the State of Nevada, Appellant, v. CITY
OF LOS ANGELES, CALIFORNIA, a Municipal Corporation of the State of California,
Respondent.
No. 3711
January 6, 1954. 265 P.2d 216.
Department No. 1.
Action by county against City of Los Angeles to collect county license tax imposed for
revenue purposes upon business of generating electric power. The Eighth Judicial District
Court, Clark County, Frank McNamee, Judge, Department No. 1, sustained demurrer to
complaint and dismissed action, and county appealed. The Supreme Court, Merrill, J., held
that, under statute providing that county shall have power to fix, impose, and collect a license
tax to regulate lawful trades, professions, and businesses conducted within county but outside
limits of incorporated cities and towns, legislature did not intend to delegate to counties
power to license for revenue purposes.
Judgment affirmed.
Roger D. Foley, Jr., District Attorney, Clark County, Las Vegas; and Hawkins & Cannon,
of Las Vegas, for Appellant.
W. T. Mathews, Attorney General, of Carson City, for Plaintiff in Intervention.
Roger Arnebergh, City Attorney; Gilmore Tillman, Chief Assistant City Attorney for
Water & Power; John H. Mathews, Deputy City Attorney; A. L. Lawson, Assistant City
Attorney; all of Los Angeles, California; and Calvin M. Cory, of Las Vegas, for Respondent.
1. Licenses.
State's power to license occupations and privileges is derived from its police power and its power to tax.
2. Constitutional Law; Licenses.
Subject to constitutional prohibition or restriction, state's power to license occupations and privileges
may be delegated by legislative act to its political subdivisions, but extent of such delegation is wholly
dependent upon and limited by the delegating statute. N.C.L.1931-1941 Supp., sec. 1942.
3. Licenses.
Power to license for purposes of revenue is granted political subdivisions of state only where grant
plainly appears from the delegating statutes. N.C.L.1931-1941 Supp., sec. 1942.
4. Licenses.
State's delegation of power to its political subdivisions to regulate and license occupations and privileges
is not a grant of power to license or tax for revenue purposes. N.C.L.1931-1941 Supp., sec. 1942.
5. Licenses.
Under statute providing that county shall have power to fix, impose, and collect a license tax to regulate
all lawful trades, professions, and businesses conducted within county but outside limits of incorporated
cities and towns, legislature did not intend to delegate to counties power to license for revenue purposes.
N.C.L.1931-1941 Supp., sec. 1942, subd. 14.
6. Pleading.
In action by county against City of Los Angeles to collect county license tax imposed for revenue
purposes upon business of generating electric power, refusal to allow county to amend its complaint did not
constitute error in view of fact that license statute under which county was operating did not authorize
imposition of a license tax for revenue purposes. N.C.L.1931-1941 Supp., sec. 1942.
OPINION
Upon this appeal the sole question raised is whether the counties of this state have by
statute been authorized to license businesses for purposes of revenue as distinguished from
regulation. The statute involved is sec. 1942, N.C.L.1929, 1931-1941 Supp., which specifies
the powers of counties. Paragraph 14 of that section, at the time this action was commenced,
provided as follows: To fix, impose and collect a license tax on and to regulate all character
of lawful trades, callings, industries, occupations, professions, and business conducted in
their respective counties, outside of the limits of incorporated cities and towns."
in their respective counties, outside of the limits of incorporated cities and towns.
This action is brought by Clark County against the City of Los Angeles, California to
collect a license tax imposed by county ordinance (Clark County ordinance number 53 as
amended) upon the business of generating electric power. It is conceded that the tax was
imposed for purposes of revenue as distinguished from regulation. The trial court sustained a
demurrer to the complaint and dismissed the action upon the ground that the quoted
paragraph of sec. 1942 did not authorize the licensing of businesses for revenue and that the
ordinance, accordingly, was beyond the power of the county to enact. Clark County has
appealed from that decision. The State of Nevada has intervened in the action in opposition to
Clark County, but the special interests of the state are not concerned with the question
involved upon this appeal. In our view the decision of the trial court was correct and its action
properly taken.
[Headnotes 1-3]
The power of a state to license occupations and privileges is derived both from its police
power and its power to tax. Subject to constitutional prohibition or restriction, its power in
either respect may be delegated by legislative act to its political subdivisions. The extent of
the power so delegated is, however, wholly dependent upon and limited by the delegating
statute. Whether the delegation be of regulatory power under the police power of the state or
be of the sovereign power of taxation is, of course, a question of statutory construction. If the
grant be of regulatory power only, it does not include the power to license for purposes of
revenue. Such power is granted only where the grant plainly appears from the delelgating
statute. See: 9 McQuillin on Municipal Corporations (3d ed.) 56 et seq., secs. 26.28, 26.29;
Gray on Limitations of Taxing Power, p. 716, sec. 1439; Cooley on Taxation (4th ed.) secs.
75, 124, 125, 1798; 20 C.J.S. 1213 (Counties, sec. 279); 53 C.J.S. 473, 479 (Licenses, secs. 9,
10c(2)).
[Headnote 4]
While there appears to be a split in authority (See: McQuillin, supra, secs. 26.29, 26.30)
the majority rule is that a delegation of power to regulate and license is not a grant of power
to license or tax for revenue purposes. A grant of licensing power with nothing in it to
indicate with certainty that power is given for the purpose of raising revenue will be
construed to give power merely to regulate. (Id., sec. 26.29.)
The general rule has been recognized by this court in Ex Parte Noyd, 48 Nev. 120, 227 P.
1020, 1023, where Cooley on Taxation, supra, sec. 1798, was quoted as follows: It is
perhaps impossible to lay down any rule for the construction of such grants that shall be
general, and at the same time safe; but, as all delegated powers to tax are to be closely
scanned and strictly construed, it would seem that when a power to license is given the
intendment must be that regulation is the object, unless there is something in the language of
the grant, or in the circumstances under which it is made, indicating with sufficient certainty
that the raising of revenue by means thereof was contemplated.
Is there anything in the language of paragraph 14 of sec. 1942 which would overcome the
presumption that regulation only was intended? We find nothing.
Ex Parte Noyd, supra, is the only case cited to us in which this court has examined a
delegating statute with an eye to determining whether under the language used the legislature
had intended to delegate a taxing power in addition to a regulatory power. In holding that
under the general rule quoted from Cooley the Reno city charter did indicate with sufficient
certainty that the raising of revenue was contemplated, the court stated, 48 Nev. 120, 126, 227
P. 1020, 1022, The charter of the city of Reno, as we have seen, empowers it to fix, impose,
and collect a license tax on and regulate all characters of lawful business. It provides also that
in fixing licenses the city council must as nearly as practicable make the same uniform in
proportion to the approximate amount of business done by the licensee, and further
provides that in fixing licenses the city council must have due regard for and be governed
as far as possible by the 'approximate amount or volume of business done by each person,
firm, company or corporation thus licensed.' These provisions make it clear that it was
intended to give the city authorities power to license all kinds of business and
occupations that might be carried on within the corporate limits of the city for the
purpose of revenue.
of business done by the licensee, and further provides that in fixing licenses the city council
must have due regard for and be governed as far as possible by the approximate amount or
volume of business done by each person, firm, company or corporation thus licensed.' These
provisions make it clear that it was intended to give the city authorities power to license all
kinds of business and occupations that might be carried on within the corporate limits of the
city for the purpose of revenue. The intent to delegate this power may be inferred from the
provisions of the charter requiring the license tax to be imposed with reference to the volume
of business transacted. If it was intended to restrict the council's authority to granting licenses
for carrying on the business and for police regulation, the designation of the volume of
business as a basis for a license tax would have been unnecessary.
Appellant has cited to us other decisions of this court which, it contends, indicate that the
language, to fix, impose and collect a license tax and to regulate, in and of itself grants the
power to license for revenue as well as for regulatory purposes. Those cases, however,
presented different questions for decision. In no one of them was the contention made that the
delegation was limited to a regulatory power. We cannot, then, regard them as persuasive
upon that question. While Ex Parte Noyd, supra, does regard the use of the term license tax
as of some significance, still, as we have seen, great emphasis was laid upon the further
statutory language to which the court referred.
1
The court in that case also quoted from San
Jose v. S.J. & S.C.R.R. Co., 53 Cal. 475, to the following effect, But the rule as stated by
Judge Dillon is, that in construing the words of the grant the whole charter and general
legislation of the state respecting the subject-matter must be consulted in order to
determine whether by the terms 'license and regulate' it was intended to authorize
licenses for purposes of revenue."
____________________

1
It may be noted that of the cases relied upon by appellant the opinions in three instances indicate that
additional language similar to that emphasized in Ex Parte Noyd, was included in the delegating statute. Ex Parte
Dixon, 43 Nev. 196, 183 P. 642; Ex Parte Counts, 39 Nev. 61, 153 P. 93; Board of County Commissioners of
Nye County v. Schmidt, 39 Nev. 456, 157 P. 1073. In the remaining cases the charter provisions are not fully
disclosed in the opinions.
grant the whole charter and general legislation of the state respecting the subject-matter must
be consulted in order to determine whether by the terms license and regulate' it was intended
to authorize licenses for purposes of revenue. To the same effect see: Cooley on Taxation,
supra, sec. 1798.
The general powers of city councils (as distinguished from counties) are set forth in sec.
1128, N.C.L.1929. Paragraph 10 of that section provides (as does paragraph 14 of sec. 1942)
To fix, impose and collect a license tax on and to regulate all character of lawful trades * *
*. This is not all, however. Paragraph 8 of the same section specifically states, To raise
revenue by levying and collecting a license fee or tax on any private corporation or business *
* *. Such was the law with reference to cities when, in 1933, paragraph 14 was added to sec.
1942 (Stats. of Nevada, 1933, ch. 161, p. 203.) The power to raise revenue through licensing,
theretofore expressly granted to cities, was not similarly included.
With reference to such a statutory situation it is stated in McKay v. City of Wichita, 135
Kan. 678, 11 P.2d 733, 734, A noticeable distinction between the amended act applicable to
cities of the second and third class and the act applicable to cities of the first class is with
reference to the specific words used to express the purposes of the act. In the latter the
governing body may levy and collect a license tax upon and regulate.' In the former the
governing body shall have the power to classify and license for purpose of regulation or
revenue.' For the smaller cities the tax may be imposed either for regulation or for revenue,
while first-class cities may levy and collect a license tax and regulate, plainly excluding the
alternative privilege and limiting the purpose to licensing and regulating.
[Headnote 5]
We conclude that by sec. 1942 N.C.L., paragraph 14, the legislature did not intend to
delegate to counties the power to license for purposes of revenue; that the trial court acted
properly in sustaining the demurrer to the complaint.
court acted properly in sustaining the demurrer to the complaint.
[Headnote 6]
Appellants further assign as error the fact that no opportunity was afforded it to amend its
complaint. Under the circumstances, dependent as appellant is upon the provisions of sec.
1942, we do not see (nor has appellant suggested) how amendment possibly could provide a
cause of action. No error, then, appears. Lyon County Bank v. Lyon County Bank, 57 Nev.
41, 58 P.2d 803, 60 P.2d 610.
Judgment affirmed.
____________
70 Nev. 225, 225 (1954) Hummel v. Roberts
FRED C. HUMMEL, and PEARL S. HUMMEL, His Wife, Appellants, v. W. LYNN
ROBERTS, Respondent.
No. 3756
January 12, 1954. 265 P.2d 219.
Action for specific performance of option and contract for purchase of land and cattle by
plaintiff from defendants. The Sixth Judicial District Court, Humboldt County, Taylor H.
Wines, Judge Presiding, entered judgment reforming and requiring specific performance of
option and contract, and directing defendants to execute and deliver necessary title
documents, and requiring plaintiff to make down payment and to execute note and mortgage
to evidence indebtedness to defendants. Defendants appealed from order overruling motion
for new trial and from final judgment. Plaintiff moved to dismiss appeal on ground that
defendants had voluntarily accepted fruits of judgment and were estopped to maintain appeal.
The Supreme Court, Eather, C. J., held that defendants' voluntary acceptance of down
payment and note and mortgage evidencing plaintiff's indebtedness to defendants
estopped defendants from maintaining appeal.
Eather, C. J., held that defendants' voluntary acceptance of down payment and note and
mortgage evidencing plaintiff's indebtedness to defendants estopped defendants from
maintaining appeal.
Motion granted.
See also 69 Nev. 154, 243 P.2d 248.
Thomas J. D. Salter, and Brown and Murphy, of Reno, for Appellants.
James A. Callahan, of Winnemucca, and Griswold, Vargas & Bartlett, of Reno, for
Respondent.
Defendants, who had accepted $44,500 down payment and note and mortgage in consideration of
execution of deed after judgment awarding plaintiff specific performance of land contract upon payment of
$44,500 down payment and execution of note and mortgage, could not maintain appeal seeking release
from duty of delivering title to plaintiff and abrogation of option to purchase.
Rule prohibiting litigant from reviewing judgment or decree after he has acquiesced in its terms by taking
advantage of provisions in his favor, applies to judgments and decrees which finally adjudicate entire
controversy between parties and award reciprocating benefits.
Where judgment awarding plaintiff specific performance of land contract upon payment of down
payment and execution of note and mortgage, provided that if defendants did not deliver deed of sale
within specified time, clerk of court was directed to do so after performance by plaintiff, defendants could
have permitted that part of decree to become operative, and could have left money and documents in
possession of clerk of court until determination of appeal, and hence defendants' acceptance of money and
of note and mortgage was not made under compulsion relieving operation of rule prohibiting appeal from
judgment the benefits of which had been accepted by appealing party.
OPINION
Plaintiff in the court below obtained on February 9, 1953, a judgment reforming and
requiring specific performance of an option and contract for the purchase of land and cattle
by him from defendants upon payment of part of the purchase price in cash and the
execution of a first mortgage for the remainder, which judgment directed defendants to
execute and deliver the necessary title documents, all in accordance with the option.
land and cattle by him from defendants upon payment of part of the purchase price in cash
and the execution of a first mortgage for the remainder, which judgment directed defendants
to execute and deliver the necessary title documents, all in accordance with the option.
The contract was made September 26, 1949, and called for completion on November 1,
1949. However, defendants declined to perform and plaintiff was forced to prosecute this
action to obtain performance. The case was here before (69 Nev. 154, 243 P.2d 248) on a
preliminary matter and the subsequent trial resulted in the judgment from which this appeal
was filed by defendants. No supersedeas bond has been filed. Plaintiff has moved for a
dismissal of the appeal on the ground that defendants have voluntarily accepted the fruits of
the judgment, to which otherwise they would not be entitled, and are estopped to maintain
this appeal.
We conclude that the motion should be granted.
The contract called for payment by plaintiff of $25,000 in cash on or before November 1,
1949, and the execution of a mortgage which would require annual payments until the full
purchase price had been paid. Plaintiff made a timely tender under the option but defendants
refused to accept it. Several years have passed during this litigation and it became a question
as to whether plaintiff should be required to pay only $25,000 to obtain deed and bill of sale
or add thereto the three annual payments, aggregating $19,500, which would have been
payable if the transaction had been completed at the time stated in the option and no litigation
had been conducted. The judgment reformed the contract as to the description of the property
and ordered performance according to its terms, without specifying an amount to be paid by
plaintiff. After the court announced its judgment a subsequent hearing was held before the
trial judge without objection by defendants to determine the amount to be paid before
defendants should be required to deliver deed. The court determined, over objection by
plaintiff, that $44,500 in cash must be paid and that decision was announced orally at the
close of the hearing.
decision was announced orally at the close of the hearing. Thereupon, in open court, plaintiff
tendered two certified checks aggregating $44,500 and counsel for defendants accepted them
and asked if the deed had been prepared. On the same day a deed and bill of sale were
executed by defendants and they accepted from plaintiff a note and a mortgage for the
remainder of the purchase price. Inasmuch as the contract called for nothing but a sale and
purchase, it is obvious that defendants are entitled to nothing from plaintiff if that contract is
not performed and if the judgment were reversed or new trial granted by this court,
defendants could not retain what they have accepted.
[Headnote 1]
By their appeal, they ask this court to relieve them from the duty of delivering title to
plaintiff and they seek the entire abrogation of the option. Their acceptance of the money,
note and mortgage was certainly inconsistent with their contention in the appeal.
Plaintiff relies upon Preluzsky v. Pac. Co-Operative Co., 195 Cal. 290, 232 P. 970, 971,
wherein the facts were very similar to those in the case at bar. Defendant was ordered to
specifically perform a contract for the assignment of a lease and if he did not comply within a
specified time the clerk of the court was directed to execute the necessary assignment. When
defendant declined to obey, plaintiff paid the purchase price to the clerk and the latter
executed and delivered the assignment. Thereafter, defendant took the money from the clerk
but insisted that he could still maintain his appeal from the judgment. The Supreme Court of
California dismissed the appeal, calling attention to the fact that a reversal of the judgment
would result in defendant having accepted something he would not be entitled to keep. The
court said: Appellant cannot be permitted to thus seek to destroy the entire judgment while
retaining the benefit thereof. The court referred to the rule that an appellant is not estopped
to maintain an appeal if he is at all events entitled to have what he has received and merely
seeks more.
merely seeks more. The rule was not applicable in that case, nor is it here. We quote from the
opinion in that case:
But if a party to a judgment accepts payment or satisfaction of a part thereof which is
favorable to him, and that part is of such a character that the part adverse to him cannot be
reversed without affecting the part which is in his favor and requiring the reversal of that part
also, the party so accepting the fruits of a part of the judgment in his favor is estopped from
prosecuting an appeal from those parts which are against him.
The court went on further:
It is manifest, therefore, that the defendant having received, accepted, and retained the
full purchase price for the assignment of the lease, cannot now be heard to maintain upon
appeal that the plaintiff was not entitled to the specific enforcement of the contract for such
assignment. Defendant is not entitled to the money unless plaintiff gets the property.
What we said in Cunningham v. Cunningham, 60 Nev. 191, at 197, 102 P.2d 94, 105 P.2d
398, 400, is quite similar; it is as follows:
Where a reversal upon the plaintiff's appeal would require him to refund to the defendant
money or property which he has obtained under the judgment, there is reason for holding that
the acceptance of the benefits of the judgment is a waiver of the right of appeal. Having
elected to receive the fruits of the judgment, he is estopped from attempting to destroy the
very foundation of his right to receive them.
The principle was applied in Gerbig v. Gerbig, 60 Nev. 292, 108 P.2d 317.
Defendants say that the Preluzsky case has been disapproved in later cases, but we cannot
agree. They cite Mackay v. Whitaker, 112 Cal.App.2d 112, 245 P.2d 521, 524, but the
opinion in that case refers to the general rule which we apply here and it cites the Preluzsky
case as authority. The court states in the Mackay opinion that the rule "has no application,
however, where the benefits accepted are such that appellant is admittedly entitled to
them, or where they would not be affected by the appeal."
that the rule has no application, however, where the benefits accepted are such that appellant
is admittedly entitled to them, or where they would not be affected by the appeal. The court
then concluded that the facts of that case came within the exception stated and the general
rule did not apply. We see nothing there to cast any doubt whatever on the Preluzsky
decision.
Defendants also cite Reitano v. Yankwich, 38 Cal.2d 1, 237 P.2d 6, but there again the
court referred to the Preluzsky case in support of the rule that acceptance of benefits under a
judgment by a party entitled to them in any event does not bar an appeal by him if the reversal
or a new trial would not put in jeopardy the benefits so accepted. The facts of the Reitano
case were unlike those in the Preluzsky case and the case at bar. It was there held that the
payment of costs by plaintiff did not bar him from prosecuting an appeal from the judgment
against him. No slight doubt or criticism was there raised as to the decision in the Preluzsky
case.
[Headnote 2]
Our research has disclosed an annotation in 29 L.R.A. (New Series) at page 1, which
concludes with this statement, on page 37, which we approve:
Under the operation of the general rule, no litigant is permitted a review of an entire
judgment or decree, all parts of which are mutually interdependent, after he has acquiesced in
its terms by enforcing it or taking advantage of the provisions in his favor. The rule applies to
all judgments and decrees which finally adjudicate the whole controversy between or among
the parties, and award reciprocating benefits to opposing disputants.
That annotation refers to Easton v. Lockhart, 62 N.D. 767, 89 N.W. 75, where plaintiff in
possession of land sued for specific performance of defendant's contract to sell that land to
him and the court entered judgment for defendant but allowed plaintiff a sum to compensate
him for the crops he had planted and which were still standing. Defendant immediately
appealed but also took possession of the land and harvested the crops without making any
payment to plaintiff.
making any payment to plaintiff. The Supreme Court of North Dakota dismissed the appeal
on the ground that defendant's right to the crops was conditioned upon payment and that he
could not take them and appeal from the judgment which imposed the condition.
Another case in the annotation is Murphy v. Spaulding, et al., 46 N.Y. 556, where Murphy
agreed to purchase land which the seller declined to convey on the ground that there was a
prior contract to convey to another. Murphy asked specific performance or damages. The
court determined that Spaulding was entitled to the land and Murphy to damages. Murphy
appealed from that part of the judgment awarding the land to Spaulding. The appeal was
dismissed for the reason that if Murphy were awarded the land he could not also have
damages and by his acceptance of the portion of the judgment awarding damages he was
estopped from attacking the remainder of the judgment. The court said the provisions of the
judgment were connected and dependent.
[Headnote 3]
Defendants also contend, although erroneously, that they accepted the money and the
instruments of indebtedness and they delivered the deed and bill of sale under compulsion
and, therefore, the rule should not operate against them. It is true that the judgment directed
them to perform the option contract and their obligation thereunder was to execute the
conveyances of the real and personal property. However, inasmuch as the judgment provided
that if they did not deliver the deed and bill of sale within a specified time the clerk of the
court was directed to do so after performance by plaintiff of his part of the contract,
defendants could have permitted that part of the decree to become operative and left the
money and documents in the possession of the clerk of the court until the determination of the
appeal.
We notice that after accepting tender by plaintiff at the hearing, counsel for the defendant
referred to the accounting aspect of the case, which had been ordered as part of the judgment
and the possibility that such accounting might show an additional amount owing from
plaintiff to defendants, and counsel inquired if the court desired that defendants execute
the deeds "even with that question."
accounting might show an additional amount owing from plaintiff to defendants, and counsel
inquired if the court desired that defendants execute the deeds even with that question. The
court replied: I am not ordering you to do anything at this time. The record does not
indicate the slightest pressure upon the defendants, and certainly no threat of action for
contempt of court. We cannot escape the conclusion that the act of defendants was entirely
voluntary.
It was suggested by defendants at argument before this court that they would have no
security for the payment by plaintiff if they complied with the judgment by delivering the
deeds and had declined to accept performance by the plaintiff. They would have been
protected by the judgment, for it was just as much a declaration of plaintiff's obligation to pay
as defendants' to convey. A proper record of that judgment would have been sufficient
warning to a third-party purchaser from plaintiff. And the down payment would of course
have remained impounded in the hands of the clerk.
Defendants insist that they always intended to prosecute their appeal but we must look at
what they have done as evidence of their intention. There seems to be no doubt that they
intended to take the money and note obligation of plaintiff. That act is conclusive against
them.
The appeal is dismissed with costs to plaintiff.
____________
70 Nev. 233, 233 (1954) State v. Bourdlais
THE STATE OF NEVADA, Plaintiff, Respondent, v. FERDINAND Bourdlais, Also Known
as VERNON BOURDLAIS, Defendant, Appellant.
No. 3743
January 15, 1954. 265 P.2d 761.
Appeal from the Eighth Judicial District Court of the State of Nevada, in and for the
County of Clark; A. S. Henderson, Judge, Department No. 2.
Ferdinand Bourdlais, also known as Vernon Bourdlais, was convicted of murder and he
appeals.
Affirmed.
Jack J. Pursel, of Las Vegas, for Appellant.
William T. Mathews, Attorney General; George P. Annand, John W. Barrett, and Wm. N.
Dunseath, Deputy Attorneys General, of Carson City. Roger D. Foley, District Attorney;
George M. Dickerson, Deputy District Attorney, of Clark County, Las Vegas, for
Respondent.
1. Criminal Law.
Statute which provides that defendant's intoxication does not mitigate crime but that intoxication may be
considered in determining existence of intent where intent is necessary element of crime, does not require
that jury consider fact that defendant drank before commission of crime. N.C.L.1929, sec. 9966.
2. Homicide.
In prosecution for murder committed in course of robbery, where there was evidence that defendant had
been drinking but no evidence that defendant was intoxicated at time crime was committed, instruction that
drunkenness is no defense to crime and that drunkenness can be considered only in determining degree of
crime or defendant's sanity at time crime was committed, if erroneous, was not prejudicial. N.C.L.1929,
sec. 9966.
3. Homicide.
In prosecution for murder, requested instruction that jury must find defendant not guilty if they find that,
due to insanity or intoxication, defendant was incapable of forming intent to commit crime was properly
refused, since it would have precluded verdict finding defendant guilty of involuntary manslaughter.
4. Homicide.
In prosecution for murder, instruction that defendant is presumed sane until proven insane and that
question of sanity is out of case if evidence tending to prove insanity does not outweigh evidence tending to
prove sanity, correctly stated law.
5. Criminal Law.
In prosecution for murder, two instructions which dealt with extent of proof necessary to prove insanity,
although they were repetitious and should have been combined, did not place such emphasis on defendant's
burden of proving insanity as would result in miscarriage of justice or be prejudicial to defendant.
6. Criminal Law.
In prosecution for murder, where there was no evidence that defendant was insane and where jury was
instructed to determine facts for itself, admission of testimony by expert witness as to defendant's sanity
and ability to tell right from wrong at time crime was committed was not error.
7. Criminal Law.
In prosecution for murder, instruction that jury was to use same rules in weighing testimony of expert
witnesses as are used in weighing testimony of other witnesses did not, when read in its entirety, constitute
judicial comment or place undue weight upon testimony of expert witness.
8. Criminal Law.
If there is substantial evidence to support jury's verdict, supreme court will not weigh evidence or disturb
verdict.
9. Criminal Law.
Verdicts in criminal cases will not be reversed for mere error or irregularity, but only where there is error
prejudicial to defendant's rights.
10. Criminal Law.
A defendant in criminal prosecution is entitled to full and fair presentation of case to jury of unbiased
citizens, and is entitled to have his rights safeguarded by competent counsel.
11. Homicide.
In prosecution for murder committed in course of robbery, evidence was sufficient to support conviction.
OPINION
The defendant is the appellant, and the plaintiff is the respondent in this court. The parties
will be referred to herein as plaintiff and defendant as in the lower court.
Ferdinand Bourdlais, also known as Vernon Bourdlais, was tried, convicted, and sentenced
to death upon a charge of murdering Ward Budzien, Sr., on or about May 21, 1952, and he
has appealed, contending that his trial was not fair nor in accordance with law.
As to who committed the homicide or how or why it was committed, there is no conflict.
There may be variance in the details of the story but if so they come from the defendant's and
not the state's evidence. There were many disputes and controversies in the course of the trial
involving questions of procedure and law, but the all-important question, and the only real
one on the merits of the case, was whether defendant at the time he took Budzien's life, was
mentally deficient. Defendant contends that he had been imbibing intoxicating liquor; that the
coupling of his mentally retarded personality with the effects of intoxicating liquor produced
a mental condition under which he did not at the time realize the nature or the consequences
of his act and that it was wrong.
The state insists that the killing of Ward Budzien, Sr., by the defendant at the time and
place alleged in the information, was committed in the perpetration of robbery, and was,
therefore, murder in the first degree.
That we may have the picture before us in the consideration of defendant's complaints we
here give a condensed synopsis of the salient features of the evidence.
On the evening of May 19, 1952, Ferdinand A. Bourdlais, also known as Vernon
Bourdlais, the defendant, was in Los Angeles, California, where he met Harry Dyer in a bar.
The two determined to travel east together and stayed in a hotel that evening. While in the
hotel room the defendant displayed a 38-caliber revolver and expressed his intention of
robbing people as the occasion demanded in order to finance the trip across the country. In
this Dyer acquiesced and the bullets were packed in Dyer's suitcase as were the bare
necessities for the trip. The rest of the luggage of the pair was checked at a Railway Express
Office in Los Angeles, and after both had breakfast in Los Angeles they started
hitchhiking eastward on U. S. Highway No. 66.
At about the same time in the morning as the defendant and Dyer left Los Angeles, two
other groups of young men left Los Angeles for points east.
Angeles, and after both had breakfast in Los Angeles they started hitchhiking eastward on U.
S. Highway No. 66.
At about the same time in the morning as the defendant and Dyer left Los Angeles, two
other groups of young men left Los Angeles for points east. One group included Joseph
Juszczak, age 23, Arnold Cole, age 22, and Boleslaus Melski, age 18, all of Buffalo, New
York, who had unsuccessfully sought work in the Los Angeles area and were traveling to
Detroit. The other group consisted of James Cockrell, age 17 and Daryl Andrews, age 17, two
recent graduates of Sarcoxie, Missouri, high school, who had journeyed to Los Angeles for
summer employment to finance their continued studies in a small Missouri college. They,
because of their age, had also been unsuccessful in securing employment and were returning
home.
On May 20, 1952, the deceased, Ward Budzien, Sr., age 47, a Los Angeles salesman,
driving a 1949 Buick 4-door sedan, picked up the two Missouri boys a few miles beyond San
Bernardino, California, city limits, and 10 miles further down the highway, the three Buffalo,
New York, boys were picked up. The group proceeded on, with three occupying the front seat
and three the back seat. The deceased (Ward Budzien, Sr.) observed the defendant
(Bourdlais) and Dyer standing beside the highway at the intersection of U. S. Highway 191
and 91 and told the occupants to make room so that they could also secure a ride, as he had
hitchhiked himself when he was young. The deceased had been drinking to the extent that he
was intoxicated before he picked up the hitchhikers. His driving became so erratic that he was
asked by Daryl Andrews to let him drive. The deceased (Budzien) took a rear seat, Daryl
Andrews took the driver's seat and the group continued on. The deceased offered all
occupants a drink, but no one other than the defendant took the bottle. They stopped in
Barstow, California, for gasoline and the deceased sent defendant after another pint of
whiskey. When the defendant returned with the whiskey he noticed a roll of bills in the
shirt pocket of the deceased and according to his own testimony: "When I bought this
whiskey for that man, this Mr.
defendant returned with the whiskey he noticed a roll of bills in the shirt pocket of the
deceased and according to his own testimony: When I bought this whiskey for that man, this
Mr. Budzien, and returned the money to his shirt pocket, I noticed a roll of bills there and I
figured I would rob him of his money.
The group continued on to Baker, California, where they stopped to eat. While entering a
roadside cafe, the defendant said to his companion Dyer, I've got something cooked up.
Dyer said, So lay off the whiskey. Defendant responded, I'm not drinking, I'm only
pretending. I stick my tongue in the bottle to stop the liquor from going down my throat, and
while in the cafe defendant reiterated to Daryl Andrews that he was not drinking but sticking
his tongue in the bottle. All of the parties had something to eat and although the defendant
only remembers having had coffee, Andrews testified that the defendant ate and he believed
he had a sandwich. After the meal was paid for out of funds supplied by the deceased
(Budzien), and cigarettes purchased, the parties resumed their places in the vehicle. In the
front seat, Andrews was driving with Cockrell next to him, Dyer next and Juszczak beside the
right front door. In the back seat the deceased sat next to the left door, the defendant beside
him, Cole beside the defendant and Boleslaus Melski next to the right rear door. Although
defendant testified he drank throughout the trip, Melski and Cole testified that no one in the
car had anything to drink after eating at Baker, California, as did Dyer, who had been afraid
defendant might get drunk and he would have him on his hands in Las Vegas, but who lost
concern over defendant becoming intoxicated as they traveled along. Budzien had fallen
asleep and the occupants in the back seat were discussing the problem of hitchhikers with
drivers of vehicles who would stop and as the hitchhiker approached to get in they would pull
away. The defendant said, If anyone did that to me I'd fill him full of holesI've got the
thing to do it with. He then removed from his belt the 3S-caliber revolver.
from his belt the 38-caliber revolver. It never left his hands for the remainder of the trip,
although defendant and his friend Dyer contended that Cole handled it at one point.
Defendant was asked to put it away and he stated he was going to rob the deceased (Budzien).
He feigned illness and asked Andrews to stop the vehicle. He awakened Budzien and asked
him to get out, but was told by Budzien and Cockrell to get out by the other door. He closed
the door, struck Cockrell on the arm and the group continued on for a distance of 30 miles
when, with the revolver in his hand, the defendant leaned over the back of the front seat and
asked if the boys wanted in on robbing Budzien, or as the defendant testified, I did ask the
other boys if they wanted in on the robbery or in on taking the money. The two youngest,
Cockrell and Andrews said they did not and asked to be let out of the vehicle in Las Vegas.
Proceeding on into Las Vegas, Nevada, and after passing through the outskirts of the city,
Andrews and Cockrell were permitted to leave, but admonished by the defendant not to say
anything to the police. As Juszczak helped them remove their luggage from the trunk of the
vehicle he asked them to remain as the five of them could get the gun away from the
defendant, who remained in the vehicle beside Budzien. The Missouri boys, however, were
too frightened and went immediately to a drive-in and reported the incident to the police. The
others proceeded on with Juszczak driving, Dyer beside him and Melski beside the right front
door. Budzien still sleeping, occupied the left rear seat, defendant next to him and Cole by the
right rear door. At a point beyond Henderson, Clark County, Nevada, Juszczak was directed
by the defendant to pull off the main highway onto a dirt road. They proceeded up the road
until the defendant directed Juszczak to stop the vehicle. The defendant struck Budzien over
the head with the butt of his gun three times. Budzien awakened and asked why he was being
hit. Defendant told Budzien that he was going to rob him and take his car. The defendant
removed money from the pockets of Budzien while the two were still in the vehicle and
then ordered Budzien out the left rear door.
removed money from the pockets of Budzien while the two were still in the vehicle and then
ordered Budzien out the left rear door. Outside of the vehicle the defendant proceeded to
remove the money from the shirt pocket of Budzien, and Juszczak and Cole, in an endeavor
to save the man who had befriended them, left the vehicle. Cole went around the back of the
vehicle and approached Budzien as Juszczak approached Budzien from the other side. In
view of both Juszczak and Cole, defendant raised the revolver to the right temple of the
deceased and pulled the trigger. Cole and Juszczak froze in their tracks.
Defendant testified, The only thing I can remember real well is when the gun went off. I
remember pulling the trigger. I don't know why I shot the man; I realized what I had done
when the gun went off, because I had the gun in my hand. When the body of the deceased
slumped to the ground the defendant, looking at the prostrate form at his feet, made the
statement: He's deader than a mackerel. He ordered the boys to dig a grave and he removed
a tire iron from the trunk of the vehicle, at the same time asking Dyer to get cartridges out of
the suitcase so that he would not have an empty chamber in the revolver. He loosened the dirt
with the tire iron while the other boys dug with their hands and then the defendant pulled the
body of the deceased from the point where it had fallen to the shallow grave. Before burying
the body the defendant said that he would blow the face off the deceased so that he could not
be recognized and further that he would destroy the laundry markings in the clothing and burn
the clothing. The boys were able to talk the defendant out of this and the body was covered.
The defendant expressed his intention of returning to dig the grave deeper so that the vultures
would not be attracted to that spot and the attention of by-passers called to the location of the
body. They returned to the vehicle where the defendant searched the glove compartment for
any other valuables the deceased may have had. They then drove to the main highway,
proceeding back towards Las Vegas, Nevada, and stopped along the way to obtain
gasoline for the vehicle.
drove to the main highway, proceeding back towards Las Vegas, Nevada, and stopped along
the way to obtain gasoline for the vehicle. They next went to the Igloo in Pittman, Nevada, to
secure a room and the defendant went in to register. Not knowing the license number of the
vehicle he asked that one of the others accompany him and his friend Harry Dyer was called
to the manager's office to register with the defendant. Juszczak, Cole and Melski remained in
the vehicle and as the defendant, Dyer, and the manager of the motel went into a room,
Juszczak turned the vehicle around and sped out into the highway, proceeding on into Las
Vegas, Nevada, as fast as the vehicle would travel. Dyer testified that while he was in the
motel with the defendant after the three Buffalo boys had left, the defendant became enraged
because the car had been taken and stated that he killed the man for nothing; because he
wanted the car and now the car was gone, it was all for nothing; if he had known the boys
were going to do this he would have killed them too.
At an intersection in Las Vegas, Nevada, Juszczak observed a Las Vegas department
police car. He spun the vehicle around, stopped in the middle of the street and the three New
York boys ran over to the policeman to report what they had witnessed. The policeman
quieted them down, radioed the sheriff's office that he had made contact with the boys,
placing them in his vehicle and returned to the intersection by the drive-in where the two boys
from Missouri were waiting with other officers. All proceeded back to the motel where the
three Buffalo, New York, boys had last seen the defendant and Harry Dyer. They searched the
motel, but were unable to find either of them. One of the sheriff's vehicles proceeded down
the highway with the five boys and walking in the opposite lane of traffic were the defendant
and Harry Dyer. They were ordered over to the vehicle with their hands up and the murder
weapon was removed from the belt of the defendant. Defendant and Dyer were taken in
another vehicle to the point where the dirt road leading to the grave connected with the
main highway.
the point where the dirt road leading to the grave connected with the main highway.
Defendant navigated under his own power up the dirt road and needed no assistance, and in
the opinion of the arresting officers was not in any condition that indicated he was under the
influence of alcohol. At the grave site, the defendant and Dyer removed the earth from the
body of the deceased and the defendant was taken into custody.
After being booked, defendant said: He's dead, I killed him, and that is that. I don't want
to say any more.
Defendant was examined in the office of the Clark County district attorney on May 22,
1952, by Dr. G. W. Shannon, assistant superintendent of Patton State Hospital, a branch of
the State of California Department of Mental Hygiene. Based upon that examination, Dr.
Shannon concluded that defendant was sane; that he is a psychopathic personality; that he had
normal mental development, intellectual development, and was able to tell the difference
between right and wrong.
The evidence produced on behalf of defendant is substantially as follows:
He was born in 1927 in Marinette, Wisconsin, of a large and impoverished family. The
family resided in a building which had been used as a city poor house and was in need of
repair and which lacked the minimum conveniences of running water, electricity, and inside
toilet facilities. In 1942 the family of defendant was reported to have been on the relief rolls
since 1925; the defendant's father was crippled, unemployed except for odd or part-time jobs
as a cook or bartender, and was an alcoholic. Defendant's mother was mentally retarded and
illiterate. An older brother, Francis, was committed to an institution for the feeble-minded for
a period of more than four years.
Defendant's childhood was one of severe privation. At the age of 11 he stole a bicycle, was
apprehended, pleaded guilty, and was placed on probation. In June 1941, at the age of 14 he
was committed to the State Industrial School after pleading guilty to a charge of car theft.
Industrial School after pleading guilty to a charge of car theft. From June 1941, until July 26,
1951, except for brief intervals, defendant was institutionalized in the industrial school, the
Wisconsin Reformatory, or Wisconsin State Prison, for stealing, violation of parole, or
attempted escape.
During this period of time defendant was on three occasions (November 6, 1941, August
14, 1946, February 13, 1947) subjected to mental examinations by Peter Bell, M.D., examiner
for the Psychiatric Field Service of the Wisconsin State Department of Public Welfare.
During this period of time defendant was twice placed in the Mendota Hospital in Wisconsin,
an institution which provides treatment and care for persons with mental illness, for the
purpose of medical diagnosis and treatment and mental observation and treatment. He was
transferred to said hospital on February 7, 1942, after a suicide attempt, and remained there
until March 18, 1942, when he was returned to the industrial school. Defendant was later
returned to the said hospital for further observation (the record shows that defendant was
there on August 14, 1942), and was subsequently returned to the Wisconsin School for Boys.
As a result of the examinations and observations aforesaid (the first of which took place
when defendant was 14 years of age and the last when he was 19), the examiner, Dr. Bell,
reported that defendant had a low normal mentality. At age 14 his mental age was determined
to be 13 1/2. At age 19 on two separate occasions he showed a mental age of 13 years, 6
months. He repeated the sixth grade at the age of 14. Dr. Bell further reported that defendant's
reasoning powers were impaired and that his judgment was defective. Dr. Bell's report further
showed defendant to be unstable, preoccupied, inhibited, sensitive, devoid of good
self-confidence, immature, obsessed of conflicts of personal nature, self-conscious, rather
morbid and depressed, blocked in his thought associations, rather schizophrenically colored
in his reaction, and evaluated defendant as having a neurotic character defect. Dr. Bell's
prognosis as to defendant's future was that it was poor and that defendant's future was
dark.
having a neurotic character defect. Dr. Bell's prognosis as to defendant's future was that it was
poor and that defendant's future was dark.
Although defendant, at the time of Dr. Bell's examination, was found to be unable to
evidence proper self-control, he was found to be able to distinguish between right and wrong.
We refer to the foregoing only for the purpose of calling attention to the substance of the
evidence respecting defendant's childhood and family background and with his institutional
history which we deem necessary to a full understanding of some of the questions raised on
this appeal.
With reference to his drinking on the night of the shooting, defendant's testimony was
somewhat at variance with that of other witnesses. He testified that after he and Dyer had
been picked up by Budzien, I seen him tip the bottle up and take a drink and he offered it
around and asked everybody if they wanted a drink. Nobody accepted. I took the bottle and
had a pretty good drink. When Budzien moved to the back seat he took a couple of more
drinks, handed the bottle over to me and I took a couple of more drinks and I handed it back
to him. He set it on the floor by his feet and then dozed off. * * * Whenever I wanted a drink I
didn't want to wake him up, so I would reach over and take a drink and put the cap on and put
it back. After securing the other bottle, He took a drink and I took a drink and he put it back
on the floor. No one else in the car was drinking, just myself and Mr. Budzien. I think we
drank most of the liquor which was in that bottle. Other than this, defendant gave no
testimony as to the extent of liquor consumed by him. He did not testify that he became
intoxicated.
Harry Dyer testified in part as follows:
Q. Now as you moved along down the highway, is it true that you lost your concern over
Vernon becoming intoxicated? A. Yes. * * *
Q. Was his speech coherent? A. Yes, sir.
Q. Did he speak plainly? A. Yes.
Q. Were his eyes clear? A. I am not sure of the condition of his eyes.
Lloyd Bell, deputy sheriff of Clark County, testified in part as follows:
Q. Now, officer Bell, while you were walking with the defendant did you have an
opportunity to observe whether he was steady on his feet? A. Yes, sir.
Q. How did he walk? A. He walked straight up the road without help.
Q. Was he standing erect? A. Yes.
Q. Did you have an opportunity to observe whether there was a smell or odor of alcohol
on his breath? A. There was not.
Q. Did you have an opportunity to observe whether or not his eyes were bloodshot at that
time? A. I didn't get too good an opportunity to notice.
Q. Did you have an opportunity to observe whether or not his speech was slurred or
thick? A. It didn't appear to me to be so.
Q. Did he speak coherently? A. Yes, sir.
Seven errors are assigned.
Defendant's first assignment makes the point that the court erred in giving Instruction No.
30. Instruction No. 30 reads as follows:
It is a well settled rule of law that drunkenness is no excuse for the commission of a
crime. Drunkenness forms no defense whatever to the fact of guilt, for, when a crime is
committed by a party while in a fit of intoxication, the law will not allow him to avail himself
of his own gross vice and misconduct to shelter himself from the legal consequences of such
crime. Evidence of drunkenness can only be considered by the jury for the purpose of
determining the degree of the crime, or for the purpose of determining whether the defendant
was sane or insane at the time the alleged offense was committed.
Defendant contends that Instruction No. 30 does not fully and correctly state the law with
reference to drunkenness as a defense to the crime of murder because it failed to advise
the jury that they might consider intoxication in determining the existence of a specific
mental condition essential to the commission of a particular kind or degree of offense.
fully and correctly state the law with reference to drunkenness as a defense to the crime of
murder because it failed to advise the jury that they might consider intoxication in
determining the existence of a specific mental condition essential to the commission of a
particular kind or degree of offense.
Section 9966, N.C.L.1929, provides:
INTOXICATION, WHEN IT MAY BE CONSIDERED IN MITIGATION OF
OFFENSE. Sec. 17. No act committed by a person while in a state of voluntary intoxication
shall be deemed less criminal by reason of his condition, but whenever the actual existence of
any particular purpose, motive or intent is a necessary element to constitute a particular
species or degree of crime, the fact of his intoxication may be taken into consideration in
determining such purpose, motive or intent.
[Headnote 1]
It will be noted from reading Sec. 9966 that it does not require that drinking by the
defendant must be considered by the jury in the determination of a particular intent necessary
to constitute a particular crime. The statute states the fact of intoxication of a person may be
considered.
[Headnote 2]
In reading the entire record in this case we find that while there is some evidence of
drinking on the part of the defendant, there is not a particle of evidence contained therein to
show that the defendant was intoxicated at the time of the commission of the crime. Upon
this point the only evidence is to the effect that he was not intoxicated.
In the course of the trial not once did defendant claim his mental condition was confused
to the extent that he had no intention of killing. The transcript of testimony fails to show any
claim of intoxication or drunkenness on the part of the defendant. He testified he drank while
he was in the vehicle of the deceased, but he did not assign this as a reason for his haziness
about facts until the revolver held in his hand was discharged and he then realized what
he had done.
not assign this as a reason for his haziness about facts until the revolver held in his hand was
discharged and he then realized what he had done. In this respect compare his testimony with
that of every other witness, including the testimony of Harry Dyer, the defendant's witness.
Because defendant made it appear as if he were drinking from the bottle, Dyer testified that
he was concerned about having defendant upon his hands in Las Vegas if he became drunk,
but as the group proceeded on towards Las Vegas, Dyer testified he lost all concern over
defendant becoming intoxicated. Compare also his testimony with that of Juszczak and
Andrews, who both testified to the defendant's saying that he was not drinking, but was
placing his tongue in the bottle to prevent consuming any liquor. Compare this testimony
with that of Deputy Sheriff Lloyd Bell, who testified that the defendant gave no appearance of
having been under the influence of intoxicating liquor and no alcohol was smelled on his
person.
Defendant has referred to and cited the case of State v. Johnny, 29 Nev. 203, 87 P. 3; State
v. Jukich, 49 Nev. 217, 242 P. 590. In the case of State v. Johnny, supra, there was ample
evidence of intoxication offered. Witnesses testified that both defendants were drunk and
boisterous the whole day and evening before the offense; that they were so drunk that they
needed the assistance of each other to get along. In the case of State v. Jukich, supra, the
testimony was not as conclusive as in the Johnny case. However, the court gave instructions
patterned on those given in the Johnny case. This does not mean, however, that it would have
been improper not to so instruct if the evidence of the case did not warrant such instruction.
The instructions in each case, of course, must be determined on the evidence adduced. As
pointed out, section 9966 does not require that evidence of drinking be considered in
determining a particular intent. In this regard, attention is called to State of Nevada v.
O'Connor, 11 Nev. 416, at page 424. The court had this to say: "The second and third
instructions refused were to the effect that if the defendant, at the time of the assault,
was so drunk as to be incapable of forming or entertaining an intent to kill, he could not
be convicted as charged.
The second and third instructions refused were to the effect that if the defendant, at the
time of the assault, was so drunk as to be incapable of forming or entertaining an intent to
kill, he could not be convicted as charged. It is a sufficient reason for sustaining the refusal of
the court to give these instructions, that there is not a particle of evidence contained in the
record going to show that the defendant was intoxicated at the time of the assault. It is true
that the court, at the request of the defendant, gave other instructions to the effect that if the
defendant was found, on account of intoxication or other cause, not to have entertained an
intent to kill, he could not be convicted of the crime charged. This does prove that there must
have been some evidence of intoxication, but it does not prove that there was any evidence of
such a degree of intoxication as would have rendered the defendant incapable of entertaining
or forming an intent to kill.
See also the case of State v. Heinz, 223 Iowa 1241, 275 N.W. 10, at page 19, reported in
114 A.L.R. 959, at 973. In the above case the court held that partial drunkenness does not
make impossible the formation of a criminal intent and the evidence was insufficient to prove
defendant was so intoxicated that he was unable to form a criminal intent. In the above case
the same contention was relied upon by appellant in that case; that the instruction was not
complete and it did not advise the jury they might consider intoxication of defendant as
reflecting on ability to manifest the required intent to kill. The instruction in that case makes
no reference to the consideration of the mental condition of appellant, whereas Instruction
No. 30 in the case at bar specifically provides that the jury can so consider evidence of
intoxication and whether the defendant was sane or insane at the time the alleged offense was
committed. The appellant in the Heinz case testified, I was not awful drunk, but as far as
myself I would consider I was pretty drunk, and as pointed out, no such testimony was
elicited from the defendant in the case at bar, as such was not the fact.
not the fact. In the Heinz case, the court held that partial drunkenness does not make
impossible the formation of a criminal intent and the evidence was insufficient to prove
defendant was so intoxicated that he was unable to form criminal intent. It was the court's
ruling that no error could be predicated on the instruction given.
Therefore, under the facts of the case, in our opinion, the giving of Instruction No. 30 by
the trial court did not constitute prejudicial error.
[Headnote 3]
Defendant next contends that the trial court erred in refusing to give defendant's proposed
Instruction C. Proposed Instruction C reads as follows:
If you find from a preponderance that the defendant, at the moment of the killing, by
reason of intoxication or insanity was incapable of forming in his mind and had not formed in
his mind any intention to commit either robbery or murder, then you must find the defendant
not guilty.
The trial court refused the foregoing instruction proposed by defendant on the ground that
it does not correctly state the law as to intoxication.
Defendant contends that said instruction properly states the law and cites 23 C.J.S., page
757, and the numerous citations thereunder, in support of his proposition.
From a careful examination of the cases cited by defendant in support of his proposition,
the crimes with which the defendants were charged did not involve crimes in which a lesser
included offense required no intent. It will be noted in the case at bar that Instruction No. 8
given at the request of defendant and instructions on all lesser included offenses of the crime
of murder were given to the jury. Included among these instructions was Instruction No. 24
on involuntary manslaughter, which specifically provides that an unintentional killing of a
human being in the commission of an unlawful act or of a lawful act which might probably
produce such a consequence in an unlawful manner, is involuntary manslaughter.
involuntary manslaughter. Under the instructions proposed by counsel for the defendant the
jury would have been precluded from returning a verdict of guilty of involuntary
manslaughter.
As stated in 23 C.J.S., section 1334, page 993, It is proper to refuse a request for an
instruction which does not correctly state the law. See also: State v. Sheeley, 63 Nev. 88, 97,
162 P.2d 96; State v. Skaug, 63 Nev. 59, 68, 161 P.2d 708, 163 P.2d 130; State v. Burns, 27
Nev. 289, 294, 74 P. 983.
The court did not err in refusing to give the above proposed instruction.
[Headnote 4]
Defendant next contends that the court erred in giving Instruction No. 25. Instruction No.
25 reads as follows:
The defendant is presumed to be sane until proven insane. In determining whether the
defense of insanity has been made out, you must decide whether the evidence for or against it
outweighs. If the evidence tending to show insanity outweighs that against it, then it is
proven. If not proven, it is out of the case; if proven, it takes its place along with other
received proof; and if, upon the whole evidence, as thus settled, there is any reasonable doubt
of guilt, either in existence or degree, the defendant must be given the benefit of such doubt,
either to acquit or reduce the grade of crime.
The defendant contends that Instruction No. 25 given by the court relative to insanity in
the instant case was prejudicial error for the reason that the instruction does not state the law.
In support of this argument, appellant relies upon 23 C.J.S., section 1200, Page 754. The
authorities cited thereunder do not correctly state the law of this jurisdiction.
In the case of State v. Behiter, 55 Nev. 236, 29 P.2d 1000, the court distinctly charged that
insanity is not proved or established by simply raising doubt as to whether it exists or not.
Such has been the law of this jurisdiction since the opinion in State v. Lewis, reported in 20
Nev. 333
in 20 Nev. 333, 22 P. 241, in which the court goes to great length in discussion of the
problems of insanity as a defense to crime.
In the case of People v. Perez (Cal.), 263 P.2d 29, at page 31, the court stated:
Defendant was presumed to be sane and it was incumbent upon him to show that at the
time of the commission of the homicide he was not able to distinguish right from wrong or
know the nature and consequences of his acts.
See also State v. Nelson, 36 Nev. 403, at page 413, 136 P. 377, wherein the court said it
saw no good reason for changing the rule enunciated in the Lewis case relative to the
propositions of law on the subject of insanity. See also State v. Fouquette, 67 Nev. 505, 221
P.2d 404. The supreme court of this state as far back as 1889 has approved an instruction in
the form in which Instruction No. 25 was submitted to the jury in the case at bar. Therefore,
under the facts of this case, we find no error in the giving of Instruction No. 25. The
instruction does correctly state the law applicable to the instant case.
[Headnote 5]
Defendant next contends that the court erred in giving Instructions Nos. 26 and 27, for the
reason that they are repetitious and place undue emphasis on the burden upon the defendant
of proving his insanity. In support of this proposition, defendant cites 16 C.J. 1036, note 59
and several other citations. 23 C.J.S., Criminal Law, sec. 1304.
The instructions both deal with the same subject matter; the burden and necessary extent
of proof of insanity. Clearly they are repetitious, and failure to combine them into a single
instruction appears to be wholly unjustified. However, this in itself can hardly be said to
constitute prejudicial error. We do not regard the instructions as giving undue prominence to
the principles involved. Under the circumstances of the case it was deemed necessary for
many instructions to be given upon the subjects of insanity and intoxication and
overlapping to a certain extent was almost unavoidable and hardly likely to become
conspicuous in any one instance.
upon the subjects of insanity and intoxication and overlapping to a certain extent was almost
unavoidable and hardly likely to become conspicuous in any one instance.
In the case of State v. Jukich, 49 Nev. 217, at page 239, 242 P. 590, the court said:
In the case of State v. Johnny, 29 Nev. 203, 87 P. 3, practically the same instructions
were given and approved by this court, in which the jury was twice told that evidence of
drunkenness should be received with great caution.
In our view, then, the giving of Instructions Nos. 26 and 27 did not result in a miscarriage
of justice or prejudice the rights of the defendant in the instant case. In this regard the case of
State v. Skaug, 63 Nev. 59, at page 74, 161 P.2d 708, 163 P.2d 130, the court held:
The statute (sec. 11266 N.C.L.) places the burden on the appellant to show an error of the
kind authorizing this court to set aside the judgment. As we said in State v. Williams, 47 Nev.
279-285, 220 P. 555, 557: From a reading of this statute it must not only appear that the trial
court erred, but it must appear affirmatively that the error resulted in a miscarriage of justice,
or actually prejudiced the defendant. In other words, we can indulge in no presumption
favorable to the defendant. Such is the clear, unequivocal, unambiguous provision of the
statute.' State v. Willberg, 45 Nev. 183, 200 P. 475, and State v. Ramage, 51 Nev. 82, 269 P.
489, are to the same effect.
[Headnote 6]
Defendant next contends that the court erred in permitting the State's expert witness to
testify as to the sanity of the defendant at the time of the act with which he is charged, and as
to whether or not he was at that time able to distinguish between right and wrong, over
objections of defendant's counsel.
As his sole authority in support of this proposition, the defendant relies upon the case of
People v. Jacobs (Cal.), reported in 51 P.2d 128.
In the case of People v. Woods (Cal.), reported in 65 P.2d 940, 942, the court has this to
say:
Finally, the defendant contends that by permitting the two alienists to give over his
objections their opinions concerning the defendant's ability to determine between right and
wrong, the trial court committed prejudicial error. In this behalf, the defendant relies almost
wholly upon People v. Jacobs, Cal. App., 51 P.2d 128. Unfortunately for the defendant, but
fortunately for the people of California, the opinion in that case is resting in a judicial
morgue, having succumbed to a painless lethal gas in the form of an inoffensive order by the
Supreme Court transferring the case to a higher sphere. The opinion did not get further than
the advance sheets and does not appear in the permanent volumes of the Reports. It is not the
law in California.
The court, at page 942, points out the various tests for determining mental capacity in will
contests, commitment to mental institutions, an insane person standing trial and criminal
insanity, and had this to say:
If the expert is limited to giving his opinion that the person is insane the jury will never
know what test the expert took into consideration as his basic test of insanity. In a criminal
case, if the expert cannot be asked his opinion as to whether the accused knew right from
wrong, the jury is left absolutely in the dark as to whether or not the expert is applying in his
mind the correct test of insanity.
The court further stated, at page 943:
It is no more an invasion of the province of the jury for an expert to give his opinion that
an accused is insane, including the correct legal test, than for him to give his opinion merely
that the accused is insane, and none of the cases hold that it is an invasion of the province of
the jury for the expert to give his opinion that the witness is insane. It cannot fairly be argued
that any prejudice is caused the accused by allowing the jury to know the basis upon which
the expert has reached his conclusions and the grounds therefor. On the one hand, if the jury
does not believe the expert's opinion that the accused is insane merely, it will disregard
the opinion.
if the jury does not believe the expert's opinion that the accused is insane merely, it will
disregard the opinion. On the other hand, if the jury does not believe the expert's opinion that
the accused knew the difference between right and wrong, it will likewise disregard the
opinion; for the jurors are instructed that the question is for them to decide and that they are
not bound to accept the opinion of any expert as conclusive, and that they may disregard any
such opinion if it shall be found by them to be unreasonable.
For citations that tend to support our conclusion, see 11 Ruling Case Law, 584; People v.
Keaton, 211 Cal. 722, 296 P. 609; People v. Willard, 150 Cal. 543, 89 P. 124; People v.
Sloper, 198 Cal. 238, 244 P. 362.
A cautionary instruction was given to the jury in the instant case. Instruction No. 32
instructed the jury as follows:
While you are not bound by the testimony of expert witnesses, still, in considering such
testimony, the professional standing of such witnesses must be taken into consideration in
arriving at a verdict; and you should consider the character, the capacity, the skill, the
opportunities for observation and the state of mind of the expert. The opinions of experts are
to be considered by you in connection with all other evidence in the case. You are not to act
upon them to the exclusion of other testimony. You are to apply the same rules to testimony
of experts that are applicable to other witnesses in determining its weight.
In Instruction No. 34 the court instructed the jury it was their province to award to the
statements of the various witnesses the credence and weight to which in their judgment they
might be entitled, and in Instruction No. 2 the jury were advised that it was the exclusive
province of the jury to decide and determine questions of fact. It will be seen, therefore, that
the instructions as given by the court properly charged the jury as to the consideration to be
given to the testimony of the expert witness without placing undue weight thereon.
thereon. See Wharton's Criminal Evidence, 11th Edition, section 993, at page 1738, wherein
it is pointed out as follows:
Such opinions are admissible because they are scientific deductions from the facts to
enable the jury to decide the questions of fact intelligently, and they are received because the
nature of the facts is such that they cannot be correctly understood by the jury unless the
expert gives his opinion as to what such facts do or do not indicate.
The decision in People v. Woods, supra, was cited with approval in Burgunder v. State
(Arizona), 103 P.2d 256, and in People v. Dawa (Cal.), 101 P.2d 498, the court held the
accepted test of insanity in criminal cases is whether defendant could distinguish between
right and wrong, and experts were permitted to testify to such fact.
In the instant case there was no evidence showing, or tending to show, that the defendant
was insane at the time he killed Budzien. That he knew the nature of his act is evidenced by
the fact that he planned it and executed it as planned, and hastened from it as quickly as he
could. He knew he would be punished if apprehended because he knew what he was doing
constituted not only robbery but murder in its perpetration.
The court did not err in permitting the State's expert witness to express an opinion as to the
ability of the defendant to distinguish between right and wrong.
[Headnote 7]
For his sixth assignment defendant contends that the trial court erred in giving Instruction
No. 32, in that it consisted of judicial comment, and placed undue weight upon the testimony
of the expert witness. The instruction when read in its entirety clearly states that the jury is to
apply the same rules to the testimony of experts as are applicable to other witnesses in
determining the weight to be accorded. The instruction had equal application to the testimony
of Dr. Peter Bell, witness for the defendant, whose deposition was admitted without
objection by the State.
defendant, whose deposition was admitted without objection by the State. The instruction was
given in the case of State v. Watts, 52 Nev. 453, 290 P. 732, which is cited as authority
therefor. The instruction is not erroneous. The court could properly instruct as to the
testimony of expert witnesses so as to inform the jury that they should not disregard such
testimony merely because given by experts.
As to his seventh and final proposition, the defendant contends that the verdict of the jury
is contrary to the evidence in this case. No authority, however, is cited in support thereof.
[Headnote 8]
It has been the rule in the State of Nevada, long established and consistently adhered to by
this court, that if there is substantial evidence to support the verdict of the jury, the evidence
will not be weighed by this court, nor the verdict or judgment disturbed. This court cannot
reverse the judgment upon the ground of insufficiency of the evidence where there is
substantial evidence to support the verdict of the jury. State v. Wong Fun, 22 Nev. 336, 40 P.
95; State v. Boyle, 49 Nev. 386, 248 P. 48; State v. Teeter, 65 Nev. 584, 200 P.2d 657; State
v. McKay, 63 Nev. 118, 165 P.2d 389, 167 P.2d 476; State v. Fitch, 65 Nev. 668, 200 P.2d
991.
[Headnotes 9, 10]
We are aware of the seriousness of our responsibility in a case where a man's life is
involved. To the degree we are capable, we have carefully scrutinized all matters of substance
claimed as error by the defendant. We are also conscious of the fact that a trial in the courts of
this state is a proceeding in the interest of justice to determine the guilt or innocence of the
accused and not a mere contest to determine the abler adversary. We will not reverse criminal
causes for mere error or irregularity. It is only where there has been error which is both
substantial and prejudicial to the rights of the accused that a reversal is warranted. The
defendant was entitled to a full and fair presentation of the case to a jury of unbiased
citizens and to have his rights safeguarded by competent counsel.
was entitled to a full and fair presentation of the case to a jury of unbiased citizens and to
have his rights safeguarded by competent counsel. This has been done. We believe the
defendant has been accorded the full measure of protection afforded him under the
constitution and the laws of our state.
[Headnote 11]
We have examined the entire case and in our opinion no other verdict could be reasonably
accounted for under the evidence. The fact is, the evidence overwhelmingly supports the
verdict.
The judgment and the order denying a new trial are hereby affirmed, and the district court
is directed to make the proper order for the carrying into effect by the warden of the state
prison of the judgment rendered.
March 19, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 257, 257 (1954) Morgali v. Kaupp
RALPH MORGALI, VIRGINIA E. MORGALI, and MORGALI MINING COMPANY,
Appellants, v. ETHEL B. KAUPP, a Single Woman, Respondent.
No. 3744
January 20, 1954. 265 P.2d 1069.
Appeal from judgment of First Judicial District Court, Douglas County, Hon. D. W. Priest
of the Third District presiding, in favor of plaintiff and from order denying defendants'
motion for new trial.
Action by grantor against grantee to set aside deed on ground of fraud. The Supreme
Court, Badt, J., held that the evidence established fraud, but that the grantor would be
required to return to grantee the inadequate consideration which had been paid by grantee.
Affirmed in part. Reversed in part and remanded with instructions.
Oliver C. Custer and Bruce R. Thompson, both of Reno, for Appellants.
Gordon W. Rice and Harlan L. Heward, both of Reno, for Respondent.
The supreme court will not disturb fact findings supported by substantial testimony.
2. Deeds.
In grantor's action to set aside deed on ground of fraud, evidence sustained findings that confidential
relationship existed between grantee and grantor, that grantor was incompetent at time of conveyance and
had no independent advice and that price was inadequate. N.C.L.1929, sec. 8923.
3. Cancellation of Instruments.
Grantor's action against grantee to set aside deed on ground of fraud was not any such action under
contract pursuant to which deed was given as would make person to whom grantor assigned her interest in
contract an indispensable party. N.C.L.1929, sec. 8543.
Evidence disclosed that grantor's assignment of her contract with grantee placed grantee in no danger of
being subjected to any claims by assignee, so that assignee was not indispensable party plaintiff to
grantor's action against grantee to set aside deed on ground of fraud.
indispensable party plaintiff to grantor's action against grantee to set aside deed on ground of fraud.
5. Judgment.
Where husband, thirteen months before judgment in his action against wife to enforce divorce decree and
property settlement agreement by which wife assigned to husband her interest in contract pursuant to which
wife conveyed ranch to grantee, had relinquished and waived all rights that had possibly momentarily
vested in him under the assignment, provision in judgment that, except as stated therein, husband and wife
each owned his or her property free of claims of the other was not res judicata as fixing in husband the
ownership of rights under the contract agreement and did not bar wife's subsequent action against grantee
to set aside deed to grantee on ground of fraud.
6. Deeds.
In grantor's action against grantee to set aside deed on ground of fraud, evidence warranted finding that
grantor and grantee had agreed that $6,800 was owing from grantor to grantee and was the consideration,
though inadequate, for the deed.
On setting aside of deed procured by fraud of grantee, grantor would be required to return to grantee the
inadequate consideration which had been paid by grantee.
OPINION
Ethel B. Kaupp sued Ralph Morgali and Virginia E. Morgali, his wife, for cancellation and
rescission of a deed for some 240 acres of ranch land and improvements alleged to be worth
$65,000, executed by the plaintiff to the defendants, and for further relief. She alleged that the
relation of client and attorney existed between her and Morgali; that while she was in a
weakened physical and mental condition Morgali wrongfully induced, counseled, influenced
and advised her to convey the property to him; that she received no consideration therefor;
that Morgali thereafter transferred the property to his wife; and that both defendants have
since been in possession. It subsequently appearing that both defendants had thereafter
conveyed to Morgali Mining Co., that corporation was joined as a defendant.
corporation was joined as a defendant. The defendants answered separately, putting in issue
all of the material allegations of the complaint. Morgali alleged that the conveyance to him
was for a good and valuable consideration and pursuant to a written contract, which he
attached as an exhibit. He alleged as a special defense that the plaintiff and one Tom
McCreary, who was then her husband, entered into a certain property settlement agreement
whereunder Ethel transferred to Tom the said contract and all indebtedness due Ethel from
Morgali thereunder and all rights accruing and to accrue under such contract. The property
settlement agreement and the transfer of the contract rights under the Kaupp-Morgali contract
were also attached as exhibits, as was a copy of her actual assignment of the contract made
pursuant to the property settlement agreement.
As a further defense Morgali alleged that said property settlement agreement was
thereafter approved by the Second judicial district court, Washoe County, Nevada, in a
divorce action brought by Ethel against Tom, and attached as an exhibit a copy of the
findings, conclusions and decree in that action. He alleged that the findings and decree
established McCreary as the owner of the rights under the contract and that Ethel was
estopped from claiming any rights thereunder. As a further defense Morgali asserted that
thereafter McCreary had commenced an action to enforce the terms of the said property
settlement agreement; that Ethel by her answer in said case had put in issue the validity of
said property settlement agreement and that the court thereafter in such proceeding made its
findings, conclusions and judgment, adjudging, among other things, that the assignment by
Ethel to Tom of her interest in the Kaupp-Morgali contract be confirmed and ratified, and that
such judgment has become final and that by reason thereof Ethel was further estopped from
asserting any claims in the property. Copies of the proceedings in said last mentioned action
were further attached as exhibits.
attached as exhibits. As a further defense Morgali pleaded laches. Ethel, as plaintiff, replied
to the separate answers, again asserted that she had received no consideration for the property,
admitted the execution of her property settlement agreement with her husband, and alleged
that the court's judgment in the action brought by Tom against her to enforce the property
settlement agreement was to hold that the same was void and a nullity by reason of mutual
mistakes of facts made by the parties thereto, said mistakes consisting of erroneous beliefs
entertained by each of the parties as to his and her ownership of or interest in the property
which was the subject matter of the agreement. Plaintiff denied all allegations to the effect
that her rights under the Kaupp-Morgali agreement were owned by Tom McCreary.
The case was tried to the court without a jury and the trial occupied some ten days. The
record before us contains seven volumes comprising over 1,500 pages, in addition to the
voluminous briefs filed by the parties.
The trial court made findings as follows: That defendant at all of the times involved was
an attorney at law practicing in Nevada; that from February 1, 1948 to March 31, 1949 the
relationship of attorney and client existed between plaintiff and defendant, or if it did not
exist during all of that time the influence arising from the attorney-client relationship existed
between said parties; that on August 23, 1948 plaintiff conveyed to defendant and his wife
the real property involved in this action containing some 250 acres of agricultural lands with
water rights in Douglas County, Nevada, then worth approximately $50,000; that the
consideration received by plaintiff for the transfer was the cancellation of an attorney fee due
Ralph Morgali in the amount of $6800; that on February 18, 1949 defendant conveyed the
property to his wife without consideration; that his wife had notice of all of the facts and
circumstances of the conveyance; that she thereafter conveyed to Morgali Mining Company
without consideration, which company had never issued any stock, had no assets, and
"was the alter ego of Ralph Morgali"; that at the time of the execution of the conveyance
from plaintiff to defendant and for a long time prior thereto plaintiff was in a weakened
physical and mental condition and was incompetent to transact the business transaction
in question, all of which was known to defendant; that defendant wrongfully and
fraudulently induced, counseled, influenced and advised the plaintiff to execute the deed
and convey the property to defendant and his wife; that plaintiff relied upon the advice of
defendant and had confidence in him and at no time had any independent advice in
connection with the conveyance; that defendant and his wife have since remained in
possession and have not accounted for rents, issues and profits; that defendant "has
spent money and made improvements thereon"; that defendant and his wife borrowed
$10,000 on the property secured by a deed of trust thereon, which is still a valid lien
against the premises, and used the said $10,000 for their own uses and purposes.
thereafter conveyed to Morgali Mining Company without consideration, which company had
never issued any stock, had no assets, and was the alter ego of Ralph Morgali; that at the
time of the execution of the conveyance from plaintiff to defendant and for a long time prior
thereto plaintiff was in a weakened physical and mental condition and was incompetent to
transact the business transaction in question, all of which was known to defendant; that
defendant wrongfully and fraudulently induced, counseled, influenced and advised the
plaintiff to execute the deed and convey the property to defendant and his wife; that plaintiff
relied upon the advice of defendant and had confidence in him and at no time had any
independent advice in connection with the conveyance; that defendant and his wife have since
remained in possession and have not accounted for rents, issues and profits; that defendant
has spent money and made improvements thereon; that defendant and his wife borrowed
$10,000 on the property secured by a deed of trust thereon, which is still a valid lien against
the premises, and used the said $10,000 for their own uses and purposes.
The court's conclusions of law and judgment canceled the deed, awarded judgment against
defendant and his wife for $10,000 and costs and awarded immediate restitution.
[Headnotes 1, 2]
(1) Defendant lists twelve separate assignments of error. Several of them attack the
findings as not supported by the evidence and as contrary to the evidence. The first of these
has to do with the finding of the attorney-client relationship between the parties, the second
deals with the matter of the consideration for the transfer, the third deals with the finding of
incompetency of Ethel Kaupp, the fourth attacks the finding that Ethel had no independent
advice in the matter of entering into the contract of sale of the property to her attorney. The
finding of the value of the property is also attacked.
also attacked. With the exception of the finding as to the consideration passing from Morgali
to Ethel for the conveyance, with which we shall deal later, all of the findings attacked were
made under evidence that was greatly conflicting on every point. Testimony concerning the
attorney-client relationship over a long period of time occupied many pages of the record.
The court's finding as above quoted finds ample support in this record. The same may be said
as to the finding of incompetency of the plaintiff. Lay and expert testimony dealt with the
subject at great length. Evidence as to whether Ethel had independent advice and evidence as
to the value of the property is likewise in direct conflict. These conflicts are so apparent from
the record that it becomes entirely unnecessary to refer to the testimony at any length. With
substantial testimony to support the findings thus attacked, we follow our well recognized
rule and decline to disturb them. Appellant maintains that under our recognized exception to
the rule we should hold that the court so patently came to the wrong conclusion that the
judgment of rescission must be reversed. But see Davidson v. Streeter, 68 Nev. 427, 234 P.2d
793. We are unable to say, however, that such is the case.
The sales contract in question provided for a sale of the property for $25,000, to which
consideration was added the cancellation of accrued attorney fees due Morgali from Ethel in
the sum of $6,800 and the waiver by Morgali of any payment of a general retaining fee for a
period thereafter. A tentative and rather unsatisfactory valuation of such retaining fee was
later given as $2,400. As noted, the court found that the property was worth $50,000. The
evidence was to the effect that the cost of the property to plaintiff was some $65,000. The
contract provided that Morgali was to obtain a loan on the property in as great a sum as
possible, which he was to turn over to Ethel. This was to be credited upon the $25,000
balance. He obtained $10,000 on a first mortgage but never paid any of this to Ethel.
mortgage but never paid any of this to Ethel. The balance of the $25,000 was to be secured by
a second deed of trust, payable within three years with interest at 5 percent. The 1947 hay
crop was to be sold and applied on the note. No hay sale proceeds were thus applied. The
entire $25,000 balance due from Morgali for the property was, in a manner to which further
reference must be made later, relinquished and canceled. Any future services under the
general retainer arrangement were apparently made impossible. This leaves as the entire
consideration Morgali's relinquishment of his $6,800 accrued attorney fees.
The combination of Ethel's emotional instability, her chronic alcoholism (requiring
repeated hospitalization), her erratic actions, her ten or more marriages and divorces (three of
which concerned the one husband Tom McCreary), the attorney-client relationship, the
undoubted overreaching in the matter of the contract, picture a situation under which no
appellate court would be apt to say that the trial court had come to a wrong conclusion in
holding that the conveyance should be set aside. In such findings and judgment we find no
error.
[Headnotes 3, 4]
(2) Appellant contends that the judgment must be reversed because it affirmatively appears
that the plaintiff is not the real party in interest; that long prior to the commencement of this
action she had sold to Tom McCreary all her interest as vendor in the Kaupp-Morgali contract
of sale of the ranch in question. The Kaupp-Morgali contract was entered into August 23,
1948. On January 3, 1949 Ethel and Tom entered into the property settlement agreement
whereunder she assigned to Tom her interest in the contract. On the same date a divorce
decree was entered, approving the property settlement agreement. On June 9, 1949 McCreary
commenced his action against Ethel for enforcement of such property settlement agreement,
resulting in a judgment which set aside the property settlement agreement on account of
mistake of facts by the parties, modified the distribution of the property in some respects
and then ordered "that except as hereinabove set out each party shall have and own all
property now standing in his or her name, free from any and all right, claim or demand by
the other party."
ment on account of mistake of facts by the parties, modified the distribution of the property in
some respects and then ordered that except as hereinabove set out each party shall have and
own all property now standing in his or her name, free from any and all right, claim or
demand by the other party. It is asserted by appellant that in view of this judgment and the
undenied facts that the rights under the Kaupp-Morgali agreement had therefore been
assigned to and stood in the name of Tom McCreary and by reason of the provisions of sec.
8543, N.C.L.1929, requiring an action to be brought and maintained by the real party in
interest and by reason of the interpretation by this and other courts of the provisions of such
statute, Ethel McCreary was obviously not the real party in interest, not entitled to bring this
action and that the same should have been dismissed by the district court on account of
nonjoinder of the essential party plaintiff.
The first reaction to this contention, which we shall not pursue at length, is the fact that the
action is not brought under the contract, nor for a recovery from Morgali of the sums due
thereunder, nor to enforce any of the provisions thereof, but to set the deed aside on the
ground of fraud. The second answer to the claim of nonjoinder of McCreary is the fact,
clearly established by the evidence, that McCreary, immediately after receiving such
assignment, had waived and relinquished all claim against Morgali thereunder. In reply to
this, appellant asserts that McCreary's waiver and relinquishment of any claims under the
assigned contract could be proved only in an action to which he was a party; that McCreary
might admit the cancellation but deny consideration for it; deny the execution of the release;
allege fraud in its inducement or some other matter in avoidance. If we should concede a
real, as well as a hypothetical possibility for such a situation, the contention would be a
serious one. It becomes necessary however to examine the facts with reference to Ethel's
assignment of the contract to McCreary. The time was January 2, 1949, the day before
Ethel's final divorce from McCreary. It was 7:30 p.m., and Morgali's secretary was
working overtime completing the typing of the separation agreement.
January 2, 1949, the day before Ethel's final divorce from McCreary. It was 7:30 p.m., and
Morgali's secretary was working overtime completing the typing of the separation agreement.
Ethel and Morgali were returning to the office after a brief absence, and Morgali testifies:
As we were returning to my office Mrs. McCreary asked me about my fee in the matter,
over and above my general retainer, since August 26, 1948. I informed Mrs. McCreary that
due to the immense responsibility involved I felt that my fee should be substantial. She asked
me if I would be agreeable to accept the cancellation of the balance of my obligation under
the contract of purchase for the Minden ranch for my fee.
I told Mrs. McCreary that while I could use cash, that would be agreeable to me if it was
agreeable to she and Mr. McCreary.
She then stated that upon the return to my office she would cancel the contract, or
suggested if I had any other method. I informed Mrs. McCreary the propertythe contract
was probably community property, or at least it was involved in the separation agreement,
and I felt it should either go to one party or the other for cancellation, or they should effect a
joint cancellation of the contract, the remaining obligations under the contract.
Mrs. McCreary then suggested that it be assigned to Mr. McCreary with the instructions
to him to cancel the balance of the obligation immediately in full payment to me for the
services over and above the general retainer that I had performed for the parties to date.
I told Mrs. McCreary whichever way she desired was all right, but that I would prefer it
to be assigned to her and she cancel same. She stated in that way, the way that she desired
concerning the assignment to Mr. McCreary, that it would stop him from any futureoh, any
future obligation or any future payment for any work that I may have performed for the
community of Mr. and Mrs. McCreary during their last marriage.
Accordingly the distribution agreement included in the description of the property to go to
McCreary the following:
That certain contract note and/or evidence of indebtedness due Ethel B. McCreary as part
of consideration of sale for that certain premises known as the Minden Ranch (Tietje Ranch),
Douglas County, Nevada.
On the following day, January 3, 1949, the agreement was signed and acknowledged by
the parties, and in the afternoon of that day Ethel's divorce case was called up for hearing by
Morgali and the decree signed. Thereafter Morgali and his client left for his office to execute
the assignment of the balance of the obligation under the contract to be canceled by Mr.
McCreary as I [Morgali] had prepared it during the day. Morgali prepared an instrument of
cancellation, and McCreary called at his office the following day, January 4, to carry out his
understanding of the instructions given. This release recites that he has been paid in full by
the grantees in the Kaupp-Morgali contract and forever releases and discharges Morgali and
his wife from all claims and demands from the beginning of the world to date. The release is
general and couched in the most comprehensive terms. The gist of the entire matter was that
Morgali was to be relieved of his obligation under the contract to pay $25,000. At the
moment the contract was owned by Ethel. Morgali seemed to feel that rights under the
contract should definitely vest in one or the other of the marital parties and be by that one
released or that the release should be executed by both. According to Morgali, Ethel seemed
to want McCreary's signature on the release so she assigned to McCreary and McCreary
released. McCreary's relationship could hardly be dignified even by the name of agency. He
was a mere conduit through which the transaction passed. The importance of the actualities of
the situation lies in the fact that it is established by the sworn testimony of Morgali against his
present contention that he is in danger of being subjected to some future suit by McCreary for
the $25,000 balance.
McCreary for the $25,000 balance. The inadequacy of this contention is emphasized by the
fact that both Ethel's assignment and Tom's release were immediately delivered to Morgali,
who thereafter retained possession of both instruments. The contention that McCreary was
the real party in interest and an indispensable party plaintiff to the present action is without
merit.
[Headnote 5]
(3) It is next contended that the judgment of February 21, 1950, in McCreary's action to
enforce the January 3, 1949 divorce decree and settlement agreement (as well as the judgment
of January 3, 1949, itself) is res judicata as fixing the ownership of rights under the
Kaupp-Morgali contract in McCreary. This contention derives from the fact that such
judgment, after requiring conveyances of certain properties by one party to the other, decreed
that except as hereinabove set out each party shall have and own all property standing in his
or her name, free from any and all right, claim or demand by the other party. But in no sense
was this an adjudication that McCreary was the owner of such rights as to make him the real
party in interest in the present action. Thirteen months before the judgment in question he had
relinquished and waived all rights that had possibly momentarily vested in him under his
wife's assignment. The plea of res judicata is not good.
[Headnotes 6, 7]
(4) Appellant assigns as error the failure of the trial court to require the return by plaintiff
to defendant of the consideration paid by defendant. This refers to the $6,800 attorney's fees
due defendant from plaintiff for services, no part of which has been paid. The trial court, in
considering the value of the property as against the purchase price fixed by the contract,
included in such purchase price the $6,800 attorney fees. It recognized that defendant did
considerable work for plaintiff as shown by the voluminous record including sixty-nine
exhibits, and that he had not been paid. It said: The testimony was that upon the interview
at the Allen ranch in July, 194S the defendant presented his bill for $6S00.
testimony was that upon the interview at the Allen ranch in July, 1948 the defendant
presented his bill for $6800. The client thought this reasonable. This finds ample support in
defendant's testimony of his presentation of his accounts, the plaintiff's examination thereof,
her conclusion that they were fair and her promise to pay the same at a later date.
It should be noted that the amended complaint contained the following paragraph:
That in event the court holds that plaintiff received any consideration for the said transfer
and the said execution of said deed, the plaintiff offers to account for any consideration
received and to do equity in all respects.
When it came to preparing the findings, plaintiff submitted a proposed finding as follows:
That at no time did plaintiff receive any consideration from anyone for the said transfer and
conveyance of the above described real property.
Defendant proposed to strike said entire finding and to insert in lieu thereof That plaintiff
did receive consideration from defendant Ralph Morgali for the transfer and conveyance of
the real property described herein. The court rejected both of said proposed findings on this
point and found:
That the consideration received by plaintiff for the said transfer and conveyance of the
above described real property was the cancellation of an attorney fee due Ralph Morgali in
the amount of $6800.
It would appear that the court adopted appellant's theory and the testimony in support
thereof to the effect that the accounting showing a $6,800 balance due defendant was agreed
to by plaintiff; that this amount was actually due and was the consideration paid. Respondent
contends on the contrary that there was no proof of the value of defendant's services, that the
burden was upon defendant to prove such value, that the facts preclude a setoff of this amount
against the $10,000 judgment and that the authorities supporting the general rule requiring
the plaintiff to do equity and requiring a return of the consideration upon the annulment
of a conveyance of real property do not involve cases of attorney-client relationship.
the general rule requiring the plaintiff to do equity and requiring a return of the consideration
upon the annulment of a conveyance of real property do not involve cases of attorney-client
relationship. We do not find these contentions sound. In view of the account stated (supported
by hundreds of pages of testimony and 69 exhibits), the examination and approval thereof by
the plaintiff and her promise to pay the same, all of which were found in the court's opinion,
if not in its findings, neither proof nor finding as to reasonable value was essential on this
item, asserted as a setoff against the $10,000 judgment. Section 8923, N.C.L.1929, provides
in part: The compensation of an attorney and counselor for his services is governed by
agreement, express or implied, which is not restrained by law. Such an element was not
considered in Martin v. Dixon, 49 Nev. 161, 241 P. 213, relied on by respondent.
There is nothing inconsistent in supporting on the one hand the court's finding of Ethel's
lack of competency to enter into the Kaupp-Morgali contract (when considered in connection
with the attorney-client relationship, the inadequacy of price, the overreaching by the
attorney, etc.) and the court's finding that a month earlier, namely, on July 25 or 26, 1948,
Ethel was competent to approve an account stated by Morgali with reference to his attorney
fees accrued to that date. Again we find it unnecessary to review the testimony. It is evident
however that Ethel's chronic alcoholism, from her first conferences with her doctor in Reno in
January, 1948, through her three divorces from McCreary, her property settlements with him,
her dealings in real estate, her many matters of litigation, etc., up to the time of the
commencement of this action in May, 1950, did not incapacitate her at all times and in all
places and in all matters from entering into business transactions. The court made its finding
of fact with reference to the $6800 attorney fee due Ralph Morgali, deliberately and
advisedly and after rejecting a different finding proposed by each of the parties.
proposed by each of the parties. The authorities submitted by respondent requiring proof of
the reasonableness of the attorney fees asserted in various kinds of actions do not apply here.
In view of the court's finding, it was error not to set off the $6,800 attorney fees against the
$10,000 judgment.
The judgment of rescission and the order denying new trial with reference thereto are
hereby affirmed. The judgment in favor of plaintiff and against defendant for $10,000
damages is reversed, and the case is remanded to the district court with instructions to enter
as a credit against said judgment the sum of $6,800 and to enter judgment against defendant
for the balance, namely, $3,200.
Each party will pay his or her own costs in this court.
____________
70 Nev. 271, 271 (1954) In Re Condos's Estate
No. 3754
In the Matter of the Estate of PAUL CONDOS, Who Was Also Known as PAUL A.
CONDOS, Deceased.
FIRST NATIONAL BANK OF NEVADA, Reno, Nevada, Appellant, v. ELLEN
AGNES CONDOS, Respondent.
No. 3755
In the Matter of the Estate of PAUL CONDOS, Who Was Also Known as PAUL A.
CONDOS, Deceased.
ELLEN AGNES CONDOS, Appellant, v. FIRST NATIONAL BANK OF NEVADA,
Reno, Nevada, Respondent.
Nos. 3754-3755
February 1, 1954. 266 P.2d 404.
Probate proceeding. The Second Judicial District Court, Washoe County, Harold O. Taber,
Judge, Department No. 3, entered orders directing executors of husband's estate to deliver
wife's share in community estate to wife, and to calculate executor's compensation on basis of
husband's share alone, and directing wife to convey to executor one-half of bonds which were
in safe deposit box, and executor and wife filed cross appeals. The Supreme Court, Merrill,
J., held, inter alia, that where deceased husband disposed of his share in community estate by
will, entire community estate was subject to administration and subject to expenses of
administration.
Case Number 3754: Reversed and remanded with instructions.
Case Number 3755: Affirmed.
Arthur F. Lasher, of Reno, for First National Bank of Nevada.
I. A. Lougaris, of Reno, for Absent Beneficiaries.
E. P. Carville and Leslie E. Riggins, of Reno, for Ellen Agnes Condos.
1. Husband and Wife.
Under statute which provides that, in case of dissolution of community by death of husband, entire
community property is subject to husband's debts, family allowance, and charges and expense of
administration, widow's share in community property is subject to portion of expense of administering
deceased husband's share. N.C.L.1931-1941 Supp., sec. 3395.02.
Wife's interest in community property vests upon acquisition of such property by the community, but
vesting does not carry with it rights of exclusive possession or control.
Where deceased husband disposed of his share in community estate by will, wife's share in estate was
subject to administration in manner similar to administration of decedent's estate, to extent necessary to
settle marital affairs, discharge obligations against community, establish extent of respective moieties, and
discharge and accomplish partition or division of estate into moieties. N.C.L.1931-1941 Supp., secs.
3395.01, 3395.02.
4. Constitutional Law; Husband and Wife.
Although wife's interest in community property vested upon acquisition of property by community, wife's
share of community estate was subject to administration upon death of husband who disposed of his share
by will, and therefore subjecting wife's share to cost of administration of community estate did not
constitute taking wife's property to pay for administration of husband's estate or constitute depriving wife
of her property without due process of law. N.C.L.1931-1941 Supp., sec. 3395.02.
Statute providing for devolution and administration of deceased husband's share in community property
authorizes district court to administer entire community estate where such administration is necessary.
N.C.L.1931-1941 Supp., sec. 3395.02.
Where deceased husband disposed of his share in community estate by will, and where entire community
estate was subject to administration, husband's executor, as administrator of the community estate, was
entitled to compensation based on value of entire community estate.
In probate proceeding, evidence did not overcome presumption that bonds, which were kept in safe
deposit box by wife and deceased husband, were community property, and that one-half thereof passed
under husband's will.
In probate proceeding on will of deceased husband, evidence sustained findings that bonds, which were
kept in safe deposit box by wife and deceased husband, had not been given by husband to wife as gift and
that bonds were not held by husband and wife in joint tenancy.
That bonds were kept in safe deposit box held jointly in names of wife and deceased husband did not
establish that bonds were held by wife and deceased husband in joint tenancy.
That deceased husband had, in list of assets which he prepared, described bonds as belonging to husband
or wife, did not establish that there had been transfer or agreement whereby bonds were held by husband
and wife in joint tenancy.
OPINION
In these two cases separate cross appeals have been taken by the parties from an order of
the court below setting apart to Ellen Condos certain property as her share of a community
estate. For purposes of expedition the two appeals were consolidated for argument before this
court and this opinion will dispose of both matters.
Case Number 3754
The question here presented may be stated generally as follows: Where the deceased
husband has by will disposed of his share of a community estate and such share is therefore
subject to administration, is the widow's share likewise subject to administration?
Paul Condos died August 28, 1952 leaving a widow surviving him, Ellen Condos, the
respondent herein. At the time of his death a community estate had been accumulated of a
value of $284,000. The decedent left a will disposing of the entire community in trust to
provide support for his widow throughout her lifetime and, upon her death, to certain
designated charities. By the terms of the will the widow was given an election to consent to
such disposition of the community estate.
such disposition of the community estate. Should she fail to consent and, instead, demand the
share of the community to which she was entitled by law, the decedent's share then went
outright to the designated charities. Appellant First National Bank of Nevada was named
executor.
The widow elected not to consent to disposition of the entire community and petitioned the
court below for an order establishing and decreeing that one-half of the community estate
vested in her without administration. An order was made by the court to this effect which also
provided, That the commissions of the Executor can only be calculated and fixed on the
personal estate of said Decedent and not on the community property interest of the surviving
wife; that the attorney for the estate can only be compensated for the service he renders the
estate, and both statutory commissions and attorneys' fees must come from the estate of said
Decedent. Further the order directed the executor to deliver to the widow one-half of the
estate property after deducting therefrom a sum sufficient to pay one-half of the debts of said
Decedent * * *.
From this order the executor has appealed. It contends that the entire community including
the widow's share is subject to administration and to expenses of administration and that the
whole thereof should be taken into consideration in fixing compensation for such
administration.
The controlling statute is sec. 3395.02, N.C.L.1929, Supp. 1931-1941, which provides in
part as follows: Upon the death of the husband one-half of the community property shall vest
in the surviving wife, and the other half is subject to the testamentary disposition of the
husband, and in the absence of such disposition goes to his surviving children equally, and in
the absence of both such disposition and surviving children, the entire community property
shall vest without administration in the surviving wife, except as hereinafter provided,
subject, however, to all debts contracted by the husband during his life that were not barred
by the statute of limitation at the time of his death; * * *.
husband during his life that were not barred by the statute of limitation at the time of his
death; * * *. In case of the dissolution of the community by the death of the husband, the
entire community property is equally subject to his debts, the family allowance, and charges
and expense of administration; provided, however, that if in the absence of said testamentary
disposition the surviving wife and children, and in the absence of such children, the wife shall
pay or cause to be paid all indebtedness legally due from said estate, or secure the payment of
the same to the satisfaction of the creditors of said estate, then and in such case the said
community property shall not be subject to administration.
The question presented involves several problems which may be attacked consecutively.
Since it appears that the entire estate was community property, we are not faced with the
question of the liability of the community for the expenses of administration of the husband's
separate estate. Many additional questions with reference to the administration of community
estates are suggested by the matters here considered and the temptation to explore and
attempt in anticipation to settle them is indeed great. We do, however, confine ourselves
strictly to those questions which we feel are necessary to the present appeal and reflect
directly upon those actions of the lower court assigned as error.
[Headnote 1]
First: Regardless of whether the widow's share is itself subject to administration, is it
subject to any charges other than those specified by the court below, i.e., debts of the
decedent?
In this respect the quoted statute is explicit to a point where, in our view, there is no room
for interpretation. It provides: In case of the dissolution of the community by the death of the
husband, the entire community property is equally subject to his debts, the family allowance,
and charges and expense of administration. The lower court was then in error in releasing
the widow's community estate from its proportionate share of the expenses of
administration.
expenses of administration. To determine what those expenses may properly include we must,
however, inquire further.
[Headnote 2]
Second: Is the widow's share itself subject to administration?
It should be noted that the quoted section in one instance expressly makes use of the
phrase, without administration. In one instance it expressly provides that the said
community property shall not be subject to administration. The preceding section respecting
the rights of a husband upon death of the wife provides in part, Upon the death of the wife
the entire community property shall vest without administration in the surviving husband, * *
*. In contrast, the provision of sec. 3395.02 with which we are here concerned reads, Upon
death of the husband, one-half of the community property shall vest in the surviving wife.
Conscious as the legislature apparently was of the significance of the phrase without
administration and of the desirability of making express use of it in certain instances, it was
omitted in this instance. Was that omission significant? We feel that it was. The legislature
appears to have recognized that save in those cases expressly mentioned, court supervision
and control are essential to orderly procedure and to afford full protection to all concerned.
Upon this question, we conclude that the entire community under the circumstances of this
case is, by statute, made subject to administration.
Third: To what manner of administration is the widow's share then made subject?
Certainly it is not a decedent's estate. Respondent points out that under the established law
of this state the community interest of the wife is not a mere expectancy but vests upon
acquisition of the community property. She then contends that upon death of the husband the
share of the wife is property already vested in a living person, as much so as the interest of a
tenant in common or joint tenant and therefore is no more subject to administration than
such interests would be.
common or joint tenant and therefore is no more subject to administration than such interests
would be.
[Headnote 3]
We recognize that in this state a wife's interest in community property vests upon the
acquisition of such property by the community. In Re Williams' Estate, 40 Nev. 241, 161 P.
741, L.R.A. 1917C, 602; Petition of Fuller, 63 Nev. 26, 159 P.2d 579. It should be clearly
understood that by this decision we have no intention of departing in the slightest from that
well established principle. The vesting of that interest, however, does not carry with it the
rights of exclusive possession or control. As stated in 1 de Funiak, Principles of Community
Property, 573, sec. 203: Such statutory provisions as those that upon the death of the
husband one-half of the community property goes' to or vests' in the wife, cannot mean that
the ownership thereof goes' to or vests' in the wife for the wife already had such ownership
from the moment of acquisition of the community property during the marriage. What does
go' to or vest' in the wife is that which she did not have before, the administrative control of
her one-half of the community property which prior to his death was in the husband's hands,
and represents merely an administrative matter.
The nature of administration as that word is used in relation to a community estate is
pointed out in 1 de Funiak, supra, 581, sec. 205. With reference to the provisions of Spanish
law the author states, Where the husband was the deceased spouse, the liquidation of the
affairs of the marital partnership might be carried out during the administration of his own
estate. But the administration of the community estate would have to be separate from, if not
prior to, the administration of the separate estate of the deceased husband, and separate
accountings made, etc. It was quite true that immediately upon the death of a spouse, the heirs
of that spouse immediately obtained title to that spouse's share of the community property;
likewise, those heirs and the surviving spouse became entitled to have the community
property partitioned between them.
and the surviving spouse became entitled to have the community property partitioned
between them. Such rights were present and effective rights without the necessity of
administration to confer them, in the sense that we think of the necessity of administration
and of a decree of the proper court setting over to heirs their distributive shares. * * * The
point is that the title of the heirs was not dependent upon administration in order to vest title
in them, and the right of partition existed without an administration to confer it. But it is to be
recognized that community obligations had to be paid before it could be determined how
much community property existed which could be partitioned. To that extent there had to be
an administration' of the community estate. It might also be necessary to separate the
separate property from the community property. * * * There was the necessary termination of
pending transactions, the satisfaction of community obligations, and the division of the
residue of the community property to be accomplished.
Later, in the same section, supra, page 583, with reference to the statute law of the
community property states, it is said, In some of the states administration of the community
property takes place whether it is the husband or the wife who dies. * * * In others of the
states administration of the community property is required where it is the husband who dies,
but not where the wife is the deceased spouse and dies intestate as to her share of such
property. This is particularly true in those states where the wife takes over control of her share
of the community property on the death of the husband and the husband has the right of
testamentary disposition of his share, but the wife has no testamentary right to dispose of her
share which goes to the husband if she dies first.
The author points out that courts have sometimes confused the nature of administration
of a community estate and have overlooked the fact that administration of community
property is a thing apart from ordinary administration, in that it is actually settling up
matters relating to property which belongs in equal shares to the decedent's estate and to
a living person and not merely the administration of property belonging entirely to the
decedent's estate."
of community property is a thing apart from ordinary administration, in that it is actually
settling up matters relating to property which belongs in equal shares to the decedent's estate
and to a living person and not merely the administration of property belonging entirely to the
decedent's estate.
[Headnote 4]
It is, therefore, clear that the fact that the property belongs to the wife is not inconsistent
with its administration, as that term must be construed to have been used in sec. 3395.02. We
conclude that the entire community, in such a case as this, is subject to administration to the
extent necessary to settle the marital affairs and discharge the obligations against the
community, to ascertain the extent of the respective moieties which remain after such
settlement and discharge and to accomplish a partition or division of the estate into such
moieties. It is apparent that, save for the significance of the question of ownership, the
functions performed by the court and by its administrative officer in administering a
community estate are not unlike the functions performed in administering an intestate
decedent's estate.
[Headnote 5]
This in our view disposes of respondent's contention that to subject the estate of the wife
to charges for the administration of the estate of the husband is to take property without due
process of law in violation of constitutional provisions. As we have seen, the scope of the
court's administration includes authoritative action upon the entire community: the estate of
the wife as well as that of the husband.
[Headnote 6]
Fourth: By what means is this administration to be had? It is clear that authoritative court
action is necessary. Can or should jurisdiction over the community estate be taken by the
probate court? Are the procedures provided by our statute relative to estates of deceased
persons available for administration of a community estate one-half of which is vested in
a living person?
deceased persons available for administration of a community estate one-half of which is
vested in a living person?
In some community property states it is expressly provided by statute that separate
administration of the community estate shall be had, with the survivor acting as administrator.
In Nevada no procedure whatever is expressly provided for the administration of a
community estate. Yet, as we have indicated, administrative action under court supervision is
anticipated by the statute. Some process must be made available.
It is urged by respondent that the jurisdiction of the probate court is limited to
administration of estates of deceased persons; that it has no jurisdiction whatsoever to
administer the estates of living persons. This proposition is stated in McKay on Community
Property, 2d ed., p. 950, sec. 1466 as follows: As usually constituted, courts of probate have
jurisdiction over the estates of dead persons only and can distribute only to heirs, devisees or
legatees, or to those claiming through them.' In the absence of statute they have no
jurisdiction over the property of living persons, though there would seem to be no
constitutional objection to conferring on such courts a limited right to administer property, a
share or interest in which is drawn within the jurisdiction of the court by the death of the
owner of such share or interest. Instances are found in statutes conferring on probate courts
jurisdiction to administer the entire property of a commercial partnership, on the death of one
of the partners; and no doubt it is within the constitutional competency of the legislature to
extend the jurisdiction of the probate court over the property of the community on the death
of one of its members.
In the absence of action by the legislature expressly establishing a separate and distinct
administrative procedure, may it be said that in cases such as this, where administration is
required, sec. 3395.02 impliedly confers jurisdiction upon the district court in probate to
administer community estates?
jurisdiction upon the district court in probate to administer community estates? Such
apparently has been the general conclusion of courts of other states under similar
circumstances based upon practical considerations. La Tourette v. La Tourette, 15 Ariz. 200,
137 P. 426; Swinehart v. Turner, 44 Ida. 461, 259 P. 3; Ryan v. Ferguson, 3 Wash. 356, 28 P.
910, 912.
In Ryan v. Ferguson, supra, it is stated, In administering upon the estate of the deceased
member, community debts are proper charges against the same. The interest of the surviving
member in the community property must be subjected to its just share of this indebtedness in
some manner. If this whole property was not under the jurisdiction of the probate court, under
the circumstances of this case, the interest of the survivor could not be made to respond to
any part of these claims in the administration proceedings. Can it be said that it is the intent or
policy of the law that creditors must prove their claims against the community in the probate
court, in the first instance, in order to reach the interest of the deceased member in the
community property, and in case of a deficiency be driven to another forum to reach the half
interest of the surviving member in that same property, equally liable for that same debt? Or
that, where the interest of the deceased in such property has borne an undue share of these
debts, that the heirs of such member should be compelled to bring an action against the
survivor for a contribution? The law abhors a multiplicity of suits. Later the court states,
The statute says one-half shall go to the survivor subject to the community debts; and, from
the very nature of the case, it is held in abeyance or suspended to that extent, and cannot go
until these matters are determined and disposed of, and that which is to go is thus ascertained.
Otherwise, it would relegate the simple, straightforward proceeding of administering upon the
whole property to the awkward and involved one, to say the least,even if there was any
authority for it,of administering upon the interest of the deceased in such property.
upon the interest of the deceased in such property. No way is pointed out in which to obtain a
partition or division of it as a preliminary step, or for obtaining possession thereof, as in the
case of a partnership. It seems to us that it is the intention of the law that upon the death of
either spouse the whole community estate is subject to administration for the payment of
community debts and for distribution. As to what authority an executor would have over it,
we do not decide; but the whole community property would necessarily be brought under the
jurisdiction of the court, and disposed of in some manner.
In Swinehart v. Turner, supra, the rule is stated, On the death of either spouse, the
community property being liable for the community debts, the administration of the estate
draws to it the liquidation and settlement of the entire community estate for the purpose of
satisfying the community debts, which makes it necessary for the probate court to assume
jurisdiction over and administer both moieties of the community fund.
The holding of the courts in this respect has been criticized, and the necessities which the
courts have apparently regarded as controlling have been characterized as apparent rather than
real. See: McKay on Community Property, p. 960, sec. 1473. However, the fact remains that
in absence of statute providing specific procedures for the administration of community
estates, the courts uniformly appear to hold that administration by the probate court in
conjunction with the administration of the decedent's estate is proper. We see no good reason
to depart from this rule. Indeed to require independent administration of a community estate
preliminary to the administration of the husband's share thereof might well prove
comparatively cumbersome and expensive.
We therefore construe sec. 3395.02 as authorizing the district court in probate to
administer the community estate in its entirety where such administration is necessary under
the statute.
An examination of the order of the lower court in the light of our conclusions thus far is
enlightening. To the lower court its action constituted a setting apart without administration;
an exclusion from the decedent's estate of property which had no business to be there. This,
however, is to disregard the distinction between the two administrations contemporaneously
being had: administration of the community estate which, as the authorities have pointed out,
can hardly be accomplished by halves; and administration of the decedent's estate which can
hardly be had until the decedent's moiety authoritatively has been established.
Actually the court by its order has in effect directed the executor to accomplish a division
and partition of the community estate into its respective moieties and, impliedly, to account to
the court therefor. While disclaiming the need for or propriety of administration of the
community on the one hand, it has in effect entered upon it on the other.
[Headnote 7]
Fifth: Shall the widow's moiety be included in the estate for the purpose of fixing fees for
services rendered to the community?
In our view the conclusions we have already expressed provide the answer to this question.
The entire community is being administered by the court. Essential functions are being
performed by the court on behalf of the entire community in the settling of marital affairs and
division of the estate. The executor as administrator of the community estate is performing
the services necessary to the accomplishing of these ends. As we have noted, save for the
significance of questions of ownership and vesting of title, such services are not unlike those
performed on behalf of a decedent's estate. The executor in performance of his services to the
community is accountable for the entire estate. Its services are clearly subject to
compensation. The fixing of fees, then, must take into consideration the entire community
and the services performed on its behalf in its administration.
and the services performed on its behalf in its administration. Likewise the burden of
compensation for such services should fall upon the entire community and not solely upon the
moiety of the decedent.
Upon this appeal the lower court is reversed and the matter remanded (1) with instructions
that the order appealed from be set aside and (2) for such further proceedings not inconsistent
with this opinion as may in the judgment of the court be proper. Appellant is awarded its
costs.
Case Number 3755
The question here involved is whether the lower court erred in rejecting the contention of
the widow, Ellen Condos, that certain bonds formed no part of the community estate but were
hers by virtue either of gift or of joint tenancy survivorship.
The bonds in question, $12,000 in United States treasury bonds payable to bearer, were, at
the time of death, in a safe-deposit box to which both parties jointly had access. They had
been purchased by decedent in 1943 and 1944 and were placed in the box by Mrs. Condos in
May, 1952. Mrs. Condos contended in the alternative that although the bonds originally had
been community property (1) the husband's community interest had been given to her by him
in May, 1952; or (2) they had been transformed from community property into property held
in joint tenancy with right of survivorship. She petitioned the court to set aside the bonds to
her as her separate property.
The lower court determined that the bonds were community property and, by the same
order attacked by the appeal in the preceding case, ordered Ellen Condos to deliver to the
executor one-half of said bonds together with the accrued interest thereon. From this order
Ellen Condos has taken this appeal.
[Headnote 8]
In its written opinion upon this point the lower court stated: The Court has carefully
considered [the evidence] and is satisfied that it does not meet the legal requirements of
delivery with intent to pass title.
requirements of delivery with intent to pass title. At the most it creates a weak inference
which is insufficient to rebut the presumption that the bonds are community property. In our
view this decision should be sustained.
Upon the first alternativethat the husband's community interest had passed to the wife
by giftthe evidence was confined to testimony of two witnesses as to declarations made by
the decedent. The first witness testified to a conversation had with the decedent in June or
July, 1952. Referring to the decedent he stated: He told me about his will and he told me he
set up a trust fund but everything inside the safe deposit box would go to the wife and the
joint accountbut the rest was put in the trust fund. * * * He said [the government bonds]
belonged to his wife.
The second witness testified to a conversation with the decedent in August, 1952. In the
presence of Mrs. Condos the decedent had urged the witness to persuade Mrs. Condos to sell
her bonds and invest in stocks.
The declarations are not factual; are not of what decedent had done. Rather they are, by
implication, of what he thought or assumed or, perhaps, intended to do in the future. Clearly
there is no proof of delivery or intent. Any inference thereof which may be drawn is, indeed,
weak. We cannot regard as error failure of the lower court to attach to it weight sufficient to
meet the burden of proof.
Upon the second alternative, that a joint tenancy had been created, the evidence is, if
anything, even weaker. Two points are asserted:
[Headnote 9]
(1) The bonds at the time of decedent's death were in a bank safe-deposit box held by the
parties under joint tenancy agreement with the bank. That agreement in effect provided that
each party individually, without notice to or consent of the other, had rights of access to the
box, of its surrender and to remove its contents. By the overwhelming weight of authority
such an agreement, required by the bank as a matter of practice for its own protection,
cannot in and of itself constitute a creation of a joint tenancy in the contents of the box.
its own protection, cannot in and of itself constitute a creation of a joint tenancy in the
contents of the box. See Annotation: 14 A.L.R. 2d 948, 954; Accord: Stephens v. First
National Bank of Nevada, 65 Nev. 352, 196 P.2d 756.
[Headnote 10]
(2) In decedent's personal ledger and statement of assets the bonds were described by
decedent as U. S. bonds (Paul Condos or Ellen Condos). They were not expressly declared
to be in joint tenancy. It is impossible to read from the notation an intention on the part of the
decedent to create a joint tenancy by the notation or by the use of the word or. The wife was
not a party to it. The notation most clearly falls far short of constituting or evidencing a
transfer or agreement. Newitt v. Dawe, 61 Nev. 472, 133 P.2d 918, 144 A.L.R. 1462.
Subject to the decision and order entered in the preceding case, the lower court is affirmed
upon this appeal. Respondent bank is awarded its costs.
____________
70 Nev. 287, 287 (1954) McCall v. McCall
NORMA BREWER McCALL, Appellant, v. TEXAS
ALFORD McCALL, Respondent.
No. 3775
February 18, 1954. 266 P.2d 1016.
Department No. 1.
The Supreme Court, Merrill, J., held that trial court did not abuse its discretion in
awarding to husband certain items allegedly purchased with money received from a mining
lease which had been executed by husband and wife upon separate property of husband.
Judgment affirmed.
Harry E. Claiborne, of Las Vegas, for Appellant.
Jones and Pursel, of Las Vegas, for Respondent.
Where prior to marriage husband had a 45 percent equitable interest in mineral land and after marriage
holder of legal title, who also had a 45 percent equitable interest, deeded his interest to husband as a gift,
evidence in divorce action supported finding that mineral land was separate property of husband.
2. Divorce.
The court in granting a divorce is given extensive discretionary power to deal not only with community
property but with the separate property of the husband as well. N.C.L.1943-1949 Supp., sec. 9463.
3. Divorce.
Where trial court, in divorce action, found a lease had been executed by husband and wife upon separate
property of husband, and decreed that all rights, benefits, rents, profits and royalties arising therefrom
should be divided equally, trial court did not abuse its discretion in awarding to husband items allegedly
purchased from money received from mining lease.
OPINION
Appellant complains of a property division accomplished by the trial court in conjunction
with a decree of divorce granted in her favor.
She asserts, first, that the division was so inequitable as to amount to abuse of discretion.
In our view there is no merit whatsoever in this contention. Appellant was awarded one-half
of the community property plus a right to one-half of the only income produced by any of the
property of the parties. This income results from a lease upon mineral land, which land was
found to be respondent's separate property.
Appellant contends, however, that more than questions of discretion are involved; that the
trial court erred in finding certain items of property not to be community property.
Seventeen items of property were separately considered and awarded by the court. Of
these, six were found to be community property and equally divided. As to two items the
nature of the property interests of the parties was not specified. Of these two, one item (a
barren corporation without assets or issued stock) was awarded to respondent. The other, the
mining lease to which we have already referred, will be discussed later.
[Headnote 1]
The remaining items were found by the court not to be community property and were
awarded to respondent as his separate property. It is with these that we are concerned. The
only one of these items with any apparent substantial value is a group of mining claims
known as the Salisbury Claims. Prior to marriage of the parties respondent had a 45 percent
equitable interest in these claims, legal title to which was in one Prutzman who also had a 45
percent equitable interest. After marriage of the parties Prutzman deeded his interest to
respondent. According to testimony of Prutzman the interest was deeded as a gift. The record
thus supports the court's finding as to this item and it will not be disturbed.
The mining lease to which we have referred was upon the Salisbury Claims.
Notwithstanding the fact that the claims were respondent's separate property, respondent and
appellant both were signatory parties to the lease, being designated as lessors.
lease, being designated as lessors. According to respondent's testimony appellant's signature
was required by the lessee as a matter of precaution. As to this lease the court decreed that the
interest of the parties therein and all rights, benefits, rents, profits, and royalties arising
therefrom be awarded one-half to appellant and one-half to respondent.
[Headnotes 2, 3]
As to the remaining property items with which we are concerned, in each instance the
basis for appellant's claim of error is that according to respondent's testimony the items were
purchased with money received from the mining lease. Appellant appears to proceed upon the
assumption that the lease, all rights thereunder and all proceeds therefrom were community
property. The trial court, however, did not find that the lease was community property. It
limited itself to a finding that the lease existed and did not expressly determine the extent,
source or nature of appellant's interest. It does not necessarily follow from the court's action
that it must have found the lease to be community property. By sec. 9463, N.C.L.1929, Supp.
1943-1949, the court in granting a divorce is given extensive discretionary power to deal not
only with community property but with the separate property of the husband as well. In which
respect the court felt itself to be acting does not appear. Nor shall we speculate upon the
matter. The factual record certainly does not compel a finding that the lease or its proceeds or
items purchased therewith constituted community property, or that prior to the court's award
appellant had any ascertainable property interest therein.
No error appearing, the question remains one of discretion. As we have stated no abuse of
discretion has been shown.
Judgment affirmed. No costs are awarded.
____________
70 Nev. 290, 290 (1954) Strong v. Strong
JOHN MARK STRONG, by WM. K. WOODBURN, His Guardian Ad Litem, Appellant, v.
DIANA STRONG, Respondent.
No. 3771
February 24, 1954. 267 P.2d 240.
Appeal from order and judgment of the Second Judicial District Court of the State of
Nevada, in and for the County of Washoe; John S. Belford, Judge, Department No. 1,
granting a motion for summary judgment.
Action by unemancipated minor against his mother for wrongful death of his father. The
Supreme Court, Eather, C. J., held that the wrongful death statute did not directly repeal the
common law rule of immunity of parent from suit by minor child.
Affirmed.
Woodburn, Forman and Woodburn, and Gordon R. Thompson, of Reno, for Appellant.
Pike & McLanghlin, of Reno, and Donn B. Downen, Jr., of Los Angeles, California, for
Respondent.
1. Parent and Child.
Wrongful death statute does not directly repeal common-law rule of immunity of parent from suit by
minor child. N.C.L.1931-1941 Supp., sec. 8554.
Appellant having disclaimed any contention that wrongful death statute repealed, by implication,
common-law rule negativing minor's right to sue parent in tort, reviewing court would be justified in
adopting same theory and considering only contention that there was an express repeal. N.C.L.1931-1941
Supp., sec. 8554.
OPINION
The appellant, a minor child, not yet two years old, brought this action by his guardian ad
litem against his mother to recover for the death of his father, alleged to have resulted from
her negligent driving of an automobile.
to have resulted from her negligent driving of an automobile.
On May 4, 1953, a complaint was filed with the Second judicial district court by William
K. Woodburn as guardian ad litem for John Mark Strong, plaintiff, against Diana Strong,
defendant. The complaint contains two causes of action and alleges, in substance, that the
death of John Strong was caused by the negligence, gross negligence and wilful misconduct
of Diana Strong while driving a 1951 MG automobile on October 11, 1952, and that by
reason of such death plaintiff John Mark Strong was deprived of the support, comfort, society
and moral and intellectual training of his father to his damage in the sum of $50,000. The
complaint further alleged that the plaintiff John Mark Strong and the defendant Diana Strong
are the only surviving heirs of the decedent.
On May 26, 1953, the defendant moved to dismiss the action upon the grounds:
(a) That the complaint failed to state a claim upon which relief could he granted;
(b) That the complaint failed to join an indispensable party plaintiff.
The motion to dismiss was, by consent of the attorneys, treated as a motion for summary
judgment and orally argued before the trial court on July 24, 1953. On July 28, 1953, the trial
court entered its order granting defendant's motion for summary judgment.
On August 26, 1953, plaintiff filed a notice of appeal from said judgment.
We accept appellant's statement of the issue involved in this appeal. It is: Does sec. 8554,
N.C.L., 1931-1941 Supp., give to an unemancipated minor the right to maintain an action for
damages against his mother for the wrongful death of his father? The section in question
reads as follows:
Sec. 55. When the death of a person not a minor is caused by the wrongful act or neglect
of another, his heirs, or his personal representatives for the benefit of his heirs, may maintain
an action for damages against the person causing the death, or, if such person be
employed by another person who is responsible for his conduct, then also against such
other person.
his heirs, may maintain an action for damages against the person causing the death, or, if such
person be employed by another person who is responsible for his conduct, then also against
such other person. If such adult person have a guardian at the time of his death, only one
action can be maintained for the injury to or death of such person, and such action may be
brought by either the personal representatives of such adult person deceased for the benefit of
his heirs, or by such guardian for the benefit of his heirs as provided in sec. 54. In every
action under this and the preceding section such damages, pecuniary and exemplary, may be
given as under all the circumstances of the case may be just.
The nature and effect of the foregoing wrongful death statute as existing in this case has
heretofore had the attention of this court and the federal court for this district. In Wells, Inc.
v. Shoemake, 64 Nev. 57, 66, 177 P.2d 451, 456, we said:
The common law afforded no remedy in damages for a wrongful death. Whatever
standing plaintiffs have in the present case must be found in the statutes of Nevada. The
remedy, being wholly statutory, is exclusive. The statute provides the only measure of
damages, and designates the only person who can maintain such an action. Salmon v.
Rathjens, 152 Cal. 290, 92 P. 733.
And in Estes v. Riggins, 68 Nev. 336, 338, 232 P.2d 843, 844, we described the nature of
the cause of action as follows:
The recovery sought in this case is solely for the injury alleged to have been caused to
plaintiffs by the death of the husband and father, who was their support; in other words, for
the injury they sustained and not for the injury to Robert Estes. At common law, there would
be no cause of action in them; it would be considered that they had not sustained any
compensable loss. But many years ago the legislatures of the various states enacted laws
giving rights of action under such circumstances.
circumstances. Thereby new causes of action came into being which otherwise would not
exist.
In Perry v. Tonopah Mining Company (District Court, Nevada) 13 Fed.2d 865, 870, the
cause of action was thus characterized:
The Nevada statute does not profess to continue or revive an action which the injured
person might have maintained if death had not ensued. That right of action is extinguished by
death. What the statute does give is a new and independent right of action to the kindred who
are injured by the death. It is a right of action which has no existence until the death of the
injured party, and results therefrom. It makes no account of wrong done to the deceased; it is
only concerned with the loss to the relatives.
[Headnotes 1, 2]
It is clear then that the common law has been modified in this state by legislative act
giving a cause of action for wrongful death. It is maintained by appellant that the same statute
likewise modified the common-law rule, which appellant frankly recognizes, negativing the
right of a minor to sue a parent in tort. Appellant's contention is based upon the assertion that
the right given to the heirs of the deceased person, or to the deceased's personal
representatives for the benefit of his heirs, for the death of such deceased person when caused
by the wrongful act or neglect of another, is without restriction or limitation. It is asserted that
this absence of restriction or limitation draws into the meaning of the statute the right of the
minor child to sue the mother for the wrongful death of the father. It is contended that the
statute does not deal with particular deaths by wrongful act, nor with particular parties, but
applies to all deaths by wrongful act, and permits suit by any individual if he be a member of
the class specified in the statute, to-wit, an heir; that in like manner the statutory action
against the person causing the death is not limited to cases where such person is not the
mother or father of the heir suffering the loss. Under this theory appellant disclaims any
contention that the statute in question repeals the common-law immunity rule by
implication {see Cunningham v. Washoe County, 66 Nev. 60
disclaims any contention that the statute in question repeals the common-law immunity rule
by implication (see Cunningham v. Washoe County, 66 Nev. 60, 203 P.2d 611), but urges
that the statute is in itself a direct repeal. The learned district judge rejected this contention
and we are in accord with such rejection. If we adopt appellant's theory of making no resort to
any asserted repeal by implication (which we are justified in doing), we then search in vain to
find in sec. 8554 any words effecting such express repeal. A cause of action for wrongful
death is created by certain and unmistakable language. Such derogation of the common law is
beyond reasonable dispute.
1
That the cause of action should be limited to his heirs or to his
personal representatives for the benefit of his heirs is a limitation. The requirement that if the
deceased had a guardian at the time of his death only one action might be brought (either by
such guardian for the benefit of the heirs or by the personal representatives for the benefit of
the heirs) is a further limitation. The last sentence of the section defines the damages that may
be awardedthe addition of the words pecuniary and exemplary having been made by the
legislature in 1939, Stats. 1939, 17. Nowhere is there a direct repeal of the common-law rule
of immunity of the parent from suit by a minor child.
Appellant presents, as the only reported case directly in point, Minkin v. Minkin, 336 Pa.
49, 7 A.2d 461, 462, in which case the court upheld, under the Pennsylvania statute, the suit
of an eight-year-old minor, through her next friend, against the minor's mother to recover
for the wrongful death of the minor's father.
____________________

1
A portion of appellant's brief considers the common-law rule and contends that its basis in the preservation
of domestic tranquility, the avoidance of collusion and fraud and the maintenance of parental discipline, etc., is
to ignore reality and present-day conditions and relations. In support of this, appellant quotes at length an
analysis and criticism of the common-law immunity rule by Professor William E. McCurdy, 43 Harvard Law
Review, 1059. A reading of Professor McCurdy's article, which purports to answer in detail the seven reasons
[which] have been advanced in support of the doctrine of parental immunity from suit of an unemancipated
minor child, only confirms the view that a public policy departing from the common-law rule must find its
expression in an act of the legislature.
next friend, against the minor's mother to recover for the wrongful death of the minor's father.
The Pennsylvania statute, while differing materially in many respects from the Nevada
statute, did, in the language of the court, provide for the recovery of compensation for loss
for which the common law furnished no redress. The statute provided further, * * * The
widow of any such deceased, or if there be no widow, the personal representatives, may
maintain an action for and recover damages for the death thus occasioned. * * * That the
persons entitled to recover damages for any injuries causing death shall be the husband,
widow, children or parents of the deceased, and no other relatives; and that such husband,
widow, children or parents of the deceased shall be entitled to recover, whether he, she or
they be citizens or residents of the Commonwealth of Pennsylvania, or citizens or residents of
any other state or place * * * and the sum recovered shall go to them in the proportion they
would take his or her personal estate in case of intestacy * * *. 12 P.S., sec. 1601, 1602. The
court held in rejecting the common-law immunity of a parent from a suit of a minor child:
The legislature made no exceptions * * *. The words of the conjectured exception are not
found in the statute, and as it is complete without them, we are not authorized to add them.
Peculiarly enough, of the seven justices comprising the Supreme Court of Pennsylvania,
not only did three of the justices dissent, upon the ground that the wrongful death statute did
not repeal the common-law immunity rule, but a fourth justice, while concurring in the result
(because he was of the opinion that it is not against public policy for a minor to sue his parent
where the suit is to vindicate property rights and not to recover damages for acts of violence
or negligence affecting the person), refused to subscribe to the view that the generality of the
provisions of the wrongful death statute permitted the suit of a minor child against its parent
in tort. Thus four members of the court definitely held that the Pennsylvania wrongful death
statute did not permit the action.
that the Pennsylvania wrongful death statute did not permit the action. The dissenting opinion
called attention to the fact that the Pennsylvania court had previously held that
notwithstanding these statutes, public policy forbids the pursuit of death actions against
certain classes of tort feasors, as in cases of public charities, schools, religious institutions and
municipal corporations carrying on a governmental function, so that it is not for all torts
resulting in death that actions can be maintained. Several cases are then cited. Appellant's
interpretation of our wrongful death statute would not only repeal the rule of immunity of
parents from tort actions of minor children but would likewise repeal the rule of immunity of
public charities, schools, religious institutions and municipal corporations carrying on a
governmental function. See Granite Oil Securities, Inc., v. Douglas County, 67 Nev. 388, 219
P.2d 191, 16 A.L.R.2d 1069, and cases therein cited.
It being conceded that none of the other cases cited by appellant are directly in point, we
do not find it necessary to discuss them. Appellant concedes the common-law immunity rule
and does not claim a repeal by implication. His position stands squarely upon the contention
that the generality of the statute is a direct repeal of the common-law rule, but we find no
language therein justifying this conclusion.
The judgment of the district court is affirmed with costs.
April 12, 1954. 269 P.2d 265.
Parent and Child.
Where action by unemancipated minor child against his mother for wrongful death
of his father was based primarily upon negligence, not malicious wrongdoing, action
would not lie, though complaint alleged willful misconduct on part of mother.
Rehearing denied.
Woodburn, Forman and Woodburn, and Gordon R. Thompson, of Reno, for Appellant.
Pike & McLaughlin, of Reno, and Donn B. Downen, Jr., of Los Angeles, for Respondent.
Per Curiam:
Upon petition for rehearing, appellant points out that in resting our decision upon the
common-law rule that an unemancipated minor child cannot sue his parent in tort for personal
injuries, we have disregarded a recognized exception to the rule.
That exception has to do with cases of intentional or willful acts on the part of the parent.
Appellant contends that since the complaint in this action alleges willful misconduct on
the part of respondent a genuine issue has been raised as to whether the exception applies;
and summary judgment was, therefore, improper.
The authorities cited by appellant to establish the exception to the general rule have to do
with cases where the misconduct was deliberate and malicious, in one instance a case where
one parent was shot and killed by the other. In our view such exception should not be held to
apply to facts such as are before us where the case is based, as appellant concedes, primarily
upon negligence and not malicious wrongdoing.
Rehearing denied.
____________
70 Nev. 298, 298 (1954) Peccole v. District Court
WILLIAM PECCOLE, Petitioner, v. The Honorable FRANK McNAMEE, Presiding Judge of
Department 1 of the Eighth Judicial District Court of the State of Nevada, in and for the
County of Clark, Respondent.
No. 3788
February 26, 1954. 267 P.2d 243.
Original petition for writ of prohibition.
City Commissioner brought prohibition proceeding against presiding judge of Department
1 of the Eighth Judicial District Court of the State of Nevada, in and for the County of Clark,
to prohibit trial of bribery prosecution. The Supreme Court, Badt, J., held that statute making
it a felony for a public officer to ask or receive a bribe applied to city commissioner, who
allegedly asked a reward for casting his official vote in favor of application for gaming
license.
Denied.
George E. Franklin, and Morse & Graves, all of Las Vegas, for Petitioner.
Roger D. Foley, District Attorney and George M. Dickerson, Deputy District Attorney,
both of Las Vegas, for Respondent.
1. Bribery.
Statute making it a felony for a public officer to ask or receive a bribe applied to city commissioner, who
allegedly asked a reward for casting his official vote in favor of application for gaming license.
N.C.L.1929, sec. 9996.
2. Bribery.
Statute providing that every public officer who shall ask or receive, directly or indirectly, any
compensation, gratuity, or reward, or promise thereof, for omitting or deferring performance of any official
duty, or for any official service, which has not been actually rendered, except in case of charges for
prospective costs or fees demandable in advance in a case allowed by law, was not applicable to city
commissioner who allegedly asked for a reward for voting in favor of application for gaming license.
N.C.L.1929, sec. 10015.
3. Bribery.
Statute making it a felony for a public officer to ask or receive a bribe was applicable to commissioner of
city, which was incorporated under special legislative act, notwithstanding that another statute, which is
applicable to officer or member of city council of city incorporated under general act, makes bribery only a
misdemeanor, since inconsistency between the statutes addresses itself not to court but to the legislature.
N.C.L.1929, secs. 1147, 9996.
4. Bribery.
Statute making it a felony for a public officer to ask or receive a bribe applied to city commissioner who
allegedly agreed to vote favorably on application for gaming license in return for a ten percent interest in
gaming establishment. N.C.L.1929, sec. 9996.
OPINION
The grand jury of Clark County charged the petitioner herein as follows:
That the said defendant on or about the 20th day of August, 1951, at and within the
County of Clark, State of Nevada, he being then and there an executive and/or administrative
public officer, namely, a duly elected, qualified and acting member of the Board of
Commissioners, the governing body of the City of Las Vegas, Clark County, Nevada, and he
then and there knowing that James Pappas and Ernie Amante had pending before said
governing body an application for a City gaming license for operation of a gaming
establishment, to-wit: the 49'er Club, located at 109 Fremont Street in the City of Las Vegas,
Clark County, Nevada, he the said William Peccole, did then and there wilfully, unlawfully,
and feloniously ask the said James Pappas and Ernie Amante for a reward, to-wit, a ten per
cent interest in the said gaming at said 49'er Club, upon an agreement and understanding that
his official vote and action on the said application for a gaming license then pending before
said governing body would be influenced thereby.
The charge was brought under sec. 9996, N.C.L.1929, reading as follows:
Every executive or administrative officer or person elected or appointed to an executive
or administrative office who shall ask or receive, directly or indirectly, any compensation,
gratuity or reward, or any promise thereof, upon an agreement or understanding that his vote,
opinion or action upon any matter then pending, or which may by law be brought before him
in his official capacity, shall be influenced thereby; and every member of either house of the
legislature of the state who shall ask or receive, directly or indirectly, any compensation,
gratuity or reward, or any promise thereof, upon an agreement or understanding that his
official vote, opinion, judgment or action shall be influenced thereby, or shall be given in any
particular manner, or upon any particular side of any question or matter upon which he may
be required to act in his official capacity; and every judicial officer, and every person who
executes any of the functions of a public office not hereinbefore specified, and every person
employed by or acting for the state or for any public officer in the business of the state, who
shall ask or receive, directly or indirectly, any compensation, gratuity or reward, or any
promise thereof, upon an agreement or understanding that his vote, opinion, judgment, action,
decision or other official proceedings shall be influenced thereby, or that he will do or omit
any act or proceeding or in any way neglect or violate any official duty, shall be punished by
imprisonment in the state penitentiary for not more than ten years, or by a fine of not more
than five thousand dollars, or by both.
The respondent district judge having denied petitioner's motion to dismiss the proceedings,
this writ was sought to prohibit the trial of said charge, upon the ground that said section does
not apply to a city commissioner and that the court was therefore without jurisdiction. The
learned district judge held that the crime charged was embraced within that part of the
section providing that "every person who executes any of the functions of a public office
not hereinbefore specified * * * who shall ask or receive, directly or indirectly, any
compensation, gratuity or reward, or any promise thereof, upon an agreement or
understanding that his vote, opinion, judgment, action, decision or other official
proceedings shall be influenced thereby, or that he will do or omit any act or proceeding
or in any way neglect or violate any official duty, shall be punished * * *" etc.1
section providing that every person who executes any of the functions of a public office not
hereinbefore specified * * * who shall ask or receive, directly or indirectly, any
compensation, gratuity or reward, or any promise thereof, upon an agreement or
understanding that his vote, opinion, judgment, action, decision or other official proceedings
shall be influenced thereby, or that he will do or omit any act or proceeding or in any way
neglect or violate any official duty, shall be punished * * * etc.
1

[Headnote 1]
Petitioner contends that the clause and every person who executes any of the functions of
a public office not hereinbefore specified in reality does not refer to officers at all, but to
persons' executing the functions of a public office [and] is included to cover de facto
officers, de jure officers who have not qualified, usurpers to office, or any person who for any
reason is executing the functions of public office, though actually not an officer, [that]
petitioner was not a person executing the functions of a public office; he was a duly elected,
qualified, functioning city commissioner. The contention is not logical. As petitioner did not
come within the classifications of officers first specified in the section, he was clearly
included in the general clause as a person executing the functions of a public office not
therein before specified. The same contention was made in People v. Jaehne, 103 N.Y. 182, 8
N.E. 374, 376; Jaehne v. People of State of New York, 12S U.S. 1S9, 9 S.Ct.
____________________

1
Counsel for respondent contend before this court that petitioner may also be charged as an executive or
administrative officer under this section, and under sections 1 and 16 of Chapter 2 of the charter of the City of
Las Vegas, Stats. 1911, 145, constituting the board of commissioners the governing board of the city, and having
supervision over all departments and constituting each commissioner an executive officer of his department. The
learned district judge, however, held that under the provisions of sec. 16 1/2, Stats. 1943, 219, and 1949, 229, all
executive and administrative duties were vested in a city manager and the commissioners were to all intents and
purposes stripped of all but legislative duties. In view of the conclusions reached herein, it becomes unnecessary
for us to enter into a discussion of this point.
v. People of State of New York, 128 U.S. 189, 9 S.Ct. 70, 32 L.Ed. 398, under a statute quite
similar to sec. 9996, N.C.L., and the court of appeals of that state held the precise words to be
of the most comprehensive meaning, intended, apparently, to include in this final provision
all public officers within the state, of whatever character or grade, not included within the
previous titles. The court said further: It is plain that a member of the common council, or
other municipal officer, is a person who executes the functions of a public office' and we
cannot doubt that municipal officers are within the purview of section 72 [Penal Law, sec.
372].
Petitioner contends that the legislative history of the New York section deprives the Jaehne
case of any force as precedent. On the contrary, we consider that the legislative history of our
sec. 9996 (which we do not find it necessary to trace) lends greater authority to the holding of
the New York court.
Petitioner also contends that the later New York case of People v. Salomon, 212 New
York 446, 106 N.E. 111, contains a contrary interpretation of the clause in question, but we
do not so read it. It leaves the Jaehne case as direct authority for the sufficiency of the charge
under sec. 9996 in the instant case.
[Headnote 2]
Petitioner contends that he should have been charged under sec. 10015, N.C.L.1929,
reading as follows:
10015. Misconduct of Public Officer. 66. Every public officer who shall
1. Ask or receive, directly or indirectly, any compensation, gratuity or reward, or promise
thereof, for omitting or deferring the performance of any official duty; or for any official
service which has not been actually rendered, except in case of charges for prospective costs
or fees demandable in advance in a case allowed by law; * * *.
Shall be guilty of a gross misdemeanor, * * *.
That section patently covers misconduct other than that with which petitioner is charged and
his contention is without merit.
with which petitioner is charged and his contention is without merit.
[Headnote 3]
Our attention is called by petitioner to sec. 1147, N.C.L.1929, which is sec. 46 of the
general act providing for the incorporation of cities, their government, etc. The section reads
as follows:
Any officer of the city or member of the city council who shall by himself or agent
become a party to or in any way interested in any contract work or letting, under the authority
of the city, or who shall, either directly or indirectly by himself or another, accept or receive
any valuable consideration or promise for his influence or vote, shall be fined in any sum not
exceeding one thousand dollars.
Petitioner concedes that the section is not applicable, as the city of Las Vegas was
incorporated not under such general act but under a special legislative act. He points out the
inconsistency of making bribery of a city councilman a misdemeanor in a city created under
the general act but a felony in a city created by special act. The inconsistency is a real one but
the contention addresses itself not to this court but to the legislature. Similar contentions were
made in People v. Jaehne, supra, in response to which the court said that the general act
provides a uniform punishment, but gives to the court a discretion in applying it, within the
limit prescribed, to meet the circumstances of the particular case.
The anomaly of the situation that would result if petitioner's contention were valid,
becomes apparent. We have already found that sec. 10015 is not applicable and it is conceded
that petitioner could not be charged under sec. 1147. If he may not be charged under sec.
9996, then he will entirely escape punishment for the acts charged by the grand jury if true.
[Headnote 4]
It is finally contended that the charge in the indictment that petitioner feloniously asked
for a reward, to-wit, a ten per cent interest in the said gaming at said 49'er Club" on
petitioner's agreement that his official vote on the application for the gaming license
would be influenced thereby, does not come within the application of the statute to such
persons "who shall ask or receive, directly or indirectly, any compensation, gratuity or
reward, or promise thereof," upon such agreement.
to-wit, a ten per cent interest in the said gaming at said 49'er Club on petitioner's agreement
that his official vote on the application for the gaming license would be influenced thereby,
does not come within the application of the statute to such persons who shall ask or receive,
directly or indirectly, any compensation, gratuity or reward, or promise thereof, upon such
agreement. The premise of such contention is that the promise of the 10 percent interest in
such gaming was not a thing of value, that it was illegal, against public policy, subject to
prosecution under the penal laws of the state, incapable of enforcement without the prior
consent of the Nevada Tax Commission, and utterly void. The cases cited by petitioner in
support of this contention are for the most part under statutes that require the bribe to be
property or a thing of value. In People v. Willis, 54 N.Y.S. 52, 53, 24 Misc. 549, 13
N.Y.Cr. 343, the charge was sustained against a similar contention under a statutory
application to an officer who asks, receives or agrees to receive a bribe, or any money,
property, or value of any kind, or any promise or agreement therefor * * *. The court said:
The statute in terms includes a promise to pay, and such promise, whether verbal or
written, is equally within the prohibition of the law. The fact that the notes were void because
of the corrupt agreement under which they were given cannot avail the defendant. Public
policy forbids the enforcement of a promise to pay a bribe, but no court has ever held that one
exacting such a promise is therefore relieved of the penal consequences.
See also Schutz v. State, 125 Wis. 452, 104 N.W. 90. The contention is without merit.
As we find no merit in petitioner's contentions, the writ of prohibition must be denied, the
alternative writ vacated and the proceedings dismissed. It is so ordered. Let remittitur issue
forthwith.
____________
70 Nev. 305, 305 (1954) Bramlette v. Titus
WALES G. BRAMLETTE and MAYBELLE BRAMLETTE, Appellants, v. HARVEY L.
TITUS and JENE TITUS, Respondents.
No. 3762
March 5, 1954. 267 P.2d 620.
Appeal from judgment of Fifth Judicial District Court, Nye County, William D. Hatton,
Judge, and from order denying new trial.
Action was brought to recover for loss of plaintiffs' cattle, which defendants had
contracted to graze and care for on their ranch for certain consideration. From a judgment
adverse to plaintiffs, plaintiffs appealed. The Supreme Court, Belford, District Judge, held
that where contract between plaintiffs and defendants for grazing of plaintiffs' cattle on
defendants' ranch provided that defendants would not be liable for any losses due to death,
straying, theft, and the like, and some of the cattle were lost through no fault of defendants,
defendants were not liable to plaintiffs for loss of cattle.
Affirmed.
Leslie B. Gray, of Reno, for Appellants.
E. P. Carville, of Reno, for Respondents.
Supreme Court on appeal will not disturb findings of lower court if they have substantial support in the
evidence.
2. Bailment.
In an ordinary bailment, bailee is not an insurer of the goods and is not liable to the bailor if the goods are
lost or destroyed without bailee's fault.
3. Animals.
The particular kind of bailment, under which a man, for consideration, takes in cattle to graze and pasture
on his land is an agistment.
4. Animals.
An agister is bound to take reasonable or ordinary care of animals committed to his charge, but, in
absence of a special contract, he is not an insurer of their safety, and, in event of loss, is liable only on
proof of negligence or want of ordinary care on his part.
5. Bailment.
Where a bailor proves delivery of property to bailee and bailee's failure to redeliver, burden of going
forward with evidence shifts to bailee.
6. Animals.
Where contract between plaintiffs and defendants for grazing of plaintiffs' cattle on defendants' ranch
provided that defendants would not be liable for any losses due to death, straying, theft, and the like, and
some of the cattle were lost through no fault of defendants, defendants were not liable to plaintiffs for loss
of cattle.
7. Animals.
In action to recover for loss of plaintiffs' cattle, which defendants had contracted to graze and care for on
their ranch for certain consideration, evidence sustained finding that loss of cattle was not due to any
negligence or carelessness of defendants in failing to care for the cattle properly.
8. Animals.
their ranch for certain consideration, evidence sustained trial court's finding that loss of cattle was caused
by their poor condition when delivered by plaintiffs to defendants, and by severe winter conditions.
9. Animals.
their ranch for certain consideration, evidence was insufficient to establish number of calves that were lost
because of alleged failure of defendants to care properly for the calves, or that defendants were negligent in
caring for the calves.
10. Animals.
their ranch for certain consideration, evidence sustained finding that plaintiffs were not entitled to recover
reasonable value of time and labor expended by them in rounding up their cattle at a time other than times
of regular roundups.
11. Animals.
their ranch for certain consideration, wherein defendants filed a counterclaim for cost of feeding cattle hay
and cottonseed cake, evidence sustained finding that such feeding of cattle was necessary and that
defendants were entitled to recover therefor.
12. New Trial.
A strong showing must be made to warrant granting of new trial on ground of newly discovered evidence.
13. New Trial.
Granting of new trial, on ground of newly discovered evidence, is a matter largely within discretion of
trial court.
14. New Trial.
On motion for new trial, on ground of newly discovered evidence, newly discovered evidence, which was
hearsay, was entitled to little, if any, weight.
15. New Trial.
A new trial, on ground of newly discovered evidence, is not warranted if movant might have introduced
other and similar evidence at the trial.
16. New Trial.
The granting of a new trial on ground of newly discovered evidence to impeach a witness, is not favored.
17. New Trial.
Discovery, after trial, of matter of public record is ordinarily not ground for new trial on ground of newly
discovered evidence, unless, on diligent search in proper office, such record was not discovered before
trial. N.C.L.1929, secs. 2140, 2141.
18. New Trial.
On motion for new trial, on ground of newly discovered evidence, granting or denying of application of
movants for leave to file additional affidavits is almost entirely within discretion of trial court.
19. New Trial.
Where some of the newly discovered evidence was hearsay, some of such evidence was largely
cumulative, some of the evidence might have been secured prior to trial, some of such evidence was for
purpose of impeachment of witness, and some of such evidence was a matter of public record, denial of
motion for new trial on ground of newly discovered evidence was entirely within discretion of trial court.
OPINION
By the Court, Belford, District Judge:
Appellants were engaged in the cattle business in California and respondents were engaged
in the same business in Nevada. In the fall of 1948 the parties entered into an oral agreement
under the terms of which appellants were to deliver certain of their cattle to respondents'
ranch where they would graze with respondents' cattle and be cared for by respondents. For
this privilege appellants were to pay to respondents one dollar per head per month except for
small calves.
[Headnote 1]
The evidence is in sharp conflict as to the other provisions of the contract but an
examination of the record discloses ample evidence to sustain the findings of the trial court as
to what those provisions were. It is not necessary to cite authority supporting the well
established rule that this court will not disturb the findings of the lower court where they find
substantial support in the evidence.
The court below found that the parties agreed that if it became necessary to feed
appellants' cattle respondents would be paid for such feed at the going price, they to use their
own judgment as to the necessity of such feeding, and that it was further agreed that
respondents would not be liable for any losses due to death, straying, theft and the like.
These findings are not only supported by the evidence but also by the logic of the situation.
No cattleman of any experience would undertake to assume the cost of unlimited
supplementary feeding or to insure the return of all the cattle
1
for the payment of one dollar
per head per month.
According to the agreement appellants delivered to respondents 258 cows, 92 calves and 7
bulls. Respondents grazed and fed said cattle from September of 1948 until June of 1950.
When the animals were returned to appellants at that time 96 head were missing. Appellants
brought their action for the value of these cattle, the value of calves allegedly produced by
their cattle but not delivered to them, damages for the failure to care properly for the calves
which were delivered to them, and for the reasonable cost of searching for their cattle.
____________________

1
At the oral argument a map was displayed and referred to by both counsel. This indicated the range in
question extending northeasterly and southwesterly for a distance of 30 or 40 miles or more, with a varying
width of 10 to 15 miles. Mr. Bramlette gathered some of his cattle as far as some 30 miles north of this extensive
range. It was all unfenced.
[Headnotes 2-4]
Appellants' first cause of action sounds in contract and is based upon the failure of
respondents to redeliver all the cattle delivered to them. Even in an ordinary bailment the
bailee is not an insurer of the goods and he is not liable to the bailor if they are lost or
destroyed without his fault. 8 C.J.S., Bailments, sec. 37, p. 308. An agister's liability is no
greater.
The particular kind of bailment under which a man, for a consideration, takes in cattle to
graze and pasture on his land is technically termed an agistment. An agister is bound to take
reasonable or ordinary care of the animals committed to his charge; but in the absence of a
special contract, he is not an insurer of their safety and, in the event of loss, is liable only on
proof of negligence or want of ordinary care on his part. 2 Am.Jur. 709. See also 3 C.J.S.,
Animals, sec. 13, p. 1100 and 1 Bacon Abr., 7th ed., 620.
[Headnotes 5, 6]
Appellants quite correctly urge that when a bailor proves delivery to the bailee and the
bailee's failure to redeliver, the burden of going forward with evidence shifts to the bailee. 8
C.J.S., Bailments, sec. 50, p. 341. However, the evidence shows that the cattle were lost
through no fault of respondents and therefore appellants cannot recover on the contract.
[Headnote 7]
Appellants' second cause of action is based upon the alleged negligence and carelessness
of respondents in failing to care for the cattle properly and the resulting loss by reason
thereof. The trial court found, and quite properly we think, that the loss of the cattle was not
occasioned by any negligence of respondents.
[Headnote 8]
The evidence establishes that the cattle were only in fair condition, at best, when they were
delivered to respondents and that the winter of 1948-1949 was particularly severe. The snow
conditions were so bad during that winter that the cattle loss was far higher than could
normally be expected. A. F.
could normally be expected. A. F. Bordoli, whose cattle ranch adjoined that of respondents'
and who used the winter range in common with them, testified that his loss during that winter
was 25 percent above normal with a total loss of about 33 percent. The trial court found that
the loss of appellants' cattle was caused by their condition when delivered to respondents and
the winter conditions described above. This finding is amply supported by the evidence.
[Headnote 9]
The third cause of action is based upon the failure of respondents to deliver the number of
calves that would normally have been produced by appellants' cattle and upon their
negligence in failing to care properly for the calves that were delivered. As pointed out in the
opinion of the lower court, the evidence is insufficient to establish an approximate number of
calves that were lost and equally insufficient to establish negligence upon the part of
respondents.
[Headnote 10]
The fourth cause of action is based upon the reasonable value of the time and labor
expended by appellants in rounding up their cattle in April, May and June, 1950. Appellants'
evidence on this point is to the effect that respondents agreed to gather appellants' cattle at
any time without charge; that upon being informed that appellants desired to ship their cattle
late in April, 1950, respondents stated that there were from 150 to 200 head at the ranch; that
Mr. Bramlette went to respondents' ranch in April but that the cattle had been moved 16 miles
on their way to summer range. Testimony on behalf of respondents was to the effect that
appellants were advised that the cattle were rounded up in June and October; that if
appellants' cattle were gathered at these times, no charge would be made but that gathering at
other times would have to be paid for. On this state of the record the trial court found in favor
of respondents as to this cause of action. Not only is there substantial evidence to support this
finding but the low monthly charge per animal compared to the cost of rounding up cattle
scattered on a very large range lends considerable weight to respondents' contentions.
monthly charge per animal compared to the cost of rounding up cattle scattered on a very
large range lends considerable weight to respondents' contentions.
[Headnote 11]
By counterclaim respondents asked for the cost of feeding appellants' cattle 120 tons of
hay at $35 per ton and 200 sacks of cottonseed cake at $5 per sack. The lower court, upon
ample evidence, found that the cattle were so fed, that such feeding was necessary and
entered judgment in favor of respondents for these amounts. We find no error in this holding.
The lower court denied appellants' motion for a new trial. One of the grounds upon which
this motion was based was newly discovered evidence. The motion was supported by the
affidavit of appellant Wales G. Bramlette. This recites that the evidence was not known to
him and could not have been discovered by reasonable diligence at or before the time of the
trial.
It then states that this evidence will establish the facts that very few cattle were lost in the
winter of 1948 and 1949 in the area of the Titus ranch and range; that many of my cattle were
seen on the Titus ranch and range in the spring and summer of 1949 and that they were in
good condition and that there was a good calf crop at the time. The affidavit continues:
Affiant further states that he received the information and new evidence from one Frank
K. Farnsworth on the 17th day of December, 1952; that now, the said Frank K. Farnsworth
refuses to sign an affidavit thereof but I verily believe he would appear in response to a
subpoena.
Affiant further states that the Tonopah Times-Bonanza, during the period in question
herein, contains articles supplied by the defendants which conclusively prove that there were
no heavy losses at the Locke ranch and range.
[Headnotes 12, 13]
In considering the propriety of the order of the trial court it must be borne in mind that a
strong showing must be made to warrant the granting of a new trial on this ground and
that the matter is largely within the discretion of the trial court.
must be made to warrant the granting of a new trial on this ground and that the matter is
largely within the discretion of the trial court.
On the other hand cases which require the granting of a new trial on the ground of newly
discovered evidence are unusual and exceptional. Applications for such relief are looked on
with distrust and disfavor, and must be granted with caution; and the newly discovered
evidence is regarded with suspicion. 66 C.J.S., New Trial, sec. 101, p. 291.
A motion for a new trial on the ground of newly discovered evidence is addressed to the
sound discretion of the trial court, and the granting or denying of a new trial applied for on
this ground is largely discretionary. 66 C.J.S., New Trial, sec. 201, p. 500.
[Headnote 14]
The affidavit, so far as it concerns the information given by Farnsworth to the affiant was
hearsay and therefore entitled to little, if any, weight. Such sworn statements are mere
hearsay and entitled to no consideration. Priest v. Cafferata, 57 Nev. 153, 60 P.2d 220, 221.
[Headnote 15]
This evidence, if received, would be largely cumulative since Mr. Bramlette testified that
his cattle were in good condition in the spring of 1949 and that Mr. Titus had told him that
only three of his cows had been lost. In addition, if but few cattle had been lost in the vicinity
of respondents' ranch and range, evidence of this fact could, in all probability, have been
secured prior to trial. A new trial is not warranted for newly discovered evidence where the
movant might have introduced other and similar evidence at the trial * * *. 66 C.J.S., New
Trial, sec. 102, p. 294.
[Headnote 16]
The averments in the affidavit as to the articles in the Tonopah Times-Bonanza are
conclusions only. The articles are not in the record and we have no means of knowing what
they contain.
knowing what they contain. Their chief purpose as evidence is the impeachment of Mrs. Titus
with reference to her testimony as to cattle losses, testimony that was corroborated by other
witnesses. The granting of a new trial under these circumstances is not favored.
By a strong line of authorities it has been held that, where newly discovered evidence
could serve only the purpose of impeachment, it will not constitute grounds that will warrant
the court in granting a new trial. Whise v. Whise, 36 Nev. 16, 131 P. 967, 969, 44 L.R.A.,
N.S., 689.
[Headnote 17]
In addition the articles were matters of public record. Secs. 2140 and 2141, N.C.L.1929.
The discovery after trial of * * * any other matter of public record ordinarily is not ground
for a new trial unless, on diligent search in the proper office, such record was not discovered
before the trial. 66 C.J.S., New Trial, sec. 107, p. 306.
[Headnotes 18, 19]
On the hearing of the motion appellants asked leave to file additional affidavits which was
refused. This matter was almost entirely within the discretion of the trial court. 66 C.J.S.,
New Trial, sec. 176, p. 429.
As we find no error in the record, the judgment and order appealed from are affirmed with
costs to respondents.
Merrill J., being disqualified, the Governor designated Honorable John S. Belford, judge
of the Second Judicial District, to sit in his place.
____________
70 Nev. 314, 314 (1954) Dolge v. Masek
IRMA D. DOLGE, Appellant, v. JERRY E. MASEK, EVELYN YOUNGMAN and
ROBERT H. YOUNGMAN, Her Husband, Respondents.
No. 3760
March 24, 1954. 268 P.2d 919.
Department No. 2.
Suit for specific performance of an alleged oral agreement for settlement of will dispute.
The Eighth Judicial District Court, Clark County, A. S. Henderson, Judge, Department No. 2,
rendered decree of specific performance, and defendant appealed. The Supreme Court,
Merrill, J., held that where provisions and expressions contained in proposed agreement for
settlement of will dispute indicated an intent that assent was to be manifested by execution of
a writing, and proposed agreement contained a provision whereby certain parties released
rights in realty, which release could be accomplished only by execution of written instrument,
the oral proceedings did not culminate in an enforceable oral agreement.
Reversed.
Morse and Graves, of Las Vegas, for Appellant.
Hawkins and Cannon, of Las Vegas, for Respondent.
1. Contracts.
If a written draft of an agreement is viewed by the parties merely as a convenient memorial or record of
their previous contract, its absence does not affect the binding force of the contract, but if it is viewed as
the consummation of the negotiations, there is no contract unless the written draft is finally signed.
2. Contracts.
In determining whether oral proceedings of parties culminated in final agreement or whether assent was
withheld until such time as agreement might be reduced to writing and signed, circumstances which may be
considered include whether the contract is of that class which are usually written, whether it is of such
nature as to need a formal writing for its full expression, whether it has few or many details, whether
amount involved is large or small, whether it is a common or unusual contract, and
whether negotiations themselves indicate that a written draft is contemplated as
final conclusion of negotiations.
70 Nev. 314, 315 (1954) Dolge v. Masek
whether amount involved is large or small, whether it is a common or unusual contract, and whether
negotiations themselves indicate that a written draft is contemplated as final conclusion of negotiations.
3. Compromise and Settlement.
Where provisions and expressions contained in proposed agreement for settlement of will dispute
indicated an intent that assent was to be manifested by execution of the writing, and proposed agreement
contained a provision whereby certain parties released certain rights in realty, which release could be
accomplished only by execution of written instrument, the oral proceedings did not culminate in an
enforceable oral agreement. N.C.L.1929, sec. 1527.
4. Specific Performance.
Where will contestants dismissed the contest allegedly in reliance upon an oral agreement for settlement
of will dispute, but at time of dismissal the agreement had been repudiated by the proponent, as the
contestants well knew, the dismissal, under such circumstances, was wholly voluntary, and was made not in
reliance upon, but despite the actions of proponent, and hence was not such a change of position and partial
performance in reliance upon the alleged oral agreement as would authorize specific enforcement of such
oral agreement.
OPINION
By the Court Merrill, J.:
This is a suit for specific performance of an oral agreement. The question involved upon
this appeal is whether the oral proceedings of the parties actually culminated in a final
agreement or whether assent was withheld until such time as the agreement might be reduced
to writing and signed. The trial court found that an enforceable oral agreement had been
reached and rendered a decree of specific performance of the terms thereof against the
defendant below, who has taken this appeal.
In January, 1949, Jerry G. Masek died, leaving surviving him his widow, Irma Masek
(now Irma Masek Dolge), the appellant herein and two children: Evelyn Youngman and Jerry
E. Masek, respondents herein. Decedent had left as last will and testament an instrument
purporting to be a holograph. Appellant offered the will for probate and was met by a
contest filed by respondents who claimed undue influence on the part of appellant and
that the instrument in truth was not a holograph and did not possess the formal requisites
of a will.
70 Nev. 314, 316 (1954) Dolge v. Masek
the will for probate and was met by a contest filed by respondents who claimed undue
influence on the part of appellant and that the instrument in truth was not a holograph and did
not possess the formal requisites of a will.
Thereupon negotiations commenced for settlement of the dispute. These negotiations
disclosed that the major questions involved were as to the extent of the estate which the
widow might claim to pass under the terms of the will. Respondents had been interested with
decedent in certain businesses. Decedent's interests in these, they claimed, passed direct to
them pursuant to partnership agreement.
In the course of their negotiations the parties in November, 1949, conferred in the office of
respondents' attorney who then prepared in writing a form of settlement agreement. This was
submitted to appellant early in 1950 and, after consideration, was rejected by her as
unsatisfactory. A further conference was held and a second draft of agreement was prepared
by appellant's attorney. This draft, after consideration, was also rejected by appellant. On June
13, 1950, a third conference was held in an attempt to eliminate the remaining areas of
difference. All parties were present together with their attorneys. The second draft was used
as a basis for discussion. Each paragraph was read. Changes to be made were noted in the
margin. When the entire draft had thus been covered, each party was interrogated by
respondents' attorney and each expressed approval of the terms of the settlement. Respondent
Masek pressed the point further. He testified that he stated, If the agreement wasn't agreeable
let's don't go to the trouble and expense of drawing up another agreement if we are not in
accord. Let's settle it while we are here together. He testified that appellant answered, Son, I
am satisfied.
It was understood that the settlement was to be reduced to writing by appellant's attorney.
This was done.
70 Nev. 314, 317 (1954) Dolge v. Masek
done. The result was an 18-page document of considerable complexity providing in detail for
a division of the estate of decedent in lieu of the division provided by will, and, as expressed
by recital, resolving five other disputes between the parties in addition to the issues joined in
the aforesaid will contest. The document was submitted to respondents and in due course
was signed by them. It was never signed by appellant. She does not dispute the fact that the
writing reflects the understanding of the parties as reached at their June 13, 1950, conference.
Her refusal to sign was for the reason that upon further consideration she had concluded that
the settlement was not fair. She wanted more. She communicated her views in this respect to
respondents in October, 1950. They flatly rejected her proposition and subsequently
commenced this action.
Following the conference of June 13, 1950, and before signing the written document based
thereon, was appellant free to change her mind? She testified that in her view the agreement
was a tentative one. The attorney who represented her during the negotiations testified, It
was my understanding that the agreement would not become effective until signed by all
parties and approved by their attorneys.
Appellant refers us to the following language of this court in Morrill v. Tehama
Consolidated Mill & Mining Co., 10 Nev. 125, 133: It is true the parties verbally agreed to
the terms of the contract as stated in the complaint, but it was to be reduced to writing and
signed by both parties. * * * It is essential to the existence of every contract, that there should
be a reciprocal assent to a definite proposition, and when the parties to a proposed contract
have themselves fixed the manner in which their assent is to be manifested, an assent thereto,
in any other or different mode, will not be presumed.
Respondents refer us to the following language of this court in Micheletti v. Fugitt, 61
Nev. 478, 489, 134 P.2d 99, 104, "Where a complete contract was made orally, the fact
that it was expected that a written contract would afterwards be signed, embodying the
terms of the oral contract, does not prevent the oral contract from taking effect."
70 Nev. 314, 318 (1954) Dolge v. Masek
99, 104, Where a complete contract was made orally, the fact that it was expected that a
written contract would afterwards be signed, embodying the terms of the oral contract, does
not prevent the oral contract from taking effect. See also: annotations 122 A.L.R. 1217, 165
A.L.R. 756.
The significance of this language in the light of the earlier expression in the Morrill case
would appear to be that the mere expectation that a written document is to be prepared and
executed embodying an oral agreement does not in and of itself necessarily signify that the
parties have fixed such execution as the manner in which their assent is to be manifested or
that until such execution is had the oral contract shall be without binding force. In Micheletti
v. Fugitt we find assent to the oral contract and intent to be bound thereby evidenced by the
fact that the assenting party had operated under the agreement for some time before finally
repudiating it.
[Headnotes 1, 2]
The problem has been well and simply expressed in Mississippi and Dominion Steamship
Company v. Swift, 86 Me. 248, 258, 29 A. 1063, 1067, and helpful suggestions are there
made as to its solution. It is stated, If the written draft is viewed by the parties merely as a
convenient memorial, or record of their previous contract, its absence does not affect the
binding force of the contract; if, however, it is viewed as the consummation of the
negotiation, there is no contract until the written draft is finally signed. In determining which
view is entertained in any particular case, several circumstances may be helpful, as: whether
the contract is of that class which are usually found to be in writing; whether it is of such
nature as to need a formal writing for its full expression; whether it has few or many details;
whether the amount involved is large or small; whether it is a common or unusual contract;
whether the negotiations themselves indicate that a written draft is contemplated as the final
conclusion of the negotiations.
70 Nev. 314, 319 (1954) Dolge v. Masek
[Headnote 3]
It should be borne in mind that some measure of agreement is usually manifested as a basis
for preparation of a written draft of agreement. If upon rejection of such draft, such
manifestation of agreement is to be held to constitute binding contractual assent, the evidence
that the parties had intended presently to be bound should, in our view, be convincing and
subject to no other reasonable interpretation. Such is not the case before us. The language and
provisions of the contract itself preclude such an interpretation.
Among the recitals of the final writing is the following: Whereas the parties hereto desire,
by the making, execution and delivery of this Agreement * * * to accomplish the following
(setting forth the purposes of the settlement) * * *. The document further provides that such
recitals shall be deemed to bind the parties hereto with contractual force and effect.
Paragraph 16 of the final writing provides: Each of the parties to this agreement hereby
declares, acknowledges and agrees that he, she, or they, have carefully read and considered
this agreement and fully understand the same, and that this agreement has been read,
explained, and interpreted to each of them by their respective attorneys, and that each of them
has made and entered into this agreement freely and voluntarily and upon a full understanding
of the same. This paragraph and the quoted recitals had been included in the second draft
which had been so carefully considered by the parties at their June 13, 1950, conference and,
with their approval, were incorporated without change in the final writing. Both the second
draft and the final writing contained signature lines for the attorneys of the parties under the
words, Approved as to legal effect.
In our view these provisions and expressions indicate an intent that assent was to be
withheld until the agreement had been reduced to final written form and had, in such form,
been considered, explained and approved by the attorneys for the parties and that assent was
then to be manifested by execution of the writing.
70 Nev. 314, 320 (1954) Dolge v. Masek
then to be manifested by execution of the writing. Each consideration suggested in
Mississippi and Dominion Steamship Company v. Swift, supra, lends support to such
conclusion.
The language of the proposed agreement provides more than a mere indication of such
intent, however. Intent is conclusively established by further provisions. Paragraph Eight of
both the final writing and the second draft, provides that respondents each for themselves,
their heirs, executors, administrators and assigns, do hereby forever waive, release, remise
and relinquish to First Party, [appellant,] her heirs, executors, administrators and assigns, any
right, title and interest, if any, which either * * * have ever had or have ever claimed to have
in and to any of the following described property, * * *. Among the ten items of property
then specified are a dwelling house in the city of Las Vegas, a cabin site at Charleston Park,
Clark County, a promissory note secured by trust deed upon realty located in Las Vegas.
Section 1527, N.C.L.1929, provides: No estate, or interest in lands, other than for leases for
a term not exceeding one year, nor any trust or power over or concerning lands, or in any
manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or
declared, unless by act or operation of law, or by deed or conveyance, in writing, subscribed
by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful
agent thereunto authorized in writing. It is clear that the release which the parties
contemplated the agreement would accomplish could not have been accomplished save by
execution of the written instrument. To hold that appellant immediately became bound by the
oral agreement under the circumstances would be to deprive the agreement of mutuality for
the reason that the oral proceedings in which the parties had participated could not have
bound respondents to their release under the statute of frauds.
70 Nev. 314, 321 (1954) Dolge v. Masek
[Headnote 4]
Respondents assert a change of position and partial performance in reliance upon the oral
contract. The only change of position from which detriment may be found was respondents'
action in dismissing the will contest in July, 1951. The dismissal, made in open court at the
time set for the hearing of the contest, was expressly based upon what respondents there
characterized as their obligations under the oral contract. By that time, however, the
settlement had been repudiated by appellant as respondents well knew. She had made her
further demands upon respondents which they had rejected. She had commenced an action for
accounting against them wholly inconsistent with the terms of settlement. She had taken the
deposition of respondent Masek as an adverse witness for use upon the will contest. The
dismissal of the contest by respondents under the circumstances must be regarded as wholly
voluntary. It was made not in reliance upon, but despite the actions of appellant.
Judgment reversed with costs and case remanded with instructions that judgment be
entered for the defendant.
May 5, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 322, 322 (1954) State Ex Rel. Watson v. Merialdo
STATE OF NEVADA, on Relation of HARRY M. WATSON, Petitioner, v. PETER
MERIALDO, State Controller of the State of Nevada, Respondent.
No. 3786
March 29, 1954. 268 P.2d 922.
Original mandamus proceedings by district court judge to compel State Controller to
deliver to him warrants for payment of his salary notwithstanding petitioner's failure to file an
affidavit that no case, which had been submitted for more than ninety days remained
undecided. The Supreme Court, Badt, J., held that the statute, requiring each district judge,
before receiving any monthly salary, to file an affidavit setting forth, inter alia, that no case
which had been submitted to him as district judge for a period of more than ninety days
remained undecided, was unconstitutional.
Writ issued.
George E. Marshall, of Las Vegas, for Petitioner.
W. T. Mathews, Attorney General, George P. Annand, William N. Dunseath and John W.
Barrett, Deputy Attorneys General, all of Carson City, for Respondent.
The courts possess the entire body of intrinsic judicial power of the state. Const., art. 3, sec. 1.
Neither legislative nor executive branch of the government may assume to exercise any part of intrinsic
judicial power of the state, and district court cannot be directed, controlled or impeded in its functions by
either of those branches. Const., art. 3, sec. 1.
3. Constitutional Law; Judges.
Statute imposing no forfeiture but requiring each district court judge, before receiving any monthly
salary, to file an affidavit setting forth that no case which has been submitted to him as district judge for a
period of more than ninety days, remains undecided, has effect of coercing filing of decisions within ninety
days, and therefore exceeds constitutional power of legislature to fix compensation of judges and violates
separation of powers provision of constitution. N.C.L.1929, sec.
sec. 8433, as amended, Laws 1953, c. 54; Const., art. 3, sec. 1; art. 6, sec. 15.
OPINION
This petition presents for determination the question of the constitutionality of sec. 8433,
N.C.L.1929, as amended, requiring a district judge, before he may receive his monthly salary,
to file an affidavit with the controller showing that no cases remain undecided which have
been submitted to him for more than ninety days. We hold that the statute in question violates
constitutional limitations.
Petitioner is the duly elected, qualified and acting judge of the Seventh judicial district
court of the State of Nevada, in and for the counties of White Pine and Lincoln and the
legislature heretofore fixed his salary at $7,200 per year, payable in monthly installments. He
alleges that respondent state controller refuses to deliver his warrants for his salary for the
past seven months, which refusal is based upon the petitioner's failure to execute the affidavit
required by the statute, but that such statute is in violation of the constitution, is void and of
no effect and is no justification for the controller's refusal to deliver the warrants.
1

The act in question is sec. 8433, N.C.L.1929, as amended by Stats.
____________________

1
When this matter became at issue before us upon the complete filing of the briefs, counsel for both parties
tendered an oral stipulation for the submission thereof on the briefs and without oral argument. We entered an
order refusing to honor this stipulation, for the reason that many matters in connection with petitioner's refusal to
sign the affidavit had come to the attention of the court and caused the court great concern and that the court
desired to make certain inquiries of counsel. Upon the conclusion of the oral argument we ordered that there be
furnished to the court certificates from each county clerk in the state indicating what if any cases argued and
submitted to petitioner remained undecided after being submitted for a period over ninety days. The attorney
general thereafter filed certificates from each county clerk, from which it appeared that no cases remained thus
undecided. We thereupon ordered this matter submitted.
amended by Stats. 1953, ch. 54, p. 49, reading as follows:
Section 1. Section 5 of the above-entitled act, being section 8433, N.C.L.1929, is hereby
amended to read as follows:
Section 5. Each district judge shall, before receiving any monthly salary, file with the
clerk of each county within his district and with the state controller, an affidavit in which
shall be set forth the number of cases, motions or other matters submitted to him as such
district judge, regardless of the district in which he was sitting at the time of the submission
of said cases, motions or other matters which remain undecided, and that no such case,
motion or matter remains undecided which has been submitted for a period of more than
ninety days.
Sec. 2. This act shall be effective upon passage and approval.
The section before the 1953 amendment, enacted in 1913, was restricted to cases
submitted to the judge when sitting in his own district. The original act, Stats. 1891, ch. 25, p.
28, was entitled An Act to prevent unnecessary delay in rendering judicial decisions by the
Courts of this State. It contained but two sections and required among other things that No
* * * Judge of the District Court * * * be allowed to draw or receive any monthly salary
unless he shall take and subscribe an affidavit * * * that no cause in his court remains
undecided that has been submitted for the period of ninety days. Section 2 required the filing
of the affidavit with the state controller. The 1913 act, amended in 1953, is entitled, in part,
to prevent unnecessary delay in rendering judicial decisions. The constitutional provisions
involved are section 15 of Article VI of the constitution, concerning the compensation of
judicial officers and section 1 of Article III concerning the division of the powers of the
government. The first of these reads, in part, as follows:
Compensation of Judicial Officers. 15. The justices of the supreme court and district
judges shall each receive quarterly for their services a compensation to be fixed by law,
and which shall not be increased or diminished during the term for which they shall have
been elected, * * *."
receive quarterly for their services a compensation to be fixed by law, and which shall not be
increased or diminished during the term for which they shall have been elected, * * *.
The second reads as follows:
The powers of the government of the State of Nevada shall be divided into three separate
departmentsthe legislative, the executive, and the judicial; and no person charged with the
exercise of powers properly belonging to one of these departments shall exercise any
functions appertaining to either of the others, except in the cases herein expressly directed or
permitted.
In Ratliff v. Sadlier, 53 Nev. 292, 299 P. 674, 675, a judgment was attacked as being
coram non judice and void because in violation of sec. 5227, Revised Laws of 1912, reading
in part: Upon a trial of a question of fact by the court its decision must be given * * * within
thirty days after the cause is submitted for decision. This court held the statute to be
directory merely.
In the recent case of Waite v. Burgess, 69 Nev. 230, 245 P.2d 994, 996, a motion was
made to dismiss the appeal by reason of the statute providing that unless sureties on an appeal
bond, after exception to their sufficiency, justify before the judge within five days, on notice,
the appeal shall be regarded as if no such undertaking had been given. The filing of the
undertaking being a jurisdictional requirement, such failure would then have invalidated the
attempted appeal. The appellant had appeared with his sureties, within time, for such
justification but the matter was set down by the judge for a later date beyond the five-day
period. This court held that the statute should be construed as demanding diligence on the
part of the litigants rather than as an oppression upon the judge's duties of deliberation and of
orderly administration of justice * * * [and] should be regarded as directory only, when
relating to judicial functions. Of special importance to the present case is this language used
by the court: "It is recognized that legislation undertaking to require judicial action within
fixed periods of time is an unconstitutional legislative interference with judicial functions.
It is recognized that legislation undertaking to require judicial action within fixed periods
of time is an unconstitutional legislative interference with judicial functions. State v. Johnson,
224 Ind. 540, 69 N. E. 2d 592, 168 A.L.R. 1118; Atchison, Topeka & Santa Fe Ry. Co. v.
Long, 122 Okla. 86, 251 P. 486; Schario v. State, 105 Ohio St. 535, 138 N. E. 63, 64. In
Schario v. State, supra, it was stated: Whether or not justice is administered without denial
or delay is a matter for which the judges are answerable to the people, and not to the General
Assembly of Ohio. Manifestly, when a case can be heard and determined by a court must
necessarily depend very largely upon the court docket, the quantity of business submitted to
the court, the nature, the importance, and the difficulties attending the just and legal solution
of matters involved'.
[Headnotes 1, 2]
The Indiana, Oklahoma and Ohio cases cited in Waite v. Burgess, supra, all hold firmly,
under constitutional provisions similar to our own, that the legislative branch of the
government may not constitutionally limit the judicial branch in respect to the time within
which it shall determine cases within its jurisdiction. They held, under similar but not
precisely the same conditions, that old and well-established principles were involvedthe
separation and independence of the three branches of government. Nothing can be clearer
than that, under our constitutional provision, our courts possess the entire body of the
intrinsic judicial power of the state. [224 Ind. 540, 69 N.E.2d 594.] This being so, neither the
legislative nor the executive branches of the government may assume to exercise any part of
that judicial power, and the district court cannot be directed or controlled or impeded in its
functions by either of those branches. State ex rel. Kitzmeyer v. Davis, 26 Nev. 373, 68 P.
689. See also Ex Parte Tully, 4 Ark. 220, 38 Am.Dec. 33.
Respondent seeks to distinguish the cases above referred to by pointing to language in
those decisions indicating that the action taken in striking down the several legislative
acts involved was because such acts sought to deprive the court of a constitutionally
vested jurisdiction to hear and determine certain cases.
referred to by pointing to language in those decisions indicating that the action taken in
striking down the several legislative acts involved was because such acts sought to deprive
the court of a constitutionally vested jurisdiction to hear and determine certain cases. We
think the cases go much further. They emphasize the wisdom of constitutional provisions
guarding the independence of the judiciary and protecting it against all unwarrantable
interference concerning the payment of salaries. They deplore any attempt that might bend
the judiciary into mere instruments of the will of the legislature or might drive or degrade
judges from the bench by depriving them of parts of their compensation. Even in California,
where provisions similar to our statute are written into the state constitution, it was said in
Wyatt v. Arnot, 7 Cal.App. 221, 94 P. 86, 89: We think it is clear that the matter of the time
when a judge may decide a case submitted to him for decision is as much a matter of judicial
discretion and judgment as the matter of how he may decide it.
[Headnote 3]
Respondent contends that sec. 8433, N.C.L.1929, as amended, Stats. 1953, 49, imposes no
forfeiture for failure of a judge to decide a case within ninety days after submission, deducts
nothing from his salary and subjects him only to a delay until such time as he may bring
himself within the statute. We do not find this convincing. The withholding of a judge's salary
for weeks or months might indeed be just as embarrassing and detrimental as an actual
forfeiture of a part of such salary. Records submitted on appeal to this court sometimes
contain thousands of pages of testimony and exhibits. A jury case recently tried in one of our
district courts occupied some fifty court days. Consideration of a motion for new trial in that
case might have required a study of that entire record and a decision could not conceivably
have been expected within ninety days of the submission of the motion. Respondent suggests
that in cases of that kind counsel are ordinarily agreeable to stipulating for a
resubmission.
cases of that kind counsel are ordinarily agreeable to stipulating for a resubmission. This does
not remove the onus of the statute. Counsel may refuse to stipulate, and an order of
resubmission may not be made, under section six of the act, without written stipulation.
Respondent refers us to several California cases but, as we have noted, the California
provision appears in its constitution. Respondent concedes that if the statute commanded the
judge to render his decision within ninety days, such situation would come within the
condemnatory language found in the cases cited. The coercive means employed by the statute
approach so closely to the actual command, however, that we do not consider the distinction
important.
Respondent relies on State v. Atherton, 19 Nev. 332, 10 P. 901, upholding the provisions
of section 6 of the Act of March 4, 1885, Stats. 1885, 60, General Stats. 1885, sec. 2490,
providing for payment of salaries monthly to the district judges out of the special fund created
by the quarterly payments into said fund by the treasurers of the respective counties of the
sums fixed by the redistricting act. This court there contented itself with the simple statement
that there was no constitutional objection to such method of payment, and that the provision
for payment in monthly installments did not violate the provisions of section 15 of Article VI
of the constitution. We do not find in the Atherton case any support for the present act.
We conclude that under the act in question the limitations placed by the legislature upon
the right of a district judge to be paid his compensation exceeded the grant of power provided
in section 15 of Article VI, and that the coercion placed upon district judges to cause them to
file their decisions within ninety days was likewise a violation of the provisions of section 1
of Article III of the state constitution. Such being the case and the state controller having
advanced no other reason for his refusal to deliver the warrants in question, the writ of
mandate must issue as prayed for.
his refusal to deliver the warrants in question, the writ of mandate must issue as prayed for. It
is so ordered.
April 12, 1954. 268 P.2d 922, 926.
1. Constitutional Law: Judges.
Statute requiring each supreme court justice, before receiving any monthly salary, to
file affidavit setting forth that no case has been assigned to him for preparation of
opinion for more than ninety days, has effect of coercing filing of decisions within
ninety days, and therefore exceeds constitutional power of legislature to fix
compensation of judges and violates separation of powers provision of constitution.
N.C.L.1929, sec. 8433, as amended, Laws 1953, c. 54; Const., art. 3, sec. 1; art. 6, sec.
15.
Rehearing denied.
George E. Marshall, of Las Vegas, for Petitioner.
W. T. Mathews, Attorney General, George P. Annand, William N. Dunseath and John W.
Barrett, all of Carson City, Deputy Attorneys General, for Respondent.
Per Curiam:
[Headnote 1]
Respondent, conceding that the original petition attacked only sec. 8433, N.C.L.1929, as
amended, being sec. 5 of An Act in relation to courts of record, to prevent unnecessary delay
in rendering judicial decisions, etc., now asserts that our order granting the precise relief
prayed for, leaves in doubt the validity of the remaining seven sections of the entire act. He
calls our attention to the fact that sec. 2 of the act, being sec. 8430, N.C.L.1929, requires,
among other things, that each of the supreme court justices, before receiving any monthly
salary, shall file in his office an affidavit reciting that no case has been assigned to him for
preparation of opinion for more than ninety days, etc.; that we have not struck down said
sec.
that no case has been assigned to him for preparation of opinion for more than ninety days,
etc.; that we have not struck down said sec. 2 and that the respondent state controller needs
the aid of this court as a guide to his official duties under sec. 2 and other sections of the act.
We think it clear from our opinion that sec. 2 of the act, being sec. 8430, N.C.L.1929, is
subject to the same infirmities as sec. 5 (sec. 8433, N.C.L.1929) and we so hold. No official
duties of the state controller are affected by any of the remaining six sections, and further
consideration of such sections would be unwarranted in this proceeding.
Rehearing denied.
____________
In the Matter of the Estate of JACOB KATLEMAN, Also Known as JAKE KATLEMAN,
Deceased; LIBERTY KATLEMAN, one of the Heirs of the Estate, and JENNIFER LYNN
KATLEMAN, Minor Heir of the Above-Entitled Estate, By and Through WILLIAM G.
RUYMANN, Her Attorney Appointed by the Above-Entitled Court, Appellants, v. BELDON
R. KATLEMAN, Purported Purchaser of Personal Property, and FIRST NATIONAL BANK
OF NEVADA, Coadministrator, Respondents.
Nos. 3731 and 3732
April 15, 1954. 269 P.2d 257.
Proceedings on opposition to confirmation of sale of personalty of a decedent's estate. The
Eighth Judicial District Court, Clark County, A. S. Henderson, Judge, entered order of
confirmation and denied motion to vacate and set aside order, and a motion for new trial, and
the opponents appealed. The Supreme Court, Eather, C. J., held that a petition for order of
sale was not prerequisite to validity of the sale, even though coadministrator was absent from
state at time of filing of notice of intention to sell, since same issue was involved in hearing
on application to confirm the sale, and not until confirmation did the title become vested
in the purchaser.
involved in hearing on application to confirm the sale, and not until confirmation did the title
become vested in the purchaser.
See also 70 Nev. 184, 264 P.2d 843.
Affirmed.
Taylor & Gubler, of Las Vegas, for Appellant, Liberty Katleman.
William G. Ruymann, of Las Vegas, for the Appellant, Jennifer Lynn Katleman.
A. W. Ham & A. W. Ham, Jr., of Las Vegas; Woodburn, Forman & Woodburn, of Reno;
and Leo K. Gold, of Beverly Hills, California, Attorneys for Respondent, Beldon R.
Katleman.
Jones, Wiener & Jones, of Las Vegas, and Abe Richman, Esq., of Los Angeles, California,
Attorneys for the Respondent, First National Bank of Nevada.
In view of fact that a sale of personalty made by estate to purchaser at time for which sale has been
noticed does not result in passage of title, but title becomes vested in purchaser only when sale is confirmed
by court, a petition for order of sale of personal property is not a prerequisite to sale, and confirmation of
sale, in absence of such a petition, is not on that basis invalid. N.C.L.1931-1941 Supp., secs. 9882.139,
9882.140, 9882.143, 9882.153, 9882.154.
Under statute providing that, when there are two executors or administrators, the acts of one alone shall
be valid if the other is absent from the state, or for any causes laboring under any legal disability, a bank, as
a coadministrator, had authority, during absence of its coadministrator from state, to file notice of intention
to sell personal property of estate at public sale, and to sell the property, if deemed necessary in their
opinion, and it was not necessary that it first procure an order of sale by filing petition against absent
coadministrator. N.C.L.1931-1941 Supp., sec. 9882.44.
The primary issue on a hearing to confirm sale of personalty of a decedent's estate, and on a petition to
compel the sale of personalty, is in each instance what is for the best interests of the estate, and
thus absence of a petition to compel sale of personalty does not deprive one who has
had a hearing on confirmation of the sale of any of her rights with respect to a
hearing. N.C.L.1931-1941 Supp., sec.
interests of the estate, and thus absence of a petition to compel sale of personalty does not deprive one who
has had a hearing on confirmation of the sale of any of her rights with respect to a hearing.
N.C.L.1931-1941 Supp., sec. 9882.44.
In proceedings on objections to confirmation of sale of personalty of a decedent's estate, consisting of
stock and a note, wherein it appeared that the stock was in a corporation which merely leased hotel
premises on which there was a gambling establishment, record established that court exercised its sound
discretion and committed no error in confirming the sale.
Where letters of administration were issued to named bank, designated city, a notice of intention to sell
personal property and a petition for confirmation of sale were not defective because signed by the named
bank, designated city branch, since the branch was not a different person from the corporation named
administrator, and fact that the corporation carried out its functions by one agent or another was
immaterial.
Notice of intention to sell personal property of a decedent's estate was not defective because affidavit of
posting did not describe the places where the posting took place as public places, when the notice was
posted according to law in county courthouse, city hall and police station, and in addition was published in
a newspaper in the county for the requisite time, since either the posting or publication would have been
sufficient. N.C.L.1931-1941 Supp., sec. 9882.153.
The county courthouse, city hall and police station are all public places for the purpose of posting
notices of intention to sell personalty of a decedent's estate. N.C.L.1931-1941 Supp., sec. 9882.153.
A finding of trial court, on disputed evidence, that sale of personalty of a decedent's estate was a public
one, was conclusive on reviewing court.
9. Auctions and Auctioneers.
A public sale is one where the public is invited to participate and is given full opportunity to bid on a
competitive basis for the property placed on sale, which is sold to the highest bidder.
Under statute relating to sales of property of estate of decedent when necessary for payment of debts,
legacies, family allowances or expenses, questions before trial court, on hearing of order for confirmation,
are whether sale was necessary and whether it was for benefit, advantage and best interest
of estate and those interested therein, and trial court is entitled to exercise its best
discretion under the facts in determining the question. N.C.L.1931-1941 Supp., sec.
and whether it was for benefit, advantage and best interest of estate and those interested therein, and trial
court is entitled to exercise its best discretion under the facts in determining the question. N.C.L.1931-1941
Supp., sec. 9882.139.
In proceedings on opposition to confirmation of sale of personalty, consisting of stock and a note, of a
decedent's estate, evidence as to necessity for the sale, and adequacy of the purchase price, disclosed no
abuse of discretion in the confirming of the sale. N.C.L.1931-1941 Supp., sec. 9882.139.
OPINION
This is an appeal by Liberty Katleman, one of the heirs of the decedent, and by Jennifer
Lynn Katleman, a minor heir, by and through William G. Ruymann, her attorney appointed
by the court, from an order confirming sale of personal property made and entered July 22,
1952; from an amended order confirming sale of personal property made and entered
September 10, 1952, and from the order of the court made and entered October 23, 1952,
denying appellants' motion to vacate and set aside said amended order confirming sale, and
from that certain order made and entered on the 23d day of October, 1952, denying
appellants' motion for a new trial.
The facts necessary to an understanding of the points presented by the appeal are as
follows:
The deceased, Jacob Katleman, also known as Jake Katleman, died intestate, on the 22d
day of June, 1950, and at the time of his death was a resident of Las Vegas, County of Clark,
State of Nevada.
Thereafter on the 6th day of July, 1950, the First National Bank of Nevada and Liberty
Katleman, widow of the deceased, were appointed coadministrators of his estate, and on the
6th day of July, 1950, qualified as such, and are still acting as such coadministrators. On May
28, 1952, the First National Bank of Nevada, one of the coadministrators, filed a notice of
intention to sell personal property at public sale. The said personal property described in
said notice consisted of 495 shares of stock in Elranco, Inc., a Nevada Corporation, and a
promissory note in favor of the decedent against Elranco, Inc., in the amount of
$S1,631.12.
At the time the notice of intention to sell personal property at public sale was filed with
the district court the same was signed by C. D. Brown, then assistant trust officer of the
First National Bank of Nevada.
personal property at public sale. The said personal property described in said notice consisted
of 495 shares of stock in Elranco, Inc., a Nevada Corporation, and a promissory note in favor
of the decedent against Elranco, Inc., in the amount of $81,631.12.
At the time the notice of intention to sell personal property at public sale was filed with the
district court the same was signed by C. D. Brown, then assistant trust officer of the First
National Bank of Nevada. The coadministrator, Liberty Katleman, was, at the time of filing
said notice, absent from the State. The said notice was posted on the 28th day of May, 1952,
in three public places, being as follows: One at the courthouse, one at the police station, and
one at the city hall, all in the City of Las Vegas, County of Clark, State of Nevada. Said
notice was also published in the Las Vegas Review-Journal, a daily newspaper of general
circulation, printed and published in Las Vegas, Clark County, Nevada, three times, to wit:
May 28, June 3, and June 8, 1952.
Pursuant to said notice of sale, a sale was held at the south fifth street branch of the First
National Bank of Nevada, Las Vegas, Nevada, on the 9th day of June, 1952, at the hour of 11
o'clock a.m. of said day. There were present at the time of said sale, the following persons:
Liberty Katleman, one of the coadministrators of the estate of Jacob Katleman, and one of the
appellants here, Martin A. Clemens, M. L. Josephs, A. W. Ham, Jr., and Beldon R. Katleman.
A bid for said personal property was made by the said Beldon R. Katleman, being in the
amount of $184,500. There being no further bids, the stock was sold to Beldon R. Katleman
for the sum of $102,868.88, and the promissory note was also sold to Beldon R. Katleman for
the sum of $81,631.12.
Thereafter, and on the 12th day of June, 1952, the First National Bank of Nevada, one of
the coadministrators, filed a petition for confirmation of the sale. Said petition was executed
by C. D. Brown, as assistant trust officer of the First National Bank of Nevada, Las Vegas,
Nevada.
officer of the First National Bank of Nevada, Las Vegas, Nevada. At the time said petition for
confirmation was filed, the coadministrator Liberty Katleman, was absent from the State of
Nevada. The said petition, at the time of filing the same with the clerk of the court, was
noticed for hearing on the 24th day of June, 1952.
Thereafter, and on the 20th day of June, 1952, one of the appellants, Liberty Katleman,
filed objections to the confirmation of said sale, being prior to the time set for the hearing of
said petition. On June 21, 1952, William G. Ruymann, acting as attorney for Jennifer Lynn
Katleman, a minor heir, also filed objections to the confirmation of said sale.
The objections of Liberty Katleman were based on the ground that the petition for
confirmation of sale was not approved nor consented to by Liberty Katleman. The objections
of the said William G. Ruymann, on behalf of Jennifer Lynn Katleman, were based on the
ground that the stock was worth in excess of the amount bid on the same and the amount for
which the same was sold, and that the security offered to secure the unpaid balance of the
proposed purchase was inadequate, and on the further ground that there was no necessity for
the estate to sell said personal property, including the stock and the note.
On June 24, 1952, a hearing was had on the petition for confirmation in department No. 2
of said district court. At that time the coadministrator, Liberty Katleman, appeared personally
and requested that the hearing on the petition for confirmation be postponed. The court
refused to postpone said hearing at that time, and took testimony of the witnesses present. At
the conclusion of the taking of the testimony of the witnesses present, the court, however,
consented to a continuance.
Before the commencement of the hearing on the petition for confirmation, at the request of
counsel for the coadministrator First National Bank of Nevada, the presiding judge, the
Honorable A. S. Henderson, asked if there were anyone within the hearing of his voice who
would like to place a bid on the 495 shares of stock of Elranco, Inc., and the promissory
note in the amount of $S1,631.12, in favor of the deceased against the Elranco, Inc.
In support of the petition for confirmation, Mr. C. D.
who would like to place a bid on the 495 shares of stock of Elranco, Inc., and the promissory
note in the amount of $81,631.12, in favor of the deceased against the Elranco, Inc.
In support of the petition for confirmation, Mr. C. D. Brown, assistant trust officer of the
coadministrator, First National Bank of Nevada, was called to the stand. Mr. Brown stated
that the estate was in need of immediate cash and testified that the approximate amount of
debts of the estate was the sum of $160,949.94.
Mr. Kermit Moe, a certified public accountant of Las Vegas, Nevada, was next called to
the stand, and stated that the book value of the 495 shares of stock of Elranco, Inc., was
$71,961.67. The actual price bid for said stock by Beldon R. Katleman, the purchaser, was
$102,868.88. The balance of the purchase price, $81,631.12, was represented by the note in
question.
Upon the conclusion of the testimony of Mr. Brown and Mr. Moe, the hearing was
continued until July 10, 1952, at the request of the coadministrator, Liberty Katleman. On
July 10, 1952, Liberty Katleman filed a document entitled Suggested Administration of the
above entitled estate by Liberty Katleman, Co-administrator. The essence of Liberty
Katleman's suggested plan, was for her to borrow the sum of $50,000 and to use said sum to
pay certain liabilities of the estate, which she claimed amounted to a total of $49,401.31.
During the course of the hearing it developed that the corporation, Elranco, Inc., leased the
hotel premises it occupied, and that it did not own said premises.
At the completion of the said hearing on July 10, 1952, it was again recessed and
continued to July 14, 1952, at which time a further hearing was had, and at which time the
court made an order confirming the sale of said personal property by the estate to Beldon R.
Katleman. Thereafter, on the 10th day of September, 1952, the district court filed an amended
order confirming sale of personal property. The court found that the estate was indebted at
the time of said sale in the total sum of $160,949.94.
estate was indebted at the time of said sale in the total sum of $160,949.94.
On September 26, 1952, Liberty Katleman, as an heir, and William G. Ruymann, attorney
for Jennifer Lynn Katleman, a minor heir, filed a notice of intention to move for a new trial,
and to set aside the order confirming the sale and the amended order confirming the sale, on
the following grounds:
(1) Irregularity in the proceedings of the court and of the First National Bank of Nevada,
coadministrator, and irregularity in the order and amended order of the court, and abuse of
discretion by which Liberty Katleman, coadministrator, and Jennifer Lynn Katleman, minor
heir, were prevented from having a fair trial.
(2) Accident or surprise, which ordinary prudence could not have guarded against.
(3) Newly discovered evidence material for the party making the motion, which she could
not with reasonable diligence have discovered and produced at the trial.
(4) Insufficient evidence to justify the decision of the court, and that the decision of the
court was against law.
(5) Errors occurring at the trial, and excepted to by Liberty Katleman and Jennifer Lynn
Katleman, minor heir.
In support of the notice of intention to move for a new trial, Liberty Katleman submitted
her own affidavit, the affidavit of M. L. Josephs, and the affidavit of Martin L. Clemens.
Thereafter a hearing was held on these motions, and evidence taken on the issues raised.
At the time of the hearing on the motion for new trial, the appellant raised for the first
time, the following points, none of which had previously been at issue on the hearing for
confirmation of sale, that:
(1) Notice of intention to sell the stock and note, and the posting thereof, were allegedly
defective.
(2) The purported sale was allegedly not a public sale to the highest bidder, and was,
therefore, invalid.
The lower court, at the conclusion of the hearing on these motions, denied the motion for
new trial, and the motion to set aside the order confirming sale.
these motions, denied the motion for new trial, and the motion to set aside the order
confirming sale. The appellants have appealed to this court from the order and amended order
confirming sale and from the order denying motion for new trial. They have also appealed
from the order refusing to set aside said order and amended order of confirmation.
Errors relied upon by the appellants in their appeal are as follows:
(1) The court erred in confirming the purported sale, which was invalid for want of
petition for order of sale.
(2) The notice of intention to sell, and the posting thereof, were both fatally defective.
(3) The purported sale was not a public sale to the highest bidder, and consequently was
invalid; and
(4) The court abused its discretion in confirming the purported sale.
The errors will be discussed in order as listed.
Appellants contend that the order of confirmation of sale was invalid because the
coadministrator herein failed to file a preliminary petition for authority to sell the personal
property and failed to have an order entered directing the sale of the personal property to be
made.
[Headnote 1]
The present statutes do not contemplate a petition for order of sale of personal property.
The procedure now outlined by the statutes is for an administrator to notice the intention to
sell the property, and when bids have been made, and a sale has been made to the highest
bidder, report to the court of the same shall be made, and a petition for confirmation shall be
filed, after which time objections may be made. The question of the necessity for the sale can
be determined at the time of the hearing of such report and petition, and the objections made
and filed thereto.
Although the sale is made to the purchaser at the time for which the sale has been noticed,
title to the property does not become vested in said purchaser until such time as the sale has
been confirmed by the court. See N.C.L.1931-1941 Supp., secs.
such time as the sale has been confirmed by the court. See N.C.L.1931-1941 Supp., secs.
9882.139, 9882.140, 9882.153 and 9882.154. These sections correspond to the similar
sections in the state of California, as the California statutes are now amended. The Supreme
Court of California in the case of In Re Benvenuto's Estate, 183 Cal. 382, 191 P. 678 at 679,
held as follows:
The effect is that a preliminary order of the court is no longer required in order to
authorize the administrator or executor to negotiate a sale of the property of the estate for the
purposes and reasons for which a sale is authorized by the section.
See also: Marlenee v. Brown, Cal.App., 128 P.2d 137, at pages 140, 141, where it is
stated:
Under the statute in force now and at the time of these proceedings, where a sale of real
property of the estate is necessary to pay debts, legacies, family allowance or expenses, an
executor can make such a sale without any preliminary proceedings other than a notice of
sale. (See 21 Cal.2d. 668, 134 P.2d 770.)
Appellants contend that a petition was required by the provisions of sec. 9882.143,
N.C.L.1931-1941 Supp., which reads as follows:
If the executor or administrator neglects or refuses to sell any property of the estate when
it is necessary or when it is for the advantage, benefit and best interests of the estate and those
interested therein, or when the executor is directed by the will to sell the same, any person
interested may petition the court for an order requiring the executor or administrator to sell.
The clerk shall set the petition for hearing by the court, and notice thereof must be given to
the executor or administrator by citation served at least five days before the hearing.
The appellants' position is that since Liberty Katleman did not join in the notice of
intention to sell, steps should have been taken under this section to secure an order of sale.
An examination of the record in the case will show that at the time of filing by the First
National Bank of Nevada, of its notice of intention to sell, Mrs.
that at the time of filing by the First National Bank of Nevada, of its notice of intention to
sell, Mrs. Katleman, coadministrator, was absent from the state of Nevada. Sec. 9882.44,
N.C.L.1931-1941 Supp., reads in part as follows:
* * * When there are two executors or administrators the acts of one alone shall be valid
if the other is absent from the state, or for any cause is laboring under any legal disability. * *
*
In the case of Wheeler V. Bolton, 54 Cal. 302, it is stated:
If one of two executors be absent from the state, the other can administer, and his
accounts can be settled and a distribution be had. The presence of Adams was not necessary.
Code of Civil Procedure, sec. 1355.
[Headnote 2]
It therefore appears that the First National Bank of Nevada had authority to file the notice
of intention to sell personal property at public sale, to institute the sale of the property,
whether real or personal, belonging to the estate, if, in their opinion, they determined that the
sale of such property was necessary, and owing to the fact that Mrs. Katleman was absent
from the state there was no reason for the filing of any petition to compel her to sell the
property as her coadministrator alone had that power.
[Headnote 3]
In any event, Mrs. Katleman had the same right on the hearing to confirm the sale, to resist
the sale, as she would have had on a petition to compel the sale. The primary issue in each
case is the same; that is, what is for the best interests of the estate. She had a hearing on that
issue, she had a continuance for some seventeen days to secure counsel and to secure further
evidence, and to propose a plan which would avoid the necessity of the sale.
Thereafter, Mrs. Katleman was present in court, represented by counsel, and filed a
petition seeking an order permitting the estate to borrow the sum of $50,000 and
presented evidence thereunder.
represented by counsel, and filed a petition seeking an order permitting the estate to borrow
the sum of $50,000 and presented evidence thereunder. The court, after hearing all of the
evidence submitted in support of the petition for confirmation of sale and the petition for
authority to borrow, deemed it was for the best interests of the estate that the stock be sold to
Beldon R. Katleman. It also developed on the hearing that Elranco, Inc., merely leased the
hotel premises it occupied and did not own them. The court stated:
That is what I don't like. If the stock was worth a lot of money I don't see why there aren't
other bidders. It was open to everybody. There is no question about the legality of the sale.
That is the question for the court, because 495 shares of stock of the Elranco does not
represent anything but a gambling syndicate that has a lease. If they owned the property it
would be a different proposition. They don't own it, the evidence shows. There is a gambling
establishment, a hotel and restaurant. I think the bank made the sale regularly and lawfully
and legally. I don't think there is any question where that is concerned.
[Headnote 4]
From the foregoing we are of the opinion that the lower court exercised its sound
discretion and committed no error in confirming the sale of the Elranco, Inc. stock and note to
respondent, Beldon R. Katleman.
The second assignment of error is that the notice of intention to sell, and the posting
thereof, were both fatally defective.
[Headnote 5]
Appellants contend that inasmuch as the letters of administration in this estate were issued
to the First National Bank of Nevada, Las Vegas, Nevada, such notice of intention to sell
personal property and the petition for confirmation of sale should have been signed by the
First National Bank of Nevada, Las Vegas, Nevada, in lieu of First National Bank of Nevada,
Las Vegas Branch.
Vegas Branch. We are of the opinion that such contention of appellants is without merit. The
First National Bank of Nevada, Las Vegas Branch, is not a different person from the First
National Bank of Nevada. It is one and the same corporation. The corporation is the
administrator and the fact that it carries out its functions by one agent or another would be
immaterial, for it is the corporation as such, the corporate entity, that is the administrator. It is
immaterial whether the bank carries out its functions as administrator through its Reno office
or its Las Vegas office. The bank itself is the coadministrator and not its agents. The First
National Bank and the First National Bank, Las Vegas Branch, are one and the same person.
Both respondents and appellants recognize this in their various designations in the record.
[Headnotes 6, 7]
It is further contended that the notice of intention to sell was defective in that the affidavit
of posting should have described the places where the posting took place as public places. In
our opinion the posting of the notices fully complies with the law. Sec. 9882.153,
N.C.L.1931-1941 Supp., provides personal property may be sold only after public notice is
given for at least ten days by notices posted in three public places in the county in which the
proceedings are pending, or by publication in a newspaper in such county, or both, as the
executor or administrator may determine. The record shows a publication for the requisite
time, which publication alone would have been sufficient. However, in addition thereto, three
copies of such notice were posted, one at the county courthouse, one at the city hall, and one
at the police station, all in the City of Las Vegas, County of Clark, State of Nevada. The
lower court found these notices to have been posted according to law. It has been held many
times that the county courthouse, city hall and police station are all public places. See Walker
v. Sundermeyer, 271 Mo. 579, 197 S.W. 102, 2 A.L.R. 100S.
2 A.L.R. 1008. See also, Roach v. City of Eugene, 23 Or. 376, 31 P. 825.
The third assignment of error is that the purported sale was not a public sale to the highest
bidder, and consequently was invalid. The contention of appellants is that since the sale was
made subject to the bylaws of Elranco, Inc., a Nevada corporation, said sale was restricted,
and due to such restrictions, was not a public sale, and that the assistant trust officer who
conducted the sale, at the time of the sale stated, This sale is restricted by the by-laws of the
corporation. There is a conflict in the evidence as to whether the statement attributed to the
assistant trust officer was ever made.
[Headnotes 8, 9]
The lower court found the sale to have been a public one, and on the disputed question of
fact its finding is conclusive. However, even if the statement had been made to the effect that
the sale was subject to the bylaws of the corporation, this statement would not have rendered
the sale other than a public sale. Such a sale is one where the public is invited to participate
and given full opportunity to bid on a competitive basis for the property placed on sale, which
is sold to the highest bidder. See note on what constitutes a public sale, 4 A.L.R. 2d, page
575. According to the record there was no evidence given at the time of the hearing on the
petition for confirmation of sale, or the motion for a new trial, that the sale was not held in a
public place where more than one person had an opportunity to bid on the stock.
[Headnote 10]
The fourth assignment of error is that the court abused its discretion in confirming the sale.
By sec. 9882.139 N.C.L.1931-1941 Supp., it is provided:
In selling property to pay debts, legacies, family allowance or expenses, there shall be no
priority between personal and real property. When a sale of property of the estate is necessary
for any such purpose, or when it is for the advantage, benefit, and best interests of the
estate and those interested therein that any property of the estate be sold, the executor
or administrator may sell the same, either at public auction or private sale, using his
discretion as to which property to sell first, except as provided by sections 135 and 136 of
this act."
it is for the advantage, benefit, and best interests of the estate and those interested therein that
any property of the estate be sold, the executor or administrator may sell the same, either at
public auction or private sale, using his discretion as to which property to sell first, except as
provided by sections 135 and 136 of this act.
Under this statute, the questions before the lower court on the hearing of the order for
confirmation were whether the sale was necessary and whether it was for the benefit,
advantage and best interests of the estate and those interested therein. In determining this
question, the lower court was entitled to exercise its best discretion under the facts. See
Nielson's Estate v. Nielson, et al., 107 Utah 564, 155 P.2d 968, at page 974.
[Headnote 11]
Evidence in the lower court showed, and the court found that at the time of the hearing the
estate owed the First National Bank of Nevada $37,276.37 on an overdraft; that there was a
judgment of $11,260 against the estate and held by Beldon R. Katleman; that there was due to
Elranco, Inc. $863.94; that there was payable to Mary Katleman, a former wife of the
decedent, under a certain separation agreement, $95,548.63. It estimated the balance of the
costs of administration and attorneys' fees as $16,000. This represents a total of $160,949.94.
To satisfy these claims, the estate had on hand no cash. It held the Elranco, Inc. note of
$81,631.12, the 495 shares of stock of Elranco, Inc. which were sold along with the note
appraised at $96,368.86, and other assets of $36,250. It was therefore obvious that if the
creditors were to be paid, the note and the Elranco, Inc. stock would necessarily have to be
sold, as the remaining assets were less than 25 percent of the obligations of the estate.
The argument offered by appellants affecting the question of the necessity of sale was that
presented in the lower court, and that is here urged, is that if time were given, Mrs. Katleman
could borrow $50,000 on the security of the stock, and that by delaying the administration
until the Elranco note became due, another $S1,000 plus could be realized to satisfy
creditors.
until the Elranco note became due, another $81,000 plus could be realized to satisfy creditors.
The note of Elranco, Inc. was due in 1953. These amounts, if realized, would have still been
insufficient by a considerable amount to pay off the creditors' claims, and the stock would
then have been subject to the lien for the loan of $50,000. The proposed plan was not looked
upon with favor by the lower court. The Elranco, Inc. is the lessee, not the owner, of a large
hotel in the Las Vegas area and is engaged in the gambling business. The lower court pointed
out that the 495 shares of stock of Elranco, Inc. did not represent anything but a gambling
syndicate that had a lease; the corporation was simply the lessee of a gambling establishment,
hotel and restaurant. The lower court was therefore presented with the problem of whether or
not it should risk the chances of creditors losing at least a part of their claim in the future by
reasons of the hazards of an uncertain enterprise, or whether to confirm the sale which would
insure the payment of all creditors in full and leave a substantial amount for the heirs.
The only other matter involved on the hearing, therefore, was the fairness of the price for
the stock. The stock was appraised for $96,368.86. The testimony of the certified public
accountant employed by the First National Bank of Nevada to investigate the books of the
corporation reported the book value of the stock to be $71,961.67. The actual bid price of the
purchaser at the sale was considerably in excess of both of these figures and amounted to
$102,868.88. There was other contrary evidence on the value of the stock. Mrs. Katleman
stated that she felt the stock was worth $250,000.
On the hearing on the order for confirmation on June 24, the court on two different
occasions asked if there were any other bidders that desired to bid on the stock. No further bid
was forthcoming.
In the case of In Re Scott's Estate, 172 Cal. 485, 157 P. 242, the court held that whether or
not the property is sold for a price disproportionate to its value is one which is always within
the sound discretion of the court.
which is always within the sound discretion of the court. It must consider all the facts of the
case, including the value and condition of the estate, the necessity for funds, the state of the
market, and all other matters bearing on the question.
The lower court had before it at the time of confirmation the question of the best interests
of the estate, meaning all of the heirs and creditors of the estate at the time the sale was made.
It had before it the problem of whether to risk the creditors' interests in an attempt to secure a
higher price for the stock at a later date without having any further bidders on the scene. It
was within its discretion to approve or disapprove the sale, depending on the best interests of
the entire estate.
No errors appearing and no abuse of discretion having been shown, the orders of the lower
court are affirmed.
The respondents are awarded their costs.
May 14, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 347, 347 (1954) Richardson v. Bd. of Regents
THE STATE OF NEVADA, Upon the Relation of FRANK RICHARDSON Petitioner, v. the
BOARD OF REGENTS OF THE UNIVERSITY OF NEVADA, and SILAS E. ROSS, ROY
A. HARDY, LOUIS E. LOMBARDI, NEWTON CRUMLEY and A. C. GRANT,
Constituting the Members of said Board, Respondents.
No. 3759
April 20, 1954. 269 P.2d 265.
Original proceeding in certiorari to review action of board of regents of the University of
Nevada discharging petitioner.
See also 70 Nev. 144, 261 P.2d 515.
Order vacated.
Bruce R. Thompson, Leslie B. Gray, Bert Goldwater and Ralph K. Wittenberg, all of Reno,
for Petitioner.
W. T. Mathews, Attorney General, of Carson City, Lester D. Summerfield and Harlan L.
Heward, Special Assistant Attorneys General, both of Reno, for Respondents.
1. Officers.
On certiorari to review administrative tribunal's dismissal of employee, supreme court may reject
consideration of nonjurisdictional errors committed by tribunal, but if employee's actions are held by
tribunal, under uncontradicted evidence to be cause for his dismissal, supreme court is not precluded from
determining on certiorari, as matter of law, that such actions were not cause for employee's removal.
2. Administrative Law and Procedure; Colleges and Universities.
Findings of investigating board ordering college employee's removal will be reviewed by courts to
determine whether cause for such removal was shown by evidence.
A state university professor's statement, in opening meeting of university chapter of American
Association of University Professors as president thereof, that he was surprised to see so many there in
view of university president's unfair and unwarranted criticism of association, and distribution among
faculty members of copies of magazine article criticizing public schools, colleges of education, teachers'
colleges and professional educators, did not constitute causes for his removal from
faculty by university board of regents on grounds of insubordination,
uncooperativeness and conduct not in accord with university's welfare.
professional educators, did not constitute causes for his removal from faculty by university board of regents
on grounds of insubordination, uncooperativeness and conduct not in accord with university's welfare.
Insubordination, warranting university professor's discharge, imports willful disregard of express or
implied directions or such a defiant attitude as to be equivalent thereto.
OPINION
This is an original proceeding in certiorari to review the action of the board of regents of
the University of Nevada discharging the petitioner, Dr. Frank Richardson, as a member of
the faculty of the university, which action was taken after hearing pursuant to notice. The
order removing petitioner was based upon findings that he had demonstrated insubordination,
had not been cooperative and that his conduct had not been in accord with the welfare of the
university. Such findings and the evidence supporting the same are the subject of a large part
of our present inquiry, to be dealt with later.
So much publicity has been given to the case, both within and without the State of Nevada,
and covering a period beginning even before the filing of the formal charges against petitioner
and continuing to the submission of the matter to this court; so many conflicting theories have
been injected into the case; so much has been said both in the briefs and in the oral arguments
in attacking the matter from various angles, that we find it almost as important to indicate
issues which are not presented to us as to define the issues presented for our determination.
We are not called upon to determine the question of academic freedom. The case submitted
does not call for the determination of any controversy thought to exist between the petitioner
and Dr. Minard Stout, president of the university. As a court we may not consider the
sufficiency or insufficiency of the curricula of the secondary schools or of the university
itself.
The matriculation of Nevada high school graduates into the university, with or without
quality credits (concerning which the regents have several times altered the policy of the
university), is not a matter for our determination. The extent to which the regents may limit,
curtail or eliminate entirely faculty participation in matters of the curriculum, entrance
requirements or other academic policies is not involved in this proceeding. Petitioner does not
attack the integrity or good faith of the board of regents. Our burden, heavy as it is, may be
somewhat lightened by this clear understanding of issues not involved in this review. It is
conceded that petitioner enjoyed tenure status whereunder he was not subject to discharge
except for cause.
1

Petitioner presents as the issue the determination as to whether, at the hearing held by the
board of regents, legal cause was shown in support of the order of removal. This in turn
involved a discussion of the evidence purporting to support the findings of insubordination,
uncooperativeness, and conduct not in accord with the welfare of the university.
Such statement of the issue by petitioner is met by the contention of the regents that if the
record shows that any evidence of the type required to support the ruling was presented, the
court may on certiorari not inquire further; that as some evidence was introduced, further
review may not be had by this court; that although consideration of the sufficiency of the
evidence might be proper in proceedings in mandamus, injunction or other remedies, the
remedy of certiorari sought by petitioner limits him to the question of the jurisdiction of the
board of regents over the parties and the subject matter and the holding of a hearing after
notice at which some evidence bearing a reasonable relationship to the order was adduced.
The brief and the oral argument of the regents proceeded then to a rather full discussion of
the evidence to indicate a supporting record for the three findings.
____________________

1
The pertinent provisions of the order of the board of regents establishing tenure are quoted in our opinion in
State ex rel. Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515.
discussion of the evidence to indicate a supporting record for the three findings.
Anticipating from our opinion denying the motion to dismiss the writ in this case,
Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515, and from our reference therein
to Whalen v. Welliver, 60 Nev. 154, 104 P.2d 188, 1016, our probable disposition to hold
that the question of the existence of cause for removal is one of law, respondents contend that
it is for the board to determine what constitutes cause. In support of this view respondents
rely upon the following statement of the Supreme Court of Illinois in Joyce v. Board of
Education, 325 Ill. App. 543, 60 N.E.2d 431, 435:
The question as to who shall determine what constitutes cause has frequently been
presented to the court, and the rule to be deduced from the authorities is that where the statute
is silent as to what constitutes cause, the right to determine the question is in the tribunal
having jurisdiction of the particular officer or employee.
It is important to note however, that after making the foregoing statement the court
proceeded to recite the facts in the case and then to hold that the board was fully justified in
finding that a teacher writing such a letter ought not to be permitted to continue as a teacher
in the public schools. Having thus first held that the right to determine what constituted
cause was in the board, the court then, as we have seen, proceeded to determine that the board
was justified under the facts in finding cause. The court then reverts to its first position and
says that having jurisdiction of plaintiff as an employee of the board, it had the right to
determine whether her conduct constituted cause for dismissal.
Respondents say that the Joyce case was approved in the later Illinois case of Eveland v.
Board of Education, 340 Ill. App. 308, 92 N.E.2d 182. That case quotes the language recited
above and concludes that the board had authority to determine in the first instance what
causes were remediable and that the board was within its rights in determining cause "in the
first instance."
its rights in determining cause in the first instance. Stiver v. State, 211 Ind. 380, 1 N.E.2d
1006, 1008, 7 N.E.2d 183, likewise is cited by respondents to the effect that mandamus by a
teacher to compel rescission of an order of cancellation of his contract will not afford review
of the weight and effect of the evidence upon which the administrative decision is based. That
case does in fact so hold. On the other hand the court states the Indiana rule to be that if the
cause' assigned bears no reasonable relation to the accused's fitness or capacity to hold the
position in question, or if there is no evidence to support a finding of cause' * * * it is the
plain duty of a court to declare void a dismissal under such circumstances, and to give relief
in an action for mandate. The court then reviews some of the evidence and says: But the
probative force of this evidence was such that the trial court could not say as a matter of law
that it was not sufficient to support a conclusion that the relator in fact had neglected his
duties * * *. The court goes on further to say: It is a close question whether the evidence
failed to support the charge of insubordination. We cannot say that there was not sufficient
evidence to support the charges of neglect of duty' and lack of co-operation.'
It is apparent that a confusing situation is presented by the Illinois and Indiana authorities
relied upon by respondents. It is true that these courts pay lip service to the rule that it is the
function of the administrative agency, at least in the first instance, to determine whether there
is just cause for removal. It is just as apparent however, that these courts have then reviewed
the evidence in order to determine whether the administrative tribunal had properly
determined that just cause existed. Indeed in the Joyce case the Supreme Court of Illinois said
that on certiorari the scope of review included the determination of whether there was cause
for removal. This appears to coincide with the holding of this court in Whalen v. Welliver,
60 Nev. 154, 104 P.2d 1SS, 190, 1016, defining cause as "legal cause, and not any cause
which the council may have deemed sufficient.
P.2d 188, 190, 1016, defining cause as legal cause, and not any cause which the council may
have deemed sufficient. * * *
[Headnote 1]
It is not necessary for the purpose of this opinion that we review and discuss all of the
ramifications of the subject. We may freely reject any consideration on certiorari of matters
that do not go to the jurisdictionnonjurisdictional errors that may have been committed by
the respondent tribunal, a resolving of conflicting testimony in favor of one side rather than
the other, accepting the testimony of one witness and rejecting the testimony of another. But,
as we review the authorities, if under uncontradicted evidence certain actions of an employee
are held by the tribunal to be cause for dismissal under the circumstances, we are not
precluded, in certiorari, from determining, as a matter of law, that such actions are not cause
for removal. In Richardson v. Board of Regents, 70 Nev. 144, 261 P.2d 515, we referred to
Graves v. School Committee of Wellesley, 299 Mass. 80, 12 N.E.2d 176, 179, without
quotation from that case. There Chief Justice Rugg, speaking for that eminent court, referred
to earlier Massachusetts cases, saying: The term removal for cause' means removal for
cause sufficient in law. That can only be determined after an opportunity to be heard and a
finding, so that the sufficiency of the cause may be determined in court.' Later the court said:
While the decision whether proper charges have been substantiated rests with the school
committee, an affirmative decision can be rendered only when the truth of the charges has
been supported by evidence adequate in law to warrant that conclusion. (Emphasis
supplied.)
[Headnote 2]
We need not follow the subject further. The authorities are overwhelmingly to the effect
that the findings of the investigating board will be reviewed by the courts to determine
whether cause for removal has been shown by the evidence. The question arose in various
kinds of proceedingscertiorari, mandamus, injunction, etc.
of proceedingscertiorari, mandamus, injunction, etc. The cases involved university regents,
high school boards of education, boards of district school trustees, etc. The conclusion that
we have reached we consider to be established law, and not in conflict with our consistent
holdings confining our review on certiorari to the question of jurisdiction.
Before proceeding to a discussion of the facts a brief summary of the proceedings to date
will be in order. On March 31, 1953, Dr. Minard Stout, president of the university, wrote a
registered letter to petitioner requiring him to appear before the regents April 10, 1953, at
11:30 a.m., to show cause why he should be continued as a member of the faculty of the
University of Nevada beyond June 30, 1953. The letter referred to petitioner as being a
member of a small dissatisfied minority group whose disturbing activities over several
years included (1) the attempt to develop friction between departments on the campus and (2)
between the university and the public schools of the state, (3) the spreading of false
information to imply the abolishment of many faculty committees, (4) to imply the lowering
of academic standards, (5) to imply the maltreatment of faculty members by the
administration, and (6) the alarming of faculty, townspeople and legislators without
presenting the matter to the administration or to the faculty welfare committee; that these
activities reached a climax during the recent legislative session, resulting in an investigation
of university affairs by a special legislative committee to investigate rumors concerning
conditions at the university.
A similar notice to show cause was directed to four other members of the faculty with
appearances spaced at 30-minute intervals on the same date. Such hearing was stayed by a
writ of prohibition issued out of this court pending the furnishing to petitioner of sufficiently
adequate particulars of the grounds for dismissal. Such bill of particulars was served April 25,
1953, and comprised a pleading of ten typewritten pages, subdivided into paragraphs
numbered from 1 to S, which in turn were divided into numerous unnumbered
paragraphs.
into paragraphs numbered from 1 to 8, which in turn were divided into numerous
unnumbered paragraphs. Charge No. 1 alleged generally an uncooperative and insubordinate
attitude on the part of petitioner toward the dean of his college, the president and the regents.
Paragraph 2 alleged his opposition to the relaxing of admission requirements and to his
expressed intention to fight any change in the present requirements in every way that he
could. It is conceded that no evidence was offered in support of the quoted charge.
Paragraph 3 had reference to his opposition to proposed abandonment of certain practices of
distributing among the faculty the gradings made by each professor as to each student. The
regents concede that no evidence supporting this count was adduced. Charge No. 4 is that in
November, 1952, Dr. Richardson secured and distributed among the faculty reprints of an
article by Dr. Arthur E. Bestor, Jr., entitled Aimlessness in Education, which was
exceeding critical of public schools, Colleges of Education, Teachers Colleges and
professional educators. This distribution of this article incensed a number of the Professors at
the University of Nevada. Charge No. 4 further alleges that on November 19, 1952, Dr.
Richardson had claimed that he had been abused by the president and that he had been treated
unfairly by the president; also that in November and December of 1952 he indicated that he
would continue his fight or controversy, with apparent reference to his opposition to the
relaxing of entrance requirements. Charge No. 5 asserted that Dr. Richardson advocated
legislation by the 1953 legislature permitting aliens to teach in this State. Charge No. 6
alleged that on April 21, 1953, he had refused to sign, in the form as written, a five-point
statement submitted by the dean of his college, with the approval of the president. This was a
similar statement submitted to three of the other four faculty members involved. Charge No. 7
alleged that petitioner had referred to the president as a dictator and further that petitioner had
stated that he had been abused by the president.
stated that he had been abused by the president. Charge No. 3 alleged that the president had
addressed a faculty meeting on the afternoon of February 18, 1953, and that on the same
evening at a monthly meeting of the local chapter of the American Association of University
Professors, petitioner stated untruthfully that the president had at the faculty meeting made an
unfair and unjustified attack on the said A.A.U.P.
A hearing upon the charges was held May 25, 26 and 27, 1953. As noted, it was conceded
that as to some of the charges no evidence had been adduced. Following the hearing the board
made the following finding:
The Board determines that Dr. Frank Richardson had demonstrated insubordination, that
he has not been co-operative and that his conduct has not been in accord with the welfare of
the University.
On the basis of this finding the board made its order of June 9, 1953, removing Dr.
Richardson as a member of the faculty of the university.
That part of the record having to do with the finding of lack of cooperation and of conduct
not in accord with the welfare of the university does not justify discussion at length. Some of
the matters we dismiss as trivia; others involved matters not included within the original
charges or within the bill of particulars but which occurred later than both of these
instruments. They dealt largely with Dr. Richardson's refusal to resign, after the charges had
been filed, and with his refusal to sign an instrument which, under the circumstances, would
be considered by many as an admission of guilt and a promise of future good conduct and
recognition of superior authority.
Only two counts are left that require consideration, and these are the two on which
respondents most strongly rely. One deals with the charge that Dr. Richardson asserted that
President Stout had made an unfair and unjustified attack on the organization known as
American Association of University Professors (A.A.U.P.); the other has to do with Dr.
Richardson's distribution, about November 11 or 12, 1952, of some thirty copies of an
article by Dr.
distribution, about November 11 or 12, 1952, of some thirty copies of an article by Dr. Arthur
E. Bestor of the University of Illinois, published in The Scientific Monthly, entitled
Aimlessness in Education.
[Headnote 3]
A large part of respondents' brief and likewise of respondents' oral argument to this court
deals with what is characterized as Dr. Richardson's false accusations against the president. In
the oral argument, counsel referred to the same as atrocious untruths. Petitioner, president of
the local chapter of the American Association of University Professors,
2
in opening the
meeting of the association on the evening of February 18, 1953, stated in substance: I am
surprised to see so many here in view of the unfair and unwarranted criticism of the A.A.U.P.
made by the president this afternoon.
The regents called some seven or eight members of the faculty to testify, first, that
petitioner had made such statement and, secondly, that the president in his address to the
faculty that afternoon had not attacked A.A.U.P. The president had said in part to the faculty
that afternoon: * * * I think it is time that we laid our cards on the table * * * The university
is under fire because of dissension in the faculty. When I returned from Carson I found on
my desk a notice of an A.A.U.P. meeting to be held tonight on faculty participation in
university affairs.
____________________

2
The local chapter contained about 54 members of the University of Nevada faculty. The national association
publishes a quarterly bulletin of 150 pages or more, and contains many well considered articles. Successive
official bulletins of the university have described the association as follows:
The Nevada Chapter of the American Association of University Professors meets informally seven or eight
times during the University year to discuss questions of interest to the profession of university teaching and
research. The objects of the association as defined in its constitution are: To facilitate a more effective
cooperation among teachers and investigators in universities and colleges, and in professional schools of similar
grade, for the promotion of the interests of higher education and research, and in general to increase the
usefulness and advance the standards and ideals of the profession.'
For the profession of university and college teaching and research, the position and functions of the
association are analogous to those of the American Bar Association and the American Medical Association in
their respective fields.
returned from Carson I found on my desk a notice of an A.A.U.P. meeting to be held tonight
on faculty participation in university affairs. This is the sort of thing that reflects the attitude
that there is dissension on the campus * * *. Has the president lowered standards? I spoke to
A.A.U.P. on this subject last fall and presented research data to support my point of view. I
invited the members to send me research on the other side and to this day there has been no
response to this invitation. * * * Does the faculty have a voice in university affairs? The
measure of democracy in a faculty is the measure of the freedom of a faculty member in his
own work, in the job he is paid to do * * *. As to the committees I feel that these should be
made up of people who are experts in the field under discussion. You cannot pool ignorance
and come out with knowledge. The imputation that the A.A.U.P.'s advocacy of faculty
participation in university affairs was improper, that it indicated dissension on the campus,
that the freedom of a faculty member should be confined (contrary to the A.A.U.P. theory) to
the job he is paid to do, the implications implicit in the statement that you cannot pool
ignorance and come out with knowledge, could with reason be considered an attack on
A.A.U.P. Whether it was unfair or unjustified or unwarranted might be largely a matter of
opinion. The high standing of the association is indicated in the university's official
recognition of it as described in footnote 2. The faculty members attending the A.A.U.P.
meeting and hearing the statement made by Dr. Richardson presumably had for the most part
attended the faculty meeting that afternoon and heard the address by President Stout. They
could not be misled as by an untrue statement and could not have considered Dr. Richardson's
statement other than as the statement of an opinion. His hearers may have agreed or disagreed
with that opinion. It is apparent that seven or eight at least disagreed. Faculty participation in
university academic matters was not only an objective of A.A.U.P., it was part of the
expressed policy of the University of Nevada at the time.
part of the expressed policy of the University of Nevada at the time. But assuming for the
sake of argument that there was some degree of impropriety or lack of taste in Dr.
Richardson's remarks in opening the A.A.U.P. meeting, we have no hesitancy in concluding,
in view of Dr. Richardson's history and record at the university, that it did not of and in itself
constitute cause for removal.
The entire basis of the claim of insubordination would appear to be not merely the
distribution of the Bestor article but its alleged purpose to attack the department of education
of the University of Nevada and to attack the president. As against this, petitioner steadfastly
asserted that his purpose in distributing the article was not to attack either or to attack
anybody, but to substantiate the proposition that entrance requirements were important and
that they directly involved the petitioner as head of the department of biology and the students
in his classes. Before discussing this in detail it is important to note that at the time of the
distribution of the article the matter of entrance requirements was an open question. It had
been a question involving not only much discussion and consideration but involving action by
the board of regents on more than one occasion. Prior to 1946 matriculation into the
university had depended on meeting requirements both as to courses taken in the secondary
schools and as to grades received in those courses. Witnesses referred to these as subject
matter requirements and quality credit requirements. For a period of time these requirements
were officially relaxed, and from 1946 to 1950 graduates of Nevada high schools were
admitted to the University of Nevada simply by virtue of their graduation certificates and
recommendation of the high school principals and without regard to courses taken or grades
made in those courses. The results apparently proved unsatisfactory. A poll was taken of the
principals of the high schools in the state as to their reaction to such system. This poll was
apparently, so far as appears in the record in this case, the only research made locally upon
the question, and it showed overwhelmingly that the secondary school administrators
favored the re-establishment of entrance requirements.3 By official action such
requirements were re-established and were in effect at the time Dr.
in this case, the only research made locally upon the question, and it showed overwhelmingly
that the secondary school administrators favored the re-establishment of entrance
requirements.
3
By official action such requirements were re-established and were in effect at
the time Dr. Stout became president of the university on August 1, 1952. Dr. Stout's address
to A.A.U.P. on October 15, 1952, left the matter open, and suggested the expression of other
views contrary to his own if further research developed the same.
4
To this situation must be
added the fact that the university's declaration of policy, which had the approval of the
president and the board of regents and was duly reported to the governor, establishing the
rights of members of the faculty in determining fundamental educational policy, was still in
effect.
5
It was under these circumstances that Dr. Richardson, a member of the faculty for
eleven years, head of the biology department at the time, a member of the faculty welfare
committee, president of the local chapter of American Association of University Professors,
chairman of the scholastic standing committee, and the recipient of other honors,
distributed about thirty copies of Dr.
____________________

3
The vote of the high school principals: 11 to 3; the vote of the high school teachers: 178 to 9.

4
The secretary of A.A.U.P. at the time of this meeting, read the minutes thereof, which read in part as
follows: Professor Little then introduced university President Stout, who spoke on the subject of THE NEW
SECONDARY SCHOOL AND ITS IMPACT UPON THE UNIVERSITY. Following President Stout's talk was
a considerable and varied discussion in which most of the members brought up questions on admissions,
policies, standards, finances, and other matters suggested by his talk. President Stout suggested a re-examination
of current policies and attitudes on these problems. Indications were that discussion would continue after the end
of the meeting. The meeting was adjourned at 9:50 P.M.

5
Under date of November 13, 1950, under title Ideas and Suggestions Concerning Policy and Principle,
Dr. Malcolm A. Love, then president of the university, said among other things:
The faculty, through its organization and within the limitations prescribed by the constitution and laws of the
State and the rules and regulations of the Board of Regents, representing the people of the State, should
determine the fundamental educational policy of the University.
* * * All ideas, whether critical or constructive, must be considered on their merits, without reference to
their source. While minorities must never become pressure groups stressing their own
chapter of American Association of University Professors, chairman of the scholastic
standing committee, and the recipient of other honors, distributed about thirty copies of Dr.
Bestor's article about November 11 or 12, 1952, including a copy to President Stout.
The case in chief against Dr. Richardson in support of the charge of insubordination was
opened by the presentation as witnesses, of the dean of the College of Arts and Sciences, the
chairman of the Department of Physical Education and professor of physical education on the
campus, a teacher in the physical education department, the dean of the College of
Engineering, the dean of women, a professor of mining and metallurgy, Mackay School of
Mines, a professor of journalism and a professor of history and political science. All of these
members of the faculty testified in effect that their reaction to receipt of the Bestor article was
that it was an attack upon professors of education and an attack on President Stout.
6
To each
copy of the article distributed was attached a brief typed note by Dr. Richardson. One read: I
thought you might enjoy this article if you may not have already read it.
____________________
interests as opposed to the welfare of all, neither should they be disinherited and thereby lose their interest in the
larger welfare of the University. We hope there will be a different representation in every minority. No person
should find it necessary or advantageous to concentrate on ways and means of satisfying his own individual
interests. These minority groups should be encouraged in their study to test and refine group thought and
expression.
The foregoing was formally approved by the board of regents December 2, 1950.

6
The introductory note in the August, 1952, Scientific Monthly concerning the author of Aimlessness in
Education reads as follows: Dr. Bestor (Ph.D., Yale, 1938) speaks, in the article below, from long experience.
Beginning at Yale as an instructor in history in 1931, he has taught and lectured widely ever since. He was at
Columbia and Teachers College in 1936, at Stanford from 1942 to 1946, a Newberry fellow at Chicago's famous
Newberry Library in 1946, and at the University of Wisconsin in 1947. He has been in the Department of
History of the University of Illinois since then. He was made a member of the Committee on American
Civilization of the American Council of Learned Societies in 1950. The article contains a page or more of
introductory matter defining the Jeffersonian concept of education as the kind that results in the spread of
information and the diffusion of knowledge, that
if you may not have already read it. It seems excellent to me, and perhaps very timely. Frank
R. Some of the others varied from this form but were to the same general effect. The
witnesses explained their reaction in various ways. One thought it was an attack on the
president because the article attacked professional educators and the president was such.
____________________
makes the people enlightened and informs their discretion and emphasizes the necessity for a command of
written English, mathematics, science, history and the other disciplines necessary alike whether or not the high
school students concerned intend to go to college. The first major part of the article then deals with the situation
under which the author claims that American educators are deliberately and consciously cutting the public
schools loose from these disciplines, substituting in their place sundry courses which the author describes as
trivia. The situation in the Illinois secondary school curriculum program is dealt with at length as an example
supporting the author's views. Dr. Bestor then purports to show similar inroads into college curricula, citing
Michigan as an example. Typical of his expressions is that the professional educators * * * propose to train
citizens to cope with the vast technical questions that are posed by science, by an intricate industrial system * * *
[by providing that] after nine full years of formal schooling a student need not be expected to read his native
language or to know the multiplication table, and in college he is doing well if he can read long numbers and * *
* round them off.' The rest of the article is devoted to the contention that these preposterous ideas originated
and are being propagated by three groups (1) professors of education in universities, colleges, teachers colleges
and normal schools, (2) school superintendents, principals and other local administrators and (3) state and
federal officials and bureaucrats. * * * an interlocking public school directorate * * * of professional
educators. The part of the article quoted by counsel in their briefs, read to the court during oral argument, and
used in questions propounded to witnesses at the hearing, and evidently considered by the respondents as the
extreme example of the author's attack upon the president of the university as a professional educator reads as
follows: Professors of education have failednay, have refusedto do any of these things. [to develop
curricula more thorough and rigorous than those of the slipshod past; to stimulate and encourage rising standards
of disciplined training; to advance the ideals of liberal education, etc.] There are honorable exceptions, of
course. But, by and large, professors of education have never undertaken to transmit to the public school
bureaucracy the considered educational views of their scholarly and scientific colleagues. Instead they have
arrogated to themselves the sole right to speak, in the name of the university, on matters of public school policy.
They have used the prestige of the university not to advance but to undermine science and learning in the
schools. And they subject to personal
president because the article attacked professional educators and the president was such. One
thought it attacked President Stout because if there was anything else about the university,
except President Stout's advent, that was timely, it eluded him. President Stout considered
it an attack upon the education department of the university. The record nowhere contains any
statement by Dr. Stout that he considered the article an attack upon him, nor do the findings
of the regents include any finding to such effect. The director of the school of education,
holding, like President Stout, a doctor of education degree, felt some concern about the
article, went to see Dr. Richardson, convinced him that there were some weaknesses in the
article and was quite convinced that this article was not meant to attack schools of education
or professors of education and was quite thoroughly convinced that there was no intent to
reflect on his department. It was passed around among the other members of his department,
was discussed briefly, but caused no great disturbance. He testified: * * * the general
consensus was that he had not meant to hurt me or my department * * *. The article made
the professor of physical education [wonder] why [Dr. Richardson] wasn't taking care of his
own business."
____________________
vituperation any colleague in the liberal arts who ventures to protest. In their eyes a lifetime of teaching cannot
make a scholar or scientist anything but a meddlesome amateur when public educational policy is up for
discussion. Criticisms of Dr. Bestor's article, appearing in a later issue of The Scientific Monthly, and which
Dr. Richardson characterized as being fair criticism, and to which he frankly called attention, were to the effect
that the article implied that all public schools had fallen prey to the progressive system, that the article as a
whole seemed a caricature unsuitable for publication in a scientific journal; that as a matter of good taste, one
might call into question the author's use of invective, irony, sarcasm and name-calling; that it is naive to
believe that the task of education can be carried out successfully by the application of any simple formula,
however time-honored; that Dr. Bestor is presumptuous when he asserts that the iron curtain stretching across
the educational world was fashioned by educators, but that on the contrary the professors of the academic
subjects, completely immersed in their respective fields, are likewise largely responsible.
his own business. He threw the Bestor article in the wastebasket. He was of the definite
opinion that Dr. Richardson should not concern himself as a member of the faculty or as a
member of the scholastic standing committee with any of these admission questions and * * *
with reference to university policy, with educational policy. The teacher in the physical
education department thought the article attacked the president because he is trained to do
the job he is hired for. She threw it in the wastebasket. One, in reading the article, never
went on beyond about the third paragraph. One didn't think the article was of quality
sufficient to resent it. I took it home to think about it longer and later burned it. One thought
the Bestor article rather a ranting sort of an attack on people in the field of education. Dr.
Richardson frankly conceded that it was one-sided. He volunteered to send out the Reeder
article, an article taking the opposite view but the head of the education department thought
best not to do so. He also called attention to other comments on the Bestor article, some
approving and some disapproving the same. Criticisms of the Bestor article were
characterized by Dr. Richardson as seeming pretty fair. During all of this period the relations
between the department of education and Dr. Richardson's department of biology were just as
fine as the biology department's relations with mathematics, history or any other department.
The education department head recognized that there was considerable controversy and room
for difference of opinion on the question of admission requirements.
It might be noted at this point that the minutes of the A.A.U.P. meeting of November 19,
1952, contained the following: Professor Richardson referred the members to an article by
Reeder in the A.A.U.P. bulletin, autumn, 1951, which presented an opposing view to that of
Professor Bestor entitled Aimlessness in education,' copies of which Professor Richardson
had circulated to various members of the faculty.
The regents introduced in evidence two letters written by the dean of students of Stanford
University. These letters appear to be a sincere, fair and objective attempt to evaluate the
effects of eliminating the subject matter and quality credit requirements for entrance to the
university and to explain the difference in applying the requirement or lack of requirement for
such credits to a state university and to a privately endowed university. To us the main
importance of these letters lies in the repeated acknowledgment that the question is a
controversial one. The dean wrote: There are marked differences of opinion among reputable
educators, and there are marked differences among educational institutions. Again: It is
such a complex matter and has so many ramifications that I hesitate to say anything about it,
since it obviously is not possible to treat exhaustively all the facets of the question.
The dean of the College of Engineering was called as a witness for the regents and testified
that he considered the Bestor article an attack on education and educators and stopped
reading it after he read about the third paragraph. On cross examination, although he said it
was difficult to say that the better background a student had the better work he would do in
the College of Engineering (because some students with brilliant minds come from small
schools and because every student is an individual and his performance at the university must
sometimes measure his intelligence), he nevertheless testified very significantly as follows:
Q. Do I understand your testimony to be that it is immaterial to you what training a high
school student has as a foundation for admission to the College of Engineering? A. You are
entirely incorrect in that assumption. Q. What is your position on that? A. I believe that High
School students should just as far as possible prepare themselves in mathematics, physics,
chemistry, English.
The dean of the College of the Arts and Sciences (the immediate superior of Dr.
Richardson as head of the department of biology) was likewise called by the regents and
testified that his reaction when he read the Bestor article was that he thought it was an
attack upon the president.
department of biology) was likewise called by the regents and testified that his reaction when
he read the Bestor article was that he thought it was an attack upon the president. But as to the
note attached to the article to the effect that it seemed timely, he testified: Well, I thought it
was indicated by Dr. Richardson that it was timely because we were discussing admission
requirements at that time. The president had asked the admissions committee to discuss
admission requirements, and it was, in my opinion, timely because this was a good time to
attack the president. In our view, in the light of the entire record, the italicized words (which
italics we have added) more reasonably indicate the timeliness.
On cross examination the dean was asked: Q. Then you, yourself, are personally
interested in a professional way in the subject of admission requirements, are you not? A. Oh,
certainly. Later he testified: Dr. Richardson had already said to me that he was very much
concerned about the proposals of the president concerning admission. I assume. Q. He told
you he was much concerned about them, is that correct? A. That's right, he said in these
words, I'm worried about the way things are going around here.' Q. And didn't you reply that
you were somewhat concerned too? A. Oh, I may have. It happens to be my business to be
concerned about such things.
The important ultimate facts drawn from the foregoing recitals would appear to be:
1. That at the time Dr. Richardson distributed the Bestor article the question of admission
requirements was an open one. Frank and open discussion by any member of the faculty was
in orderwhether such views were in favor of relaxing the requirements, as advocated by
President Stout, or in favor of continuing in effect the present requirements.
2. The distribution of the Bestor article was an expression of views on this subject.
3. Some eight members of the faculty thought that the article was likewise an attack
upon the University Department of Education and upon President Stout. Dr. Richardson
did not consider it so and used all reasonable efforts to placate persons who did.
the article was likewise an attack upon the University Department of Education and upon
President Stout. Dr. Richardson did not consider it so and used all reasonable efforts to
placate persons who did. He frankly conceded that criticisms of the Bestor article were to
some extent well taken and offered to distribute an article advocating an opposite position.
4. No disruption of the faculty resulted. The persons who thought it an attack on the
president or on the department of education or on professional educators in general took no
action, did not remonstrate with Dr. Richardson, did not report it to President Stout, for the
most part either threw it in the wastebasket or made other casual disposition of it. A copy was
sent by Dr. Richardson to President Stout with a friendly message.
5. Many members of the faculty did not consider the article to be either an attack on the
president or on the department of education. The head of the department of education did not
consider it such after he talked to Dr. Richardson about it. One of the professors who
appeared as a witness for the regents wrote Dr. Richardson a rather commendatory letter
concerning the article.
6. At the time the article was distributed by Dr. Richardson there was in effect no order of
the regents, no order of the president, no rule, no regulation of any kind whatsoever that was
violated. On the contrary there was still in effect the declaration of policy issued by a former
president and approved by the regents approving faculty participation in academic matters.
There was still in effect the president's invitation to present views contrary to his.
7. Two of the main witnesses called by the regents admitted frankly that the question of
admission requirements was of interest to them. It can reasonably be presumed that many
other faculty members would have said the same.
[Headnote 4]
Under these circumstances it is difficult to find support of a charge of insubordination.
From the many definitions found in the cases we may say without greater elaboration that
"insubordination" imports a willful disregard of express or implied directions, or such a
defiant attitude as to be equivalent thereto. "Rebellious," "mutinous," and "disobedient"
are often quoted as definitions or synonyms of "insubordinate."
greater elaboration that insubordination imports a willful disregard of express or implied
directions, or such a defiant attitude as to be equivalent thereto. Rebellious, mutinous,
and disobedient are often quoted as definitions or synonyms of insubordinate.
Refinements that deal with the authority of the superior officer to promulgate the order or
with the reasonableness of the order in question need not be considered.
It is appropriate to note here that the petitioner's opening brief challenged respondents to
show support in the record of the findings of the regents that petitioner had been guilty of
insubordination and had refused to cooperate, or showed support for the order discharging
petitioner for said reasons. In response to this challenge respondents' brief, under the main
title of Evidence in Support of Order, treats the matter under five subheadings. The last
three may be quickly disposed of. Subheading C deals with the question of petitioner's alleged
false accusation that a certain professor had threatened a student with loss of the latter's job
by reason of an article written by him in a university publication. This, as noted above, we
have dismissed as trivial. Even if the item had significance, the hearsay and gossipy nature of
the reported incident leaves it entirely unimpressive. Subheading D refers generally to
petitioner's opposition to relaxing the admission requirements. Subheading E is a general
statement in summary. We are left with subheading A, which covers the distribution of the
Bestor article, and subheading B, which covers petitioner's statement that the president had
made an unfair and unjustified attack on A.A.U.P.
The court is justified in feeling that the respondents were thus presenting their strongest
case in justifying the two findings of insubordination and lack of cooperation, in support of
the conclusion that these constituted cause for removal, and in support of the order
discharging the petitioner from the faculty. With full recognition of the right of the regents to
weigh the evidence, to resolve conflicts in such evidence, to pass upon the credibility of the
witnesses, to commit procedural errors not going to the jurisdiction, and to be the finders
of facts relevant to the issues, the observations made in this opinion inevitably point to
the conclusion that the record presents no substantial support of either the finding of
insubordination or the finding of lack of cooperation and presents no cause for removal.
credibility of the witnesses, to commit procedural errors not going to the jurisdiction, and to
be the finders of facts relevant to the issues, the observations made in this opinion inevitably
point to the conclusion that the record presents no substantial support of either the finding of
insubordination or the finding of lack of cooperation and presents no cause for removal. Its
order of June 9, 1953, removing petitioner as a member of the faculty of the University of
Nevada must therefore be vacated. It is so ordered.
____________
70 Nev. 368, 368 (1954) O'Briant v. State
ROBERT O'BRIANT, Appellant v. THE STATE OF
NEVADA, Respondent.
No. 3796
April 21, 1954. 269 P.2d 276.
Appellant made a motion for an order correcting the record on appeal. The Supreme Court,
per curiam, held that where contention of appellant on motion for order correcting record on
appeal, did not go to accuracy or completeness of record, but to admissibility of certain
evidence, which the record contained, motion would be denied, since the case was not a
proper one for correction of record.
Motion denied.
Harlan L. Heward; Samuelson & Johnson, all of Reno, for Appellant.
W. T. Mathews, Attorney General; George P. Annand, William N. Dunseath, John W.
Barrett, Deputy Attorneys General, all of Carson City; Jack Streeter, District Attorney,
Washoe County; A. D. Jensen, William J. Raggio, Emile J. Gezelin, Assistant District
Attorneys, all of Reno; for Respondent.
70 Nev. 368, 369 (1954) O'Briant v. State
The correction of record, which supreme court may order on appeal, is for purpose of assuring that record
truly discloses what occurred in the trial court.
Where contention of appellant on motion for order correcting record on appeal, did not go to accuracy or
completeness of record, but to admissibility of certain evidence which the record contained, motion would
be denied, since the case was not a proper one for correction of record.
On Motion to Correct Record on Appeal
Per Curiam:
This matter is before us on motion of the appellant for an order correcting the record on
appeal. Appellant contends that certain photographs which form a part of the record are
defective and do not truthfully represent their subjects. They seek an order requiring that the
negatives be delivered up and proper prints made therefrom.
[Headnotes 1, 2]
The defects, if they exist, were in existence at the time the photographs were received in
evidence. The correction of the record which this court may order is for the purpose of
assuring that it truly discloses what occurred in the court below. Appellant's contention goes
not to the accuracy or completeness of the record but to the admissibility of certain evidence
it contains. This is not a proper case for the exercise of our power to correct the record.
Motion denied.
____________
70 Nev. 370, 370 (1954) Bowler v. Leonard
MILTON A. BOWLER and MILTON D. BOWLER, Appellants, v. STELLA B. LEONARD,
Formerly Known as STELLA B. LEONARD BELANGER, Now STELLA B. BRYSON,
Respondent.
Nos. 3734 and 3737
April 29, 1954. 269 P.2d 833.
Appeals from the First Judicial District Court, Churchill County; D. W. Priest, Presiding
Judge.
Action for claim and delivery to recover possession of cattle. The First Judicial District
Court, Churchill County, D. W. Priest, P. J., entered judgment for plaintiff, and made order
appointing a receiver pendente lite, and defendants appealed from the judgment and order.
The Supreme Court, Merrill, J., held that defendants who claimed ownership of cattle made
the subject of claim and delivery action by plaintiff, were not required, in a prior action of
claim and delivery by plaintiff against predecessors in interest of defendants, to intervene or
advise plaintiff of their claims, and their failure to do so did not make the former judgment
binding upon them in subsequent claim and delivery action.
Appeal from judgment reversed and remanded for new trial. Appeal from order
appointing receiver affirmed.
Griswold, Vargas and Bartlett, of Reno, for Appellants.
John S. Sinai, John W. Coulman, and David P. Sinai, all of Reno, for Respondent.
1. Divorce.
Amendment of 1943 to statute pertaining to disposition of property of parties to be made by divorce
court, which did not refer to separate property of the parties as had been done by statute as it previously
existed, did not deprive divorce court of jurisdiction to adjudicate title to the separate property of the
parties before it as an incident of its determination as to the extent of the community. N.C.L.1943-1949
Supp., sec. 9463.
2. Divorce.
Divorce decree determining that wife was owner of herd of cattle as her separate property, which was
followed by purported sale of the herd by her husband to parties who sold to an
intermediate buyer through whom the defendants claimed, was binding upon the
defendants as to ownership, through their privity with husband who made the
wrongful sale.
purported sale of the herd by her husband to parties who sold to an intermediate buyer through whom the
defendants claimed, was binding upon the defendants as to ownership, through their privity with husband
who made the wrongful sale.
3. Divorce.
In action of claim and delivery to recover herd of cattle, adjudicated as plaintiff's separate property in
divorce proceedings, but sold by her former husband to predecessors of defendant buyers, wherein
defendants contended that, regardless of extent of bar of res judicata by divorce decree, plaintiff had lost all
right to assert it by reason of her testimony indicating that she had knowingly misrepresented ownership of
cattle to the divorce court, evidence did not warrant conclusion that plaintiff had misrepresented the
ownership of the cattle as alleged.
4. Divorce.
Decree of divorce which referred to certain separate property of wife as 45 head of milch cows and 15
calves, describing them as on wife's ranch, was sufficient to bind husband and all in privity with him by
virtue of his wrongful sale.
5. Replevin.
In claim and delivery action by which plaintiff sought to recover certain cattle, adjudicated by divorce
decree to be her separate property, but sold by former husband until by intermediate sale they came to rest
in hands of defendants, evidence as to the identity of the cattle was sufficient, irrespective of any
insufficiency of their description in divorce decree.
6. Judgment.
Where plaintiff brought action of claim and delivery to recover cattle, and buyers at wrongful sale by
plaintiff's former husband filed disclaimers, conduct of defendants, who presented brief on appeal as amici
curiae on basis of claim to cattle as subsequent purchasers, in suggesting that judgment against buyers be
reversed, in petitioning for a rehearing, and reminding court of their third-party claim, did not make
adjudication binding on defendants on question whether plaintiff had by her conduct either authorized sale
by her former husband or ratified it, or was estopped to deny his authority.
7. Judgment.
Defendants who claimed ownership of cattle made the subject of claim and delivery action by plaintiff
were not required, in a prior action of claim and delivery by plaintiff against predecessors in interest of
defendants, to intervene or advise plaintiff of their claims, and thus their failure to do so did not make the
former judgment binding upon them in subsequent claim and delivery action.
8. Receivers.
A receiver is an indifferent person between the parties to a cause, appointed by court to
receive and preserve the property or fund in litigation pendente lite when it does not
seem reasonable to court that either party should hold it, and he is not the agent or
representative of either party, but is an officer of the court, exercising his functions
for the common benefit of all parties in interest.
a cause, appointed by court to receive and preserve the property or fund in litigation pendente lite when it
does not seem reasonable to court that either party should hold it, and he is not the agent or representative
of either party, but is an officer of the court, exercising his functions for the common benefit of all parties
in interest.
9. Appeal and Error; Receivers.
The appointment of a receiver pendente lite rests largely in discretion of court to which the application is
made, to be governed by consideration of entire circumstances of the case, and action of court will not be
disturbed upon appeal unless there has been a clear abuse of the discretion so vested in the trial chancellor.
N.C.L.1929, sec. 8749.
10. Receivers.
The discretion vested in a chancellor with respect to the appointment of a receiver pendente lite is not an
absolute or arbitrary one, but is a sound judicial discretion in view of all the circumstances of the case, to
be exercised for the promotion of justice where no other adequate remedy exists. N.C.L.1929, sec. 8749.
11. Receivers.
The appointment of a receiver pendente lite is improper where there exists an adequate remedy at law,
since receivership is generally regarded as a remedy of last resort. N.C.L.1929, sec. 8749.
12. Receivers.
Appointment of a receiver pendente lite in claim and delivery action relative to certain cattle was not an
abuse of discretion, under all the circumstances disclosed by the record, including those of possibility of
insolvency of the parties thereto, loss of subject matter of the litigation or wasting of the proceeds of its
management. N.C.L.1929, sec. 8749.
13. Receivers.
The requirement of a bond in connection with the appointment of a receiver pendente lite for the
protection of the objecting parties in event receivership should prove wrongful or unwarranted lies within
the discretion of the trial court, in absence of any statutory requirement.
14. Receivers.
The duty to deliver the cattle in controversy to a receiver pendente lite results from the appointment of
the receiver and not from independent action or restraint enjoined upon the defendants, and thus the
statutory requirement of a bond as a condition to the issuance of an injunction is not applicable.
N.C.L.1929, sec. 8749.
15. Receivers.
The requirement of a bond of a receiver pendente lite to insure faithful performance of his duties rests
within the discretion of the trial court, and whether an abuse of discretion results from the court's action in
that regard depends upon the circumstances of the particular case.
16. Receivers.
Failure of trial court to require a bond of a receiver pendente lite was not an abuse of discretion, in view
of evidence that receiver was a responsible business man owning real and personal property of substantial
value, and evidence as to receiver's qualifications as to financial responsibility and integrity. N.C.L.1929,
sec. 8749.
17. Receivers.
The appointment of a receiver pendente lite is a harsh and extreme remedy which should be used
sparingly and only when the securing of ultimate justice appears to require it.
OPINION
By the Court Merrill, J.:
This is the fifth occasion on which we have been confronted with the troubles of this dairy
herd in its patient search for home and master.* Notwithstanding a sympathetic disposition to
bestow upon these creatures in their advancing years a well-earned freedom from litigious
strife, we are compelled by this decision to sentence them to further controversy.
This is an action for claim and delivery brought by respondent as plaintiff to recover
possession of the herd. Separate appeals have been taken: (1) from judgment; (2) from order
of the trial court appointing a receiver. The appeals were consolidated for argument before
this court and this opinion will dispose of both matters.
Case No. 3737
This appeal is from judgment of the trial court determining title to the herd to be in the
respondent, Stella Leonard, and awarding her damages for wrongful detention. The
determination of ownership was based upon earlier adjudications and, upon this basis, was
taken from the jury by the trial judge. Appellants assert error in this respect. The court relied
upon two distinct earlier
____________________
* Connected cases: Bowler v. Vannoy, 67 Nev. 80, 215 P.2d 248, 216 P.2d 274; Leonard v. Belanger, 67
Nev. 577, 222 P.2d 193; Belanger v. Leonard, 68 Nev. 258, 229 P.2d 153; Bowler v. Dist. Ct., 68 Nev. 445,
adjudications.234 P.2d 593.
adjudications. Appellants contend that neither was binding upon them. Before examining the
prior litigations and the specific points of law involved in appellants' contentions, a general
factual panorama may be helpful.
On June 25, 1948, respondent commenced suit for divorce against her then husband,
David Belanger. In that suit she claimed ownership of the present herd as her separate
property. On September 14, 1948, a decree of divorce was granted her which declared the
herd to be her separate property.
The pendency of this suit was an eventful period for the herd. On July 31 David Belanger
purported to sell the herd to one Childers. He then pocketed the proceeds, left town, and has
not been heard from since. On August 2 Childers sold to one Vrenon. On August 5 Vrenon
sold to appellants.
Upon securing her decree the following month, respondent went in search of her property.
She discovered the first two transactions but somehow the third escaped her. On November 4,
1948, she commenced an action in claim and delivery against Childers and Vrenon. No one
sought to disabuse her of her innocent assumption that she was suing the proper parties.
Indeed, Childers and Vrenon behaved in every respect as owners might be expected to behave
and the action was vigorously contested, as we shall see; even to the point of appeal to this
court. On October 19, 1949, respondent secured judgment. Once again she went in search of
her property only to learn she had fallen short in its pursuit. On December 12, 1950, this
action was brought against appellants.
We turn first to an examination of the divorce action and decree. The court below ruled
that the decree established ownership of the herd to be in respondent as of June 25, 1948, the
date upon which that suit was commenced. The court further ruled that that decree was
binding upon appellants through privity with David Belanger.
Belanger. In our view the court committed no error in this respect.
By appellants' first contention with reference to this decree they make collateral attack
upon it. They contend that the divorce court was without jurisdiction to take any effective
action respecting respondent's separate property or make any determination with respect
thereto.
[Headnote 1]
Sec. 9463, N.C.L.1929, Supp. 1943-1949, provides that in granting a divorce the court
shall make such disposition of the community property of the parties as shall appear just and
equitable * * *. The statute prior to 1943 directed disposition of both community and
separate property of the parties. Appellants contend that by the 1943 amendment the
legislature deliberately took away from the courts all jurisdiction over separate property.
This, we feel, is putting the proposition too broadly.
It is clear that since 1943 the divorce court may not apportion separate property between
the parties in accordance with its conception of the equities of the situation. The court here
did no such thing, however. It left the separate property where it found it. If the court is to
dispose of the community as the statute requires it to do, it is obvious that it must have power
to ascertain the extent of the community. It must, then, be recognized to have power to
examine into the nature of the property rights of the parties and determine the character of
such rights in the light of the marital relationship. It is quite possible that a court in so acting
may overstep the bounds of proper inquiry and deal with disputes having no relation to rights
arising from the marital relationship; disputes foreign to the divorce court's limited field of
inquiry. In such a case, however, (the court otherwise having jurisdiction over the parties and
the property), the remedy is by direct attack. Reed v. Reed, 65 Neb. 849, 91 N.W. 857, 70
Neb. 779, 98 N.W.
73; Taylor v. Taylor, 54 Ore. 560, 103 P. 524; cf. Lemp v. Lemp, 62 Nev. 91, 141 P.2d 212,
148 A.L.R. 1104.
Having jurisdiction over the person of David Belanger and the property in question, it
cannot be said that the divorce court acted without jurisdiction in making the determination in
question. As against David Belanger it has, then, conclusively been determined that as of
June 25, 1948, the herd was the property of respondent.
[Headnote 2]
Appellants next contend that although the decree may be held binding upon Belanger, it is
not binding upon them since they were not parties to the suit. They were, however, in privity
with Belanger, claiming under him by virtue of a transfer by him of his rights subsequent to
commencement of the divorce suit. They are consequently bound to the same extent. Ahlers
v. Thomas, 24 Nev. 407, 56 P. 93; Bank of Italy v. Burns, 39 Nev. 326, 334, 156 P. 932, 159
P. 863; See 50 C.J.S. 355 et seq. (Judgments, sec. 810.)
[Headnote 3]
Appellants next contend that regardless of the extent of the bar by res judicata, respondent
has lost all right to assert it. This contention is based upon certain testimony given by
respondent under cross-examination during the trial of her action against Childers and
Vrenon. Appellants construe this testimony as an admission that certain of the cattle awarded
her as her separate property had in fact been owned by David Belanger and had not been her
separate property at the time of commencement of the divorce action; that she had knowingly
misrepresented the ownership of the cattle to the divorce court. Respondent disputes
appellants' position upon the law: that, assuming appellants' construction of the testimony to
be correct, the result would be a loss of right to rely upon the bar of res judicata. We need not
decide this question. In our view appellants' construction does not necessarily follow from the
testimony involved.
The testimony has to do with the purchase of certain cows. Respondent testified as
follows: Q. Who purchased those cows? A. Well, I was in the hospital at the time and Mr.
Belanger said he could get them from Joe Cliff but he didn't have to pay anything on them;
that Mr. Chism would take out $65 a month from the milk bill, plus interest. * * * Q. And
then as I understand you, Mrs. Belanger, in so far as those cows are concerned, Mr. Belanger
bought those in his name, is that correct? A. Yes. Q. He assumed the responsibility for those
cows? A. Yes.
We cannot say that this testimony without further detail clearly reflects the state of title.
Certainly Belanger did not pay for the cows out of his own money. Apparently payment was
to come from proceeds of milk produced by the cows so purchased plus the cows already
owned by respondent. Belanger apparently felt obligated to consult with respondent on the
matter before proceeding. The record shows that the cows were not segregated from
respondent's but were commingled to form a single herd. We cannot say that under the facts
disclosed respondent could not in good faith have believed that the cows so purchased were
hers, either in law or in equity, and formed a part of her herd.
[Headnote 4]
Appellants next contend that the decree is not sufficiently definite in its description of the
herd to enable it to stand as res judicata. The decree referred to 45 head of milch cows and
15 calves, describing them as on respondent's ranch. We regard this as ample to bind David
Belanger and all in privity with him.
[Headnote 5]
Appellants contend that even though such description may have been sufficient for
purposes of the divorce decree, it can hardly serve the purposes of claim and delivery, for
which purposes the trial court has utilized it. The court did not, however, rely upon the
divorce decree alone for purposes of identity. There is ample testimony in the record to the
effect that the herd with which we are here concerned was the same herd {or a
substantial portion of it) with which the divorce decree dealt.
testimony in the record to the effect that the herd with which we are here concerned was the
same herd (or a substantial portion of it) with which the divorce decree dealt. Accordingly we
feel there is no merit in this contention.
The herd as described in the complaint in this action was comprised of 41 cows and 2
bulls. Appellants' final contention with reference to the divorce decree is that it cannot
constitute any adjudication as to title to the two bulls, since the decree dealt with cows and
calves but no bulls. Respondent points to testimony to the effect that the bulls, at the time the
divorce suit was brought, were bull calves and were counted among the calves covered by the
decree. Appellants rather scornfully suggest that the transformation from calves to bulls must
have occurred rather suddenly. We do not regard this as necessarily so. Certainly there comes
a time in the life of every bull calf when it becomes a bull. We cannot say, as matter of law,
that this significant moment had not been reached during the brief but hectic period between
commencement of the divorce suit and the sale to appellants.
We conclude that the trial court did not err in ruling the divorce decree res judicata as to
appellants. They may not, then, dispute the fact that on June 25, 1948, the herd involved in
this action was the separate property of respondent.
This does not dispose of the problem, however. Childers, Vrenon and appellants all
contend that, even accepting such ownership, respondent by her conduct either authorized
Belanger's sale to Childers, or ratified it, or is estopped to deny such authority. These points
were asserted by Childers and Vrenon in respondent's action against them for claim and
delivery. By its judgment against them in that action the court decided these matters adversely
to them. The remaining question then, is whether, assuming them to be bound by that
determination, appellants likewise are bound. The trial court below ruled that they were.
Appellants were thus precluded from presenting to the jury evidence in support of their
contentions.
thus precluded from presenting to the jury evidence in support of their contentions.
If they be bound it is not through privity with Childers and Vrenon since the sale to
appellants occurred one month prior to commencement of that action. Upon two separate
grounds, respondent supports the ruling of the trial court.
First: respondent contends and the trial court held that conduct of appellants' counsel in
their behalf in connection with the action against Childers and Vrenon has bound appellants
by the judgment in that action.
Following that judgment an appeal was taken therefrom by Childers and Vrenon to this
court. Counsel for the Bowlers (appellants in the present proceeding) then petitioned this
court for an order permitting them as amici curiae to file briefs and present oral argument. In
their petition they frankly disclosed their professional representation of the Bowlers and the
Bowlers' interest in the outcome. Notwithstanding such interest an order was entered by this
court appointing them amici curiae.
Pending the appeal, proceedings supplemental to execution were had in the trial court,
bringing to light the Bowlers' claim of ownership and a disclaimer of ownership by Childers
and Vrenon. Thereupon respondent moved this court for a dismissal of the appeal upon the
ground that Childers and Vrenon by their disclaimers had demonstrated that they had no
appealable interest.
Counsel for the Bowlers as amici curiae then filed a memorandum in which they suggested
the proper course to be a reversal of the judgment of the lower court, a course frequently
followed by appellate courts when the appeal is dismissed upon the ground that the matter has
become moot. This court dismissed the appeal but did not reverse the judgment. Leonard v.
Belanger, 67 Nev. 577, 222 P.2d 193. The opinion in that matter as originally filed,
erroneously attributed to amici curiae certain citations which in fact had been submitted by
Childers and Vrenon. The opinion also remarked that the Bowlers had avoided any
opportunity to submit their title to judicial determination.
Bowlers had avoided any opportunity to submit their title to judicial determination. Counsel
for Bowlers as amici curiae then petitioned this court for a rehearing: (1) to correct the court's
error in reference to the citations; (2) reminding the court that the Bowlers had offered their
title for adjudication when, following execution upon the cattle, they had filed a third-party
claim. This court corrected the errors relating to the citations but disregarded the reference to
the Bowlers' third-party claim. Rehearing was denied.
It is for this conduct of counsel as amici curiae that respondent contends the judgment
against Childers and Vrenon should bind the Bowlers. She contends that while counsel were
ostensibly acting as amici curiae, they were actually proceeding in active protection of the
Bowlers' interests; that they had exceeded the duties of the office of amicus curiae and had
misused the office and accordingly had by their action bound those they were in fact
representing. She emphasizes that counsel were not satisfied to accept the case as they found
it but sought affirmative action by this court.
Much authority is cited by respondent in support of her position. In our view the decisions
are distinguishable. In the main they deal with cases where counsel without court approval
had injected themselves into a proceeding, designating themselves as amici curiae in so
acting. In this case this court, knowing of counsel's interest, had nevertheless appointed them
to office. While, under such circumstances, it may yet be possible for counsel by their
conduct so to overstep the functions and duties of their office as to bind their clients, the court
should not, we feel, be quick to accomplish this result. The seeking of affirmative action by
amici curiae is not necessarily improper. See: Haley v. Eureka County Bank, 21 Nev. 127, 26
P. 64, 12 L.R.A. 815; Morrow v. Morrow, 62 Nev. 492, 156 P.2d 827. In this case the
affirmative action suggested of the court by counsel might well be considered as consistent
with disinterested assistance to the court in protecting against inadvertent error of procedure
or inaccuracy of statement.
inadvertent error of procedure or inaccuracy of statement. Certainly the conduct of counsel
was not of such a character as to affront the court. The office of amicus curiae is of too useful
a character to this court to justify us in converting it into a trap for those whom we have with
full knowledge invited to assist us.
[Headnote 6]
We conclude that the trial court was in error in holding appellants bound by the earlier
adjudication through the conduct of their counsel before this court as amici curiae.
Second: respondent contends that since, with knowledge of the action against Childers and
Vrenon, appellants had sat idly by and permitted it to go to judgment without intervention,
they are estopped to deny its binding effect. Respondent asserts the proposition that it is
incumbent upon one having knowledge of judicial proceedings concerning property which he
claims, to take steps to protect his interest; that he cannot, with knowledge of the suit, fail to
assert his claim, thereby misleading the plaintiff into prosecuting the suit to judgment. This
proposition we must reject.
In Chase National Bank v. City of Norwalk, 291 U.S. 431, 441, 78 L.Ed. 894, 901, 54
S.Ct. 475, it is stated: The law does not impose upon any person absolutely entitled to a
hearing the burden of voluntary intervention in a suit to which he is a stranger. * * * Unless
duly summoned to appear in a legal proceeding, a person not a privy may rest assured that a
judgment recovered therein will not affect his legal rights.
[Headnote 7]
To hold otherwise would, we feel, for all practical purposes be to require every property
owner fully to advise himself as to the nature of all lawsuits brought within the jurisdiction in
which his property is located, lest they relate to his property and he be charged with some
degree of notice or knowledge thereof. Such a burden, of course, would be intolerable.
The case of respondent, in her repeated efforts to secure an effective determination of
her rights, is certainly one to create sympathy.
secure an effective determination of her rights, is certainly one to create sympathy. Yet even
here the rule cannot be said to be unduly harsh. Respondent could have informed herself.
Even under our code of civil procedure which preceded N.R.C.P., procedures were available
which, if utilized, could have resulted in the locating of the herd and discovery of the claim to
it asserted by appellants. In her investigations she simply stopped too soon and assumed too
much. Appellants, regardless of the extent to which they may or may not have informed
themselves as to the nature of her action against Childers and Vrenon, cannot be said to have
been under any legal duty to advise respondent of their claims or to intervene in the action.
We conclude that the trial court erred in holding the judgment against Childers and Vrenon
to be binding as res judicata upon appellants and in taking from them their right to present to
the jury the defenses which were there adjudicated.
Reversed with costs and remanded for new trial.
Case No. 3734
This appeal challenges the propriety of the trial court's order, upon the petition of
respondent, appointing a receiver to take over possession and management of the herd, title to
which is in dispute in this action. We have already refused to review the matter upon petition
for writ of prohibition. Bowler v. District Court, 68 Nev. 445, 234 P.2d 593. The merits of the
controversy are now squarely presented by this appeal from order denying appellants' motion
to terminate the receivership.
[Headnote 8]
With reference to the nature of the office of receiver it is stated in High on Receivers, 4th
ed., p. 2, sec. 1: A receiver is an indifferent person between the parties to a cause, appointed
by the court to receive and preserve the property or fund in litigation pendente lite, when it
does not seem reasonable to the court that either party should hold it.
party should hold it. He is not the agent or representative of either party to the action, but is
uniformly regarded as an officer of the court, exercising his functions in the interest of neither
plaintiff nor defendant, but for the common benefit of all parties in interest. He should be a
person wholly impartial and indifferent to all parties in interest. Being an officer of the court,
the fund or property intrusted to his care is regarded as being in custodia legis for the benefit
of whoever may finally establish title thereto, the court itself having the care of the property
by its receiver, who is merely its creature or officer, having no powers other than those
conferred upon him by the order of his appointment, or such as are derived from the
established practice of courts of equity.
[Headnotes 9, 10]
By the provisions of sec. 8749, N.C.L.1929, a receiver may be appointed by the court in
which an action is pending in all cases where receivers have heretofore been appointed by the
usages of the courts of equity. With reference to the discretionary power thus placed in the
hands of the trial court, it is stated in High on Receivers, 4th ed., p. 12, sec. 7: The
appointment of a receiver pendente lite, like the granting of an interlocutory injunction, is to a
considerable extent a matter resting in the discretion of the court to which the application is
made, to be governed by a consideration of the entire circumstances of the case. And since
the appointment of a receiver is thus a discretionary measure, the action of the lower court * *
* will not be disturbed upon appeal unless there has been a clear abuse. But the discretion
thus vested in the chancellor * * * is not an absolute or arbitrary one but it is a sound judicial
discretion in view of all the circumstances of the case, to be exercised for the promotion of
justice where no other adequate remedy exists.
Upon three specific grounds appellants contend that the trial court acted in excess of
jurisdiction or, in the alternative, in abuse of discretion.
[Headnote 11]
First, it is contended that this is not a proper case for receivership since an adequate
remedy at law exists. If this be true the appointment was improper. Nenzel v. District Court,
49 Nev. 145, 241 P. 317, 43 A.L.R. 1331. Receivership is generally regarded as a remedy of
last resort. 75 C.J.S. 668 (Receivers, sec. 9); 45 Am.Jur. 28 (Receivers, sec. 26).
Appellants contend that the provisional remedy of claim and delivery would have provided
adequate relief had respondent chosen to avail herself of it by posting bond. The record shows
that respondent had claimed lack of financial ability to post bond in the amount required by
statute (twice the value of the property sought) and that the court had taken this fact into
consideration in determining that no adequate alternative remedy existed. Appellants assert
that this does not render the remedy unavailable; that to hold otherwise would be improperly
to permit receivership to be utilized as an escape from the protective features of claim and
delivery.
To determine the question of adequacy of remedy we must first ascertain the nature of the
situation sought to be remedied by the trial court. If that situation be simply that respondent as
claimant was being deprived of the possession of property which she claimed, appellants'
contentions would appear to have merit. The record amply demonstrates, however, that this
was not the situation which gave the court concern; that the inability of respondent to post
bond for claim and delivery was not the controlling factor.
In its written decision upon respondent's motion for appointment of a receiver, the court
found danger of insolvency upon both sides and a consequent inability or probable inability
of both or either to respond financially to a final adverse order of the court, requiring either
party to account and pay over, through the court, the rents, issues and profits of the herd to the
time of final judgment."
final judgment. The court also was reluctant to leave the herd to the management of either
party, stating in this regard that from a study of the records and files of the prolonged
controversy of the parties hereto, through all of the actions, including the supreme court
proceedings, and from an observation of the parties and counsel in court, it is apparent to the
court that bitterness exists between the parties to the litigation, which would reflect upon the
quality of the service of either of the parties. In holding a receivership desirable the court
also referred to the very nature of the property and the possibility of its disappearance
(wholly or partially) during the litigation, and the admitted losses so far. It held that from
the standpoint of conservation, preservation and administration, to the end that the final
judgment of the court be fully effectual, it is highly desirable that a receiver be appointed.
From its opinion filed upon motion subsequently made by appellants to vacate the
receivership it is apparent that the court had other matters in mind as well. As reflecting upon
the probable interest of respondent, it bore in mind the fact that she had already prevailed in
claim and delivery against Childers and Vrenon. It took note of an adamant attitude about
the right to sell or otherwise dispose of the cattle on the part of the defendants. It took note
of the fact that while respondent sought 41 cows and 2 bulls, the receiver had been able to
take possession only of 16 cows, stating, Looking at it in retrospect, who can doubt but that
[at the time of the appointment of the receiver] there was danger of the herd being lost,
removed, or materially injured.'
The court, then, was not concerned with giving to respondent the right to immediate
possession of the herd. It was concerned lest any judgment it ultimately might render be
empty of relief through loss of the subject matter or wasting of the proceeds of its
management and financial inability of the unsuccessful party to respond in damages. It clearly
would have been as reluctant to place the herd in respondent's possession {in absence of
security for its return) as to leave it with appellants.
reluctant to place the herd in respondent's possession (in absence of security for its return) as
to leave it with appellants.
[Headnote 12]
From our examination of the record we cannot say that the considerations which moved
the court were without foundation. Under the circumstances we conclude that an adequate
alternative remedy has not been shown to exist.
Appellants' second contention is that the court acted in excess of jurisdiction or in abuse of
discretion in failing to require respondent to post bond for the protection of appellants in the
event the receivership should prove wrongful or unwarranted.
[Headnote 13]
No such bond is required by statute. Under such circumstances it is the general rule that
the requirement of such a bond lies within the discretion of the trial court. See: 75 C.J.S. 717
(Receivers, sec. 62).
Appellants state that they have been deprived of possession by the receivership as
effectively as they would have been by the provisional remedy of claim and delivery, in
which event a bond would have been required not only for return of the property, but for
damages as well. The fact remains, however, that the legislature has not seen fit to require a
plaintiff's bond in receiverships. To acknowledge appellants' contention would be to require a
plaintiff's bond in all cases and remove the question from the discretion of the trial court. The
wisdom of such a rule is for legislative rather than judicial consideration.
[Headnote 14]
Appellants point out that the order appointing the receiver in this case directs appellants to
deliver up the herd to the receiver. This, they contend, amounts to an injunction and the
statutory requirement of bond as a condition to issuance of an injunction should apply. The
duty to deliver, however, results from the appointment of the receiver and not from
independent action or restraint enjoined upon the defendants.
of the receiver and not from independent action or restraint enjoined upon the defendants. It is
an essential foundation of the receivership itself. First Union Trust & Savings Bank v.
Consumers' Co., 7 Cir., 63 Fed.2d 273. See: State v. District Court, 48 Nev. 198, 228 P. 617.
Again, to acknowledge appellants' contention would be to require a plaintiff's bond in all
cases. Furthermore it would be tantamount to holding that any court order from which an
injunction against interference or disobedience may be implied would be subject to the
requirement of injunction bond, whether specifically required by statute or not. Clearly such
is not the law. Swift v. Black Panther Oil & Gas Co., 8 Cir., 244 Fed. 20; Phoenix Foundry &
Machine Co. v. North River Construction Co., 6 N.Y. Civ.Proc. 106, 33 Hun. 156; See: 32
C.J. 311 (Injunctions, sec. 505).
Appellants contend that this court in Shelton v. District Court, 64 Nev. 487, 185 P.2d 320,
has already held in effect that receiverships in every case are subject to injunction bond. We
do not so construe the holding of that case. The principal holding was to the effect that the
court was without jurisdiction to appoint the receiver through defective notice. In referring to
the necessity of injunction bond, we feel that the court was viewing the order in its potential
capacity as an injunction independent of the receivership which the court had held invalid.
[Headnote 15]
Appellants' third contention is that the court acted in excess of jurisdiction or abuse of
discretion in failing to require the receiver to post bond for faithful performance of his duties.
They assert that without such bond there is no security for the return of the property taken
from their possession.
Again, the statute contains no requirement of such bond, and its requirement, accordingly,
lies within the discretion of the trial court. Johnston v. DeLay, 63 Nev. 1, 158 P.2d 547, 161
P.2d 350; See: 75 C.J.S. 717 {Receivers, sec.
(Receivers, sec. 62). Again, we may not invade the legislative field to eliminate that
discretionary power. Whether an abuse of discretion results from the court's action depends,
then, upon the circumstances of the particular case.
[Headnote 16]
The record shows that in appointing the receiver the court noted that he was a responsible
businessman owning real and personal property in the Town of Fernley, State of Nevada, of
substantial value, so that said Receiver qualifies both in respect to financial responsibility as
well as integrity. The attention of the court was thus drawn to the very considerations which
properly should bear upon the question of necessity for bond, and determinations were made
upon them. Accepting those determinations, we cannot say failure to require a receiver's bond
was an abuse of discretion.
[Headnote 17]
We are far from unmindful of the harsh nature of this extreme remedy and of the principle
which demands that it be used sparingly and only when the securing of ultimate justice
appears to require it. These, as the record demonstrates, are propositions which at least twice
were presented to the trial court and received the most careful consideration of that tribunal.
In the absence of any showing of abuse of discretion we must respect its judgment that, under
the circumstances of this most unusual case, the securing of ultimate justice (which, after
years of litigation, cannot yet be said to have approached realization), demands the extreme
remedy of receivership.
Affirmed with costs.
Eather, C. J. and Badt, J., concur.
On Petition for Rehearing, No. 3737
August 3, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 389, 389 (1954) Hill v. Thomas
PATSY DELL HILL, a Minor, by JOHN HILL, Guardian Ad Litem, DELIA HILL and JOHN
HILL, Appellants, v. WILLIAM HENRY THOMAS, ROBERT EMMET LYDON, and THE
STATE OF NEVADA, Respondents.
No. 3781
April 30, 1954. 270 P.2d 179.
Appeal from the First Judicial District Court, Ormsby County; Frank B. Gregory, Judge.
Action against sheriff and deputy sheriff and State of Nevada as surety of their official
bonds for injuries sustained by plaintiffs when deputy sheriff discharged a shotgun at
plaintiffs' automobile while maintaining road block. The District Court, Ormsby County,
Frank B. Gregory, J., sustained State's demurrer and dismissed State as a party defendant and
plaintiffs appealed. The Supreme Court, Eather, C. J., held that the State Bond Trust Fund
Act did not limit liability of bond trust fund to misappropriations, defalcations and
embezzlement of public funds by public officers but included tortious misconduct of a peace
officer in the performance of his official duties.
Reversed and remanded for further proceedings.
Springmeyer & Thompson, of Reno, for Appellants.
W. T. Mathews, Attorney General, Geo. P. Annand, Wm. N. Dunseath, and John W.
Barrett, Deputy Attorneys General, of Carson City, for Respondent State of Nevada.
Wm. J. Crowell, District Attorney, of Tonopah, for Respondents William Henry Thomas
and Robert Emmet Lydon.
1. Sheriffs and Constables.
State Bond Trust Fund Act does not limit liability of bond trust fund to misappropriations, defalcations,
and embezzlement of public funds by public officers but includes tortious misconduct of a sheriff and
deputy sheriff in the performance of their official duties for which state is liable on bond
conditioned for faithful performance of their duties.
70 Nev. 389, 390 (1954) Hill v. Thomas
of their official duties for which state is liable on bond conditioned for faithful performance of their duties.
N.C.L.1929, secs. 2146, 4848-4850, 8475; N.C.L.1931-1941 Supp., secs. 2145, 4915.21 et seq., 4915.23,
4915.28.
2. States.
The state is the sponsor of the integrity of a state peace officer while such officer acts in such capacity.
3. States.
Failure of Bond Trust Fund Act to indicate any procedure for recovery of losses resulting to private
persons from defalcations, misappropriations or other wrongful act on the part of public officials indicated
that prior statute authorizing suit on official bonds against surety remained available and constituted an
implied consent by the state to suit and a waiver of its sovereign immunity. N.C.L.1931-1941 Supp., secs.
4915.21 et seq., 4915.27; Const. art. 4, sec. 22; N.C.L.1929, sec. 4892; St.1937, c. 193 as amended
St.1943, c. 128.
4. States.
The procedure established by the State Bond Trust Fund Act for making claims on official bonds is
special and limited to a class of cases involving embezzlements, defalcations and misappropriations of
public funds by public officials. N.C.L.1931-1941 Supp., secs. 4915.21 et seq., 4915.27; Const. art. 4,
sec. 22; N.C.L.1929, sec. 4892.
5. States.
A state, which in the eye of the law is recognized as a sovereign, cannot without its consent be sued by a
citizen.
OPINION
This case comes to this court on appeal from two orders entered by the First judicial
district court on September 9, 1953, as follows:
(1) Sustaining the demurrer filed by defendant State of Nevada, without leave to amend,
and dismissing the State of Nevada as a defendant;
(2) Ordering the venue and place of trial of the action to be transferred from the First
judicial district court of the State of Nevada, in and for the county of Ormsby, to the Fifth
judicial district court of the State of Nevada, in and for the county of Nye.
There is no dispute as to the issues presented in the district court. The material parts of the
complaint which we consider necessary to a determination of the case are as follows:
70 Nev. 389, 391 (1954) Hill v. Thomas
which we consider necessary to a determination of the case are as follows:
The action was commenced December 11, 1952. The complaint seeks damages against
William Henry Thomas, sheriff of Nye County, and Robert Emmet Lydon, deputy sheriff of
Nye County, and constable of Tonopah Township, and the State of Nevada as surety on the
official bonds of said officers. The causes of action arise out of the discharge of a shotgun by
defendant Lydon, while acting in his official capacity as a peace officer in maintaining a road
block south of Tonopah, Nevada, on August 17, 1952. It alleges that plaintiffs were wounded
and otherwise suffered damages as a result of a discharge of a shotgun at and towards
plaintiffs' automobile and the occupants thereof, damaging said automobile and wounding
plaintiff's wife, Delia Hill, and plaintiff's daughter, Patsy Dell Hill; that as a direct and
proximate consequence of defendant's conduct, as aforesaid, plaintiff John Hill suffered
severe and continuing anguish and distress and incurred expenses for the repair of his
automobile, and incurred expenses for the hospitalization, care and treatment of his wife and
daughter, and for other losses.
The State of Nevada, joined as a party defendant in the district court, demurred to the
complaint upon the following grounds:
(1) That the complaint did not state facts sufficient to constitute a cause of action against
the defendant state in either cause of action therein alleged.
(2) That the court had no jurisdiction of the defendant state.
(3) That there was a misjoinder of the State of Nevada as party defendant.
The contention of the state in support of its demurrer was, briefly, that the court had no
jurisdiction of the state in the action for the reason that the state had not consented to be sued
in the manner and form set forth in the complaint, even though it was surety upon the bonds
of the sheriff and deputy sheriff of Nye County and the constable of Tonopah Township
under the provisions of the state bond trust fund act.
70 Nev. 389, 392 (1954) Hill v. Thomas
bonds of the sheriff and deputy sheriff of Nye County and the constable of Tonopah
Township under the provisions of the state bond trust fund act.
This demurrer was sustained by the lower court. The judge in a written decision discloses
that his reason was twofold: (1) That the official bonds of defendant officers written by the
State of Nevada as surety, are limited to indemnify against losses through defalcation,
misappropriation of public funds and matters of related character; (2) that the state, as
sovereign, not having consented to be sued, is not amenable to suit in this action.
The appellants appealed from the order and decision of the lower court wherein it
dismissed the state as a party defendant, and have alleged two grounds in their opening brief,
alleging the following errors: (1) The trial court erred in sustaining the demurrer filed by the
State of Nevada to plaintiffs' complaint and (2) the legislature has expressly consented to suit
against the State of Nevada as surety on all official bonds.
Appellants contend that the liability of the State of Nevada as surety on official bonds is
coextensive with that of a private surety on such bonds.
Nevada law requires a sheriff, before entering upon the discharge of his duties to give a
bond conditioned for the faithful performance of the duties of his office. (N.C.L. 2145,
1931-1941 Supp.) A similar bond is required of a constable. (N.C.L. 8475, 1929, Vol. 4.)
The condition of the bond of respondent Thomas is:
Now Therefore, If the said William Henry Thomas shall faithfully perform and discharge
the duties of his office of Sheriff and render a true account of all moneys, accounts and
property of any kind that shall come into his hands as such officer during the period
beginning 1st Monday in January, 1951, and ending 1st Monday in January, 1955, and pay
over and deliver the same according to law, then the above obligation shall be null and void,
otherwise to be in full force and effect, and payment of any loss by the surety shall be made
out of the State Bond Trust Fund.
70 Nev. 389, 393 (1954) Hill v. Thomas
This bond is provided by the State of Nevada pursuant to Chapter 193, Statutes of
Nevada 1937, as amended by Chapter 128, Statutes of Nevada 1943, and all the terms,
conditions and provisions of said chapters shall be deemed to be incorporated in and made a
part of said bond as fully as if set forth in full herein, and the State of Nevada is surety hereon
upon the express condition that, as such surety, it shall also be liable under the provisions
hereof for the loss of any public or other funds that may be covered by this bond, occurring
through or resulting from misappropriation and/or defalcation in breach of trust and/or
misconduct; provided, this bond shall not apply to losses resulting from acts of God or nature,
fire, burglary, holdup, and/or other cause over which the said principal exercised no control or
influence and was free from participation therein, and said principal exercised reasonable
diligence in safeguarding the funds and securities committed to and in his (or her) care and
custody.
Attached as Exhibit B to plaintiffs' complaint is a similar bond executed by Robert
Emmet Lydon, constable of Tonapah Township, county of Nye, State of Nevada, as principal,
and the State of Nevada as surety.
Further the law expressly renders the sheriff liable for the acts of his deputies. Sec. 2146,
N.C.L.1929 provides: * * * and the sheriff shall be responsible for all the acts of his deputy
or deputies, and may remove such deputy or deputies at pleasure * * *. And, an Act
authorizing ministerial officers to appoint deputies, Sec. 4848-50, N.C.L. 1929, particularly
4849, provides:
Said officers shall be responsible for the compensation of said deputies, and shall be
responsible on their official bonds for all official malfeasance or nonfeasance of the same.
Bonds for the faithful performance of their official duties may be required of said deputies by
said principals.
The matter before this court and with which we are here concerned is the bond trust fund
act of 1937 (N.C.L. 4915.21 et seq. 1931-1941 Supp.), which, together with its predecessor
acts commencing in 1933, placed the State of Nevada in the bonding business insofar as
the surety bonds of public officials are concerned.
70 Nev. 389, 394 (1954) Hill v. Thomas
with its predecessor acts commencing in 1933, placed the State of Nevada in the bonding
business insofar as the surety bonds of public officials are concerned. An interpretation of the
bond trust fund act is essential to a decision in this case because of the conclusion reached by
the trial court that the function of the act, and bonds written thereunder, is to safeguard the
state and political subdivisions in financial matters only, that is to say, losses arising
through embezzlements, defalcations and the like. In the case now before this court, plaintiffs
seek to enforce liability on the bonds by reason of the tortious misconduct and malfeasance of
the bonded officers. The statute is entitled An Act to provide against losses to the state and
its respective counties, townships, incorporated cities and irrigation districts through
defalcation, misappropriation of funds or other wrongful acts on the part of officials; to
provide for the issuance of surety bonds for state, county, township, city and irrigation district
officials, establishing a fund therefor, and other matters relating thereto; and to repeal all acts
and parts of acts in conflict therewith.
Section 1, N.C.L.1931-1941 Supp., 4915.21, described the purpose of the fund as to secure
against loss through defalcation, misappropriation of public funds or other wrongful acts of
state or county officials. Section 3 of the act, N.C.L. 4915.23, requires all public officials
who are required by law to furnish bond to apply for a bond to the state board of examiners,
and provides: This bond shall have full force and effect as a surety and shall serve all
purposes of bonds required by statutes from state or county officials * * *. Section 8 of the
act, N.C.L. 4915.28, states: Surety bonds issued under the provisions of this act shall be
understood to be conditioned to faithful performance of duty, and to assurance against losses
through misappropriation or defalcation in breach of trust or misconduct.
In view of the foregoing provisions can it be fairly concluded that only financial losses
arising through embezzlements and similar wrongdoings are intended to be indemnified by
the bonds?
70 Nev. 389, 395 (1954) Hill v. Thomas
embezzlements and similar wrongdoings are intended to be indemnified by the bonds?
In its answering brief the State of Nevada does not dispute appellants' contention that the
acts complained of, as alleged in the complaint, would have constituted breaches of the
conditions of the official bonds given by the sheriff and his deputy and would have subjected
the surety on such bonds to liability to appellants if the bonds had been written by a private
surety company. The whole of the brief of the State of Nevada is devoted to the contentions
that the state bond trust fund act should be construed to limit the liability of the bond trust
fund to misappropriations, defalcations and embezzlements of public funds by public officers,
and that the State of Nevada has not waived its immunity.
[Headnotes 1, 2]
We are of the opinion that if a bond written by a private surety conditioned for the faithful
performance of the duties of a peace officer would be liable under the circumstances related
in plaintiffs' complaint, then the State of Nevada is similarly liable as surety on bonds written
under the bond trust fund act of 1937. Otherwise, we feel, such bonds would fail to serve all
purposes of bonds required by statute. To hold otherwise would be to assume an intent on
the part of the legislature (contrary to the language of sec. 4915.23) to provide a state bond
which does not afford the same degree of surety coverage as other types of surety bonds. The
responsibility of the State of Nevada as surety for the sheriff and constable, the officers
involved in the case before this court, must be upheld for it is the sponsor of the integrity of
an officer while acting as such. The state may not be absolved from liability upon the theory
that it is responsible only for losses through defalcation, misappropriation of public funds and
matters of related character, and not for liability for the very type of tortious action which
constitutes one of the logical contingencies for which a sheriff, constable or deputy sheriff
should be required to be bonded in the performance of his official duties.
70 Nev. 389, 396 (1954) Hill v. Thomas
should be required to be bonded in the performance of his official duties.
In support of our determination that a bond conditioned for the faithful performance of the
duties of the officer covers tortious misconduct of the officer in the performance of his
official duties, we cite the case of State of Indiana ex rel. Penrod v. French, 222 Ind. 145, 51
N.E.2d 858, 149 A.L.R. 1084, and the cases cited therein.
To a proper understanding of the Nevada statute which emphasized the parallel existing
between the instant case and the points discussed by the Indiana Supreme Court we quote the
act of the legislature of Nevada approved March 14, 1865, in part as follows:
An Act Concerning Official Bonds.
Sec. 4890, N.C.L.1929. Sec. 1. All official bonds required by law of officers shall be in
form joint and several, and made payable to the State of Nevada, in such penal sum, and with
such conditions, as may be required by law.
Sec. 4891. Sec. 2. Every official bond executed by any officer pursuant to law shall be
deemed and taken to be in force, and shall be obligatory upon the principal and sureties
therein, for any and all breach of the condition or conditions thereof, committed during the
time such officer shall continue to discharge any of the duties of, or hold such office; and
every such bond shall be deemed to be in force and obligatory upon the principal and sureties
therein, for the faithful discharge of all duties which may be required of such officer by any
law enacted subsequently to the execution of such bond, and such condition shall be
expressed therein.
Sec. 4892. Sec. 3. Every official bond executed by any officer pursuant to law, shall be in
force and obligatory upon the principal and sureties therein, to and for the State of Nevada,
and to and for the use and benefit of all persons who may be injured or aggrieved by the
wrongful act or default of such officer in his official capacity, and any person so injured or
aggrieved may bring suit on such bond, in his or her own name, without an assignment
thereof."
70 Nev. 389, 397 (1954) Hill v. Thomas
bring suit on such bond, in his or her own name, without an assignment thereof.
Duties of Sheriff and Deputy
Sec. 2148, N.C.L.1929, Sec. 5. It shall be the duty of sheriffs and of their deputies to keep
and preserve the peace in their respective counties, and to quiet and suppress all affrays, riots,
and insurrections, for which purpose and for the service of process in civil or criminal cases,
and in apprehending or securing any person for felony, or breach of the peace, they may call
upon the power of their county to aid in such arrest, or in preserving the peace.
Duties of Constable and Sheriff.
Sec. 2192, N.C.L.1929. Sec. 6. Each constable shall be a peace officer in his township,
and shall serve all mesne and final process issued by a justice of the peace, and shall
discharge such other duties as are or may be prescribed by law; provided, that in case a sheriff
or his deputy in any county in this state shall make an arrest of any person or persons charged
with a criminal offense or arrested in the commission of an offense, the sheriff or his deputy
shall have the privilege, and it shall be his duty to serve all process, whether mesne or final,
and attend the court executing the order thereof, in the prosecution of the person or persons so
arrested whether in a justice or a district court, to a final conclusion, and whether the same be
an offense of which a justice of the peace has jurisdiction, or whether the same be a
preliminary examination or hearing; and the said sheriff or his deputy shall receive the same
fees and in the same manner therefor as the constable of the township, in which such justice
court is held, would receive for like service.
Peace Officers.
Sec. 10735, N.C.L.1929, Sec. 87. Peace officers are the bailiff of the supreme court,
sheriffs of counties, constables, members of the state police, state detective, marshals,
and policemen of cities and towns respectively.
70 Nev. 389, 398 (1954) Hill v. Thomas
constables, members of the state police, state detective, marshals, and policemen of cities and
towns respectively.
Sec. 10736. Sec. 88. If a warrant be issued by a justice of the supreme court, or district
judge, it may be directed generally to any or all peace officers designated in the preceding
section, and may be executed in any part of the state by any of those officers to whom it may
be delivered.
Sec. 10737. Sec. 89. If a warrant is issued by any other magistrate, it may be directed
generally to any sheriff, constable, marshal, policeman, or other peace officer in the county in
which it is issued, and may be executed by such officer in any part of the state, or if defendant
be in another county it may be executed by any peace officer in the state.
The second point made by the trial court in reaching the conclusion that the demurrer of
the State of Nevada should be sustained and the state dismissed as a party defendant, is that
the state, as sovereign, is immune from suit, and that, in this instance, such immunity had not
been waived.
Article IV, section 22, Constitution of Nevada, provides:
Provision may be made by general law for bringing suit against the state as to all
liabilities originating after the adoption of this constitution.
The legislature of this state, as far back as 1869, and pursuant to this constitutional
provision, provided a statute whereby suits might be brought against the State, which statute
is now section 9200, N.C.L.1929, reading as follows:
An officer or person who has presented a claim against the state for services or advances
authorized by law, and for which an appropriation has been made, but of which the amount
has not been fixed by law, to the board of examiners, which claim said board or the state
controller has refused to audit and allow, in whole or in part, may commence an action in any
court in Ormsby County having jurisdiction of the amount, for the recovery of such portion
of the claim as shall have been rejected.
70 Nev. 389, 399 (1954) Hill v. Thomas
the recovery of such portion of the claim as shall have been rejected. In such action the State
of Nevada shall be named as defendant, and the summons shall be served upon the state
controller, and the action shall proceed as other civil actions to final judgment.
Respondents contend that the foregoing statute affords plaintiffs their only remedy.
It would appear that the above section is of no assistance here, however, as the claims
there provided for are claims for services or advances authorized by law, and for which an
appropriation has been made. The instant case deals only with the obligation of the State of
Nevada as surety on the official bonds of the sheriff and constable of Nye County, Nevada.
[Headnote 3]
We are of the opinion that the legislature of the State of Nevada, by express statute, has
given consent to suit against it on official bonds. Prior to the adoption of the bond trust fund
act of 1937, N.C.L.1931-1941 Supp., sections 4915.21-4915.34, and similar statutes
preceding it, all official bonds were written with individual sureties or corporate sureties.
Since 1865, there has been and still is in effect an act concerning official bonds, N.C.L.1929,
sections 4890-4901, which specifies the form, obligation and other matters relating to all
official bonds in this state. The third section of the act concerning official bonds, N.C.L.1929,
sec. 4892 has been quoted above. It expressly grants to any person injured or aggrieved by the
wrongful act or default of an officer, a right of action on the official bond of such officer and
against the surety or sureties thereon. Consequently, in any instance where an official bond
was written by private sureties, a person injured or aggrieved by the wrongful act or default of
the officer might have sued on the bond itself.
By virtue of the bond trust fund act of 1937, the State of Nevada has become surety on all
official bonds in this state. At the time of the adoption of the act, the legislature had full
knowledge of the act concerning official bonds, which had been in effect since 1S65, and
obligated the State of Nevada as surety on official bonds in accordance with the
provisions of the act relating to official bonds.
70 Nev. 389, 400 (1954) Hill v. Thomas
bonds, which had been in effect since 1865, and obligated the State of Nevada as surety on
official bonds in accordance with the provisions of the act relating to official bonds.
In our opinion the state thereby undertook to permit any person injured or aggrieved by the
wrongful act or default of an officer to bring an action against it directly on the bond, and
thereby consented to suit against it on such bond, waving its sovereign immunity therefrom.
The bond constituted a contract between respondent Thomas, as sheriff, and Lydon as
constable and the State of Nevada as surety for the benefit of any one who might suffer
damages by reason of his failure to faithfully discharge his duties as such officer.
[Headnote 4]
The state has suggested in its brief that section 7 of the state bond trust fund act, being sec.
4915.27, 1931-1941 N.C.L. Supp., sets up a complete procedure for making claims on
official bonds and thereby impliedly repeals the act concerning official bonds, and
particularly section 4892, N.C.L.1929. However, a careful reading of section 7 discloses that
it provides a special proceeding in only a limited number of cases, that is, losses to counties,
cities, the state and irrigation districts resulting from defalcations, misappropriations or other
wrongful act on the part of a public official. The procedure does not cover cases where the
misconduct of the principal has caused injury to third persons protected by section 4892,
supra. It should not be said, however, that failure to provide a specific procedure results in
depriving such person of his right to recover.
The procedure theretofore existing was resort to the courts by an action at law. Failure of
the bond trust fund act to indicate any other procedure and the implication that the state as
surety has assumed the responsibility in such cases, would indicate that that procedure
remains available and constitutes an implied consent by the state to suit and a waiver of its
immunity. Section 3 of the state bond trust fund act, being sec.
70 Nev. 389, 401 (1954) Hill v. Thomas
3 of the state bond trust fund act, being sec. 4915.23, supra, specifically states that This bond
shall have full force and effect as a surety and shall serve all purposes of bonds required by
statute from state or county officials. The bond itself is conditioned as follows: If the said
William Henry Thomas shall faithfully perform and discharge the duties of the office of
sheriff * * *.
Such bond was required of the sheriff before he could qualify under the provisions of sec.
2145, N.C.L.1929, as amended, and covers not only the wrongful act or default of the sheriff
himself, but also the wrongful act or default of any of his deputies. Sec. 2146 and sec. 4892,
N.C.L. 1929.
The case of Gurley v. Brown, 65 Nev. 245, 193 P.2d 693, cited by respondent State of
Nevada and by the district court in its decision, is not authority to the contrary. In that case
there was no semblance of a legislative waiver of sovereign immunity. In that case, 65 Nev.,
on page 250, 193 P.2d 695, the court stated in part:
Conceding that the immunity of the state and its political subdivisions often results in
injustice and leaves an injured person without right of redress, it is too strongly ingrafted in
our jurisprudence to be questioned at this time except in those cases in which the immunity is
waived.
The case stands only for the conceded proposition that the sovereign is immune from suit
in the absence of a waiver of immunity.
[Headnote 5]
The law is well settled that a state, which in the eye of the law is recognized as a
sovereign, cannot without its consent be sued by a citizen. However, there are numerous
instances where a waiver of immunity has been found in order to give full and reasonable
effect to the legislative enactments under consideration. It cannot be said that the authorities
require as a basis for finding of waiver of immunity that the statutes should expressly and
implicitly declare such a waiver and set up a complete procedure for the commencement
and maintenance of the action consented to.
70 Nev. 389, 402 (1954) Hill v. Thomas
finding of waiver of immunity that the statutes should expressly and implicitly declare such a
waiver and set up a complete procedure for the commencement and maintenance of the action
consented to. The principal authorities found supporting a waiver of sovereign immunity
under legislation no more detailed than that with which we are here concerned are as follows:
Saranac Land & Timber Co. v. Roberts, 68 Fed. 521; People v. Durey, 126 Misc. 642, 214
N.Y.S. 418.
In the case of Anderson v. John L. Hayes Const. Co., 243 N.Y. 140; 153 N.E. 28, Justice
Cardozo, writing for the New York Court of Appeals in considering mechanics lien statutes
granting liens to materialmen and subcontractors against money due from the state to the
general contractor, and permitting the state to be joined as a defendant, after the appellate
division had held that there must be a concession of money due from the state to the general
contractor before the waiver of immunity was effective, said:
We find no basis in the statute for this division of judicial functions. The state has
consented to be sued in the ordinary courts of justice, when the subject-matter of the
controversy is a lien upon money owing to its contractor, and has consented that, out of any
money that may be found to be so owing, judgment may be rendered, directing payment to be
made. In consent so explicit, we see no suggestion of a condition that the remedy is to fail if
the debt shall be disputed. Justice and convenience combine with the plain wording of the
statute in forbidding us to imply a condition so oppressive. No sensible reason can be
imagined why the state, having consented to be sued, should thus paralyze the remedy. A
court of dignity and power had the parties before it, and had heard the controversy between
them. To transfer the controversy to the Court of Claims could work no gain to any interest
worthy of protection. Indeed, the special limitations applicable to claims in that court (Court
of Claims Act (Law 1920.c.922) sec 12) might often bring it to pass that the claim would be
barred before the transfer could be made.
70 Nev. 389, 403 (1954) Hill v. Thomas
pass that the claim would be barred before the transfer could be made. The exemption of the
sovereign from suit involves hardship enough, where consent has been withheld. We are not
to add to its rigor by refinement of construction, where consent was been announced.
(Emphasis supplied.)
See also: Hall v. First National Bank, Tex. Court of Civ. App., 252 S.W. 828; Hollister v.
State, 9 Idaho 8, 71 P. 541; Amstein v. Gardner, 134 Mass. 4; Haley v. Sheriden, 190 N.Y.
331, 83 N.E. 296; James Millar Co. v. Commonwealth, 251 Mass. 457, 146 N.E. 677 and
cases cited therein.
In the case of Warren Bros. Co. v. Kibbe, Dist. Court D, Oregon, 43 Fed.2d pages
583-584, the court said:
Motions to dismiss and to transfer to the law side of the court and for a further definite
and specific statement have been filed. On behalf of the commission it is contended that the
suit cannot be maintained against it because it is in effect a suit against the state, which is
prohibited by the Eleventh Amendment to the Constitution of the United States.
There are almost innumerable decisions to be found in the books on this question, and
authorities can be found supporting either view. It would be useless, if not impossible, to
reconcile the authorities, and I do not attempt to do so. It is enough that in my opinion the
great weight of authority as well as reason supports the rule that an action or suit may be
maintained against a state agency to compel it to perform a plain official duty which the law
imposes upon it, and a contract which it has entered into in pursuance of the law.
In the light of the foregoing authorities and the cited enactments of the Nevada legislature,
the only conclusion which we can reach is that the state has waived its immunity from suit in
cases of this character.
Article V, section 21 of the Constitution of Nevada, provides in part that no claims against
the state shall be passed upon by the legislature without having been considered and acted
upon by the state board of examiners.
70 Nev. 389, 404 (1954) Hill v. Thomas
considered and acted upon by the state board of examiners. This same point was asserted at
the time the Nevada industrial insurance act was adopted by the legislature. In the case of
State v. McMillan, 36 Nev. 383, 136 P. 108, it was held that no presentation of a claim to the
state board of examiners was required. The case involved the interpretation of a statute
creating a special fund for the administration of the industrial insurance act, the provisions of
the statute being quite similar to those of the state bond trust fund act.
We think it a fair interpretation of the bond trust fund act and the sections thereof relating
to the procedure for making claims thereunder, that such procedure is limited to a narrow
class of cases involving embezzlements, defalcations and misappropriations of public funds
by public officials. In such instances, the procedure for filing claims prescribed by the act
would be normal and proper, for it would not be anticipated that the counties, municipalities
or irrigation districts suffering the loss would be required to bring an action in a court of law
to impress its claim against the fund. However, while so prescribing such procedure in a
limited type of case, we are of the opinion that the legislature made it crystal clear that it did
not intend to change the surety's liability on official bonds or to restrict the conditions of such
bonds, but intended official bonds written by the State of Nevada as surety to serve all
purposes of official bonds required by the laws of this state. If a waiver of immunity cannot
be implied from these circumstances, the appellants will be left remediless. Such a conclusion
will place the state in the position of having deliberately entered into a business normally
carried on by private individuals rather than governmental agencies, knowing that the
contractual obligations undertaken by it as surety under the bond trust fund act of 1937, were
not what they purported to be, but were rather mere empty words assuring no one of the
protection against the wrongful acts of public officials who frequently are unable
personally to respond in damages to the injured persons.
70 Nev. 389, 405 (1954) Hill v. Thomas
wrongful acts of public officials who frequently are unable personally to respond in damages
to the injured persons.
We conclude that the legislature had knowledge of the existence of the statute relating to
the official bonds under which suit directly against the surety on the bond is authorized, and
enacted the bond trust fund act of 1937 with the intention of subjecting the state and the bond
trust fund established to the same obligations as surety as had theretofore been imposed upon
private sureties.
Appellants also appeal from the order of the trial court transferring venue to the Fifth
judicial district court for the county of Nye. This order was clearly entered in consideration of
the court's action dismissing the state as defendant. Respondents Thomas and Lydon, on
whose motion the change of venue was granted, concede that should the state be held a
proper party, they were not entitled to such change. Such is our view.
The decision and orders of the district court appealed from are reversed, and the matter
remanded for further proceedings.
____________
70 Nev. 406, 406 (1954) Pyle v. Bradley
ELLA PYLE, Appellant v. GROVER O. BRADLEY,
Respondent.
No. 3738
May 4, 1954. 269 P.2d 842.
Appeal from judgment of the Second Judicial District Court, Washoe County; John S.
Belford, Judge, Department No. 1, entered on jury's verdict for defendant, and from order
denying new trial.
Action for damages sustained in intersectional collision between two automobiles. The
Supreme Court, Badt, J., held that objection to an instruction, made for the first time upon
appeal, could not be considered, and that refusal of new trial where evidence was conflicting
and no objection was made to instructions, was not an abuse of discretion.
Affirmed.
Martin J. Scanlan, of Reno, and John G. Spann, of Sparks, for Appellant.
Woodburn, Forman and Woodburn and Peter Echeverria, all of Reno, for Respondent.
1. New Trial.
In action for damages sustained in intersectional collision, where plaintiff, coming from left, appeared to
be stopping and defendant was somewhat blinded by sun, sneezed on entering intersection and crashed into
right rear of plaintiff's automobile, refusal of new trial after verdict for defendant was not abuse of
discretion, in view of unavoidable accident instruction given without objection.
2. Evidence.
Court may take judicial notice that sneezes vary greatly as to type and duration.
Where objection to an instruction was not made at trial, it could not be considered on appeal.
4. Trial.
In action for damages sustained in intersectional collision, where defendant in approaching from right had
right of way by ordinance over automobile which he saw was approaching from left and slowing for stop,
jury in finding for defendant did not manifestly disregard instruction to effect that if
defendant was blinded by sun he should have stopped and if he failed to do so, jury
should find for plaintiff.
did not manifestly disregard instruction to effect that if defendant was blinded by sun he should have
stopped and if he failed to do so, jury should find for plaintiff.
OPINION
The only substantial question presented is whether the court abused its discretion in
denying plaintiff's motion for new trial after a verdict for defendant.
Plaintiff's car, headed north, and defendant's car, headed west, approached an intersection
in Reno at about the same time. In the approximate center of the intersection the right rear
side of plaintiff's car was struck by the front of defendant's car. In plaintiff's suit for damages,
growing out of the collision, plaintiff relied upon (1) a general allegation of negligence, (2)
negligence by reason of defendant's alleged violation of an ordinance requiring a car to stop
when the intersection was occupied by a crossing car and (3) negligence by reason of
defendant's alleged violation of an ordinance prohibiting speed over fifteen miles per hour in
an intersection. Plaintiff has appealed from the judgment and from the order denying her
motion for new trial, assigning as error insufficiency of the evidence to justify the verdict, to
such extent that the denial of her motion for new trial was an abuse of discretion.
[Headnote 1]
Plaintiff's driver and defendant were the only persons testifying to the actual collision.
Defendant's testimony was to the effect that he approached the intersection at a speed not
exceeding fifteen miles an hour, had a clear view in all directions, saw plaintiff's car
approaching from the left and slowing down for an apparent stop at the intersection; that he
accordingly proceeded forward, pulled down the sun visor against the sun that was to some
extent obscuring his vision, and sneezed at the instant his car struck the plaintiff's car; that
he had not observed the plaintiff's car from the time he first concluded it was slowing for
a stop till the time of the impact.
he had not observed the plaintiff's car from the time he first concluded it was slowing for a
stop till the time of the impact. Plaintiff's driver testified that he had stopped at the
intersection, looked in both directions and saw no car approaching, then proceeded at
fourteen or fifteen miles an hour to cross and saw the defendant's car approaching from the
right at an estimated speed of twenty miles an hour; that he tried to avoid the collision by
veering to the left but was too late. Another city ordinance involved gave right of way to a car
entering an intersection from the right when two cars enter an intersection at the same time.
We are unable to conclude either that the evidence was insufficient to justify the verdict or
that there was any error or abuse of discretion in the refusal of the learned district judge to
interfere with the jury's verdict, which apparently either absolved the defendant from the
charge of negligence or found the accident to be unavoidable. An unavoidable accident
instruction was given to the jury without objection. Both witnesses to the accident testified at
considerable length from sketches made upon the blackboard, showing the intersection, the
location of the respective cars at the different instants of time involved, etc. Not only is the
testimony in conflict but much of it is unintelligible in the absence of the sketches from the
record.
[Headnotes 2, 3]
While plaintiff complains of one of the court's instructions to the jury to the effect that
defendant's failure to stop when he was about to sneeze
1
was not negligence, no objection
was made to the instruction and the assignment may not be considered at this time.
____________________

1
Neither party questioned the defendant as to the extent or duration of the paroxysm. The court, devoid of
medical knowledge though it be, may still take judicial notice of the almost infinite variety of these
spasmsfrom an inoffensive sneezette to a violence that threatens not only the very bones of the sneezer but the
health of all sneezees within range. Certainly, appellant's implications of negligence picture the repetitive
spasmodic half-exhalatory gasps, with eyes closed and other senses suspended, and ending in a screaming
crescendo. This, however, finds no support in the record.
no objection was made to the instruction and the assignment may not be considered at this
time. McNamee v. Nesbitt, 24 Nev. 400, 56 P. 37.
[Headnote 4]
Plaintiff also assigns as error the jury's manifest disregard of the court's instructions, and
indicates that this has reference particularly to the instruction that if defendant was so
blinded by the sun as to prevent him from seeing any car in the intersection [until] too late to
avoid a collision with such said car, it was his duty to stop his car, and if he failed to do so,
the jury should find for plaintiff. It cannot be said that the jury manifestly disregarded this
instruction in its evident conclusion that defendant was using due care in approaching and
entering the intersection after observing plaintiff's car slowing for a stop (supported by the
testimony of plaintiff's driver that he actually did come to a stop), and in exercising the right
of way given him by the ordinance over a car approaching from the left.
As we find the foregoing assignments of error to be without merit and as no other errors
are relied upon, the judgment and the order denying new trial must be affirmed with costs. It
is so ordered.
____________
70 Nev. 410, 410 (1954) Dearden v. Galli
VIVIAN H. DEARDEN, Appellant v. ALBERT D.
GALLI, Respondent.
No. 3772
May 5, 1954. 269 P.2d 1014.
The Seventh Judicial District Court, White Pine County, Harry M. Watson, J., denied
motion to supplement the record to include refused instructions and appellant filed motion to
supply omission in record before Supreme Court. The Supreme Court held that where record
before it correctly and completely represented the state of trial court's record at that time,
record was not subject to correction.
Motion denied.
See also 70 Nev.___, 277 P.2d 381.
Stewart, Cannon & Hanson and Ernest F. Baldwin, Jr., of Salt Lake City, Utah; Robert R.
Gill, of Ely; Pike & McLaughlin, of Reno, for Appellant.
Gray and Horton, of Ely, for Respondent.
Appeal and Error.
Where record before Supreme Court correctly and completely represented state of trial court's records
at that time, record was not subject to correction and appellant could not, by her motion to supply
omissions in record before Supreme Court, obtain review of trial court's action in refusing to include
refused instructions in its own record.
On Motion to Supply Omissions in Record
Per Curiam:
Appellant contends that several instructions to the jury requested by him and refused by
the district judge do not appear in the record, and the purpose of his motion is to include these
refused instructions so that the asserted error in refusing to give them may be presented in
support of his appeal.
A motion was made to the district court to supplement the record in this respect, which
motion was denied upon the ground that the requested instructions had not been filed
with the court.
the ground that the requested instructions had not been filed with the court. In this regard the
recollection of the trial judge (which is squarely supported by affidavit of respondent's
attorney) appears from the record to be that counsel for appellant was directed by the court to
file his requested instructions in order that the proper orders might be endorsed thereon; that
counsel stated he wished to put them in proper form and would file them later; that this was
never done.
Appellant asserts that the court's conception of the situation was erroneous and that the
record supports the proposition that the instructions in fact were presented to the judge; that
while no explanation can be made for their absence from the record of the court below, their
absence should nevertheless be remedied. Appellant's problem as presented is concerned not
with the sufficiency of the record before this court but with the sufficiency of the trial court
record. Appellant in effect asserts error by the trial court in refusing to complete its own
record, and by this motion to supply omissions in our record asks review of that action. This,
we feel, cannot properly be accomplished by this motion. The record before this court
correctly and completely represents the state of the trial court's record at this time. It is not,
then, subject to correction. O'Briant v. State, 70 Nev. 368, 269 P.2d 276.
Motion denied.
____________
70 Nev. 412, 412 (1954) Allen v. Allen
WALTER E. ALLEN, Appellant, v. M. LUCILLE
ALLEN, Respondent.
No. 3599
May 24, 1954. 270 P.2d 671.
Appeal from Order of Second Judicial District Court, Washoe County; William McKnight,
Judge, Department No. 1, denying motion for nunc pro tunc order correcting decree.
Divorce proceeding in which husband, ten years after entry of divorce decree, sought nunc
pro tunc order incorporating verbatim within divorce decree the contract made between
parties in contemplation of divorce. The Second Judicial District Court, Washoe County,
William McKnight, J., denied motion, and husband appealed. The Supreme Court, Taber, J.,
held that, where Oklahoma Supreme Court had refused to give full faith and credit to Nevada
divorce decree, which had been amended, without notice to wife, by nunc pro tunc order
purporting to incorporate within decree the contract made between parties in contemplation of
divorce, and had determined that wife had right to collect support payments by action on
contract in Oklahoma, Nevada trial court's refusal, after ten years, to amend decree nunc pro
tunc, with notice to wife, to incorporate such contract in decree, thereby merging contract in
judgment, was not an abuse of its discretion.
Affirmed.
Pike and McLaughlin, of Reno, and Robert E. Shelton, of Oklahoma City, Oklahoma, for
Appellant.
Frank R. Peterson and William J. Cashill, of Reno, and Tom W. Garrett, of Oklahoma
City, Oklahoma, for Respondent.
1. Divorce.
Where Oklahoma Supreme Court had refused to give full faith and credit to Nevada divorce decree,
which had been amended, without notice to wife, by nunc pro tunc order purporting to incorporate
within decree the contract made between parties in contemplation of divorce, and
had determined that wife had right to collect support payments by action on contract
in Oklahoma, Nevada trial court's refusal, after ten years, to amend decree nunc pro
tunc, with notice to wife, to incorporate such contract in decree, thereby merging
contract in judgment, was not an abuse of its discretion.
70 Nev. 412, 413 (1954) Allen v. Allen
purporting to incorporate within decree the contract made between parties in contemplation of divorce, and
had determined that wife had right to collect support payments by action on contract in Oklahoma, Nevada
trial court's refusal, after ten years, to amend decree nunc pro tunc, with notice to wife, to incorporate such
contract in decree, thereby merging contract in judgment, was not an abuse of its discretion.
2. Judgment.
Question whether nunc pro tunc order should be made depends upon circumstances of particular case,
and it is to be granted or refused as justice may require.
3. Courts.
Court has inherent power to correct its records, and clerical errors may be corrected by court upon its
own initiative or upon motion, but where error is clearly apparent, such relief is a matter of right.
OPINION
By the Court, Taber, District Judge:
Appellant sought a nunc pro tunc order in July, 1949, correcting a 1939 divorce decree to
conform to what appellant claims the trial court intended to decide. Appellant desired by his
motion to incorporate an agreement verbatim within the four corners of the decree. The
agreement provided monthly support payments for respondent and was entered into prior to
the divorce in 1939.
The formal judgment, the clerk's minutes and the oral decision all show that the trial court
in granting the divorce had the agreement in mind.
The formal judgment signed by the trial court ordered that the agreement between the
parties hereto, dated August 4, 1939, be, and it is hereby approved, adopted and confirmed by
this Court, and the parties hereto directed to comply therewith and execute the terms thereof.
The clerk's minutes approved by the court read as follows: It is further ordered that the
agreement entered into between the parties on the 4th day of August, 1939, admitted in
evidence as plaintiff's exhibit A, be and the said agreement is approved, ratified and adopted
by the court, and made a part of the decree."
70 Nev. 412, 414 (1954) Allen v. Allen
decree. The oral decision as alleged in appellant's moving papers reads as follows: Let a
decree be entered dissolving the bonds of matrimony heretofore and now existing between
Walter E. Allen, plaintiff, and M. Lucille Allen, defendant, and restoring the parties to the
status of unmarried persons; and that the agreement heretofore entered into between the
parties, dated August 4, 1939, admitted here in evidence as plaintiff's Exhibit A' be
approved, ratified and adopted by this Court and made a part of this Decree.
The motion was heard on July 12, 1949, and denied by the court without opinion on that
date. This is an appeal from that ruling.
The case was briefed and argued to this court on the question of merger. Appellant
contends that the action of the trial court, as recited, merged the agreement in the decree.
Respondent contends that the agreement survives the decree.
The briefs point out that during the ten-year period following the divorce in 1939 the
litigious Allens have been to the Oklahoma Supreme Court on four appeals and one
application for certiorari to the United States Supreme Court.
The object of appellant's motion is to accomplish a merger of the agreement into the
decree according to the standard laid down by the Oklahoma Supreme Court in an action
between the parties upon the contract, Allen v. Allen, 256 P.2d 449, thus defeating his former
wife's right to collect support payments by an action on the contract in the State of Oklahoma
and leaving her to remedies under the Nevada decree which are manifestly different. We are
in effect asked to adopt Oklahoma's conception of mergercorrect the 1939 divorce decree
by a nunc pro tunc order accordinglyand unsettle the rights of the parties which have at
long last been established in that state.
[Headnotes 1-3]
Under these circumstances we decline to decide the question of merger.
70 Nev. 412, 415 (1954) Allen v. Allen
question of merger. Instead we regard the question before us as one that was entirely within
the discretion of the trial court and which will not be reversed unless there was an abuse of
that discretion.
We quote with approval the language of the California Supreme Court in Carter v. J. W.
Silver Trucking Company, 4 Cal.2d 198, 47 P.2d 733, 737: Whether a nunc pro tunc order
should be made depends on the circumstances of the particular case and it is to be granted or
refused as justice may require.' (Emphasis supplied.) In so doing we recognize the rule that
a court has inherent power to correct its records and that clerical errors may be corrected by
the court on its own initiative or on motion. In cases where the error is clearly apparent such
relief is a matter of right. Silva v. District Court, 57 Nev. 468, 68 P.2d 422. But appellant is
not entitled in this matter to a nunc pro tunc order as a matter of right. In the Silva case relied
on by appellant the relief granted was the correction of a clerical error in the record so that it
would conform to what the trial court actually decided. In the instant case appellant asks us
(1) to determine that what the trial court intended to accomplish by its decree was a merger;
(2) to correct the decree by making it speak that intent and accomplish that result in the
form prescribed by the law of Oklahoma. This goes far beyond the holding in the Silva case.
We regard appellant's application as one that was addressed to the discretion of the trial
court and we cannot say after the lapse of ten years and the circumstances of this particular
case that the denial of the motion was an abuse of that discretion.
Eather, C. J., being disqualified, the Governor designated Honorable Harold O. Taber,
Judge of the Second Judicial District, to sit in his place.
70 Nev. 412, 416 (1954) Allen v. Allen
July 15, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 416, 416 (1954) Bank of Nevada v. Drayer-Hanson
BANK OF NEVADA, Appellant, v. DRAYER-
HANSON, INC., Respondent.
No. 3790
May 25, 1954. 270 P.2d 668.
On motion to dismiss.
Bank brought action against corporation. The Eighth Judicial District Court of Clark
County, A. S. Henderson, Judge, Department No. 1, entered judgment adverse to bank, and
bank appealed, and corporation made a motion to dismiss appeal for failure to docket appeal
and file record within time provided by Rule of Civil Procedure. The supreme court, per
curiam, held that since bank showed no reason for its failure to docket appeal or file record on
appeal within time provided, appeal was required to be dismissed, though matter was pending
at time Rules of Civil Procedure became effective.
Appeal dismissed.
John H. McNamee, of Las Vegas, for Appellant.
Emilie N. Wanderer, of Las Vegas, for Respondent.
Appeal and Error.
Where appellant showed no reason for its failure to docket appeal or file record on appeal within time
provided by rule of civil procedure appeal was required to be dismissed with costs by supreme court,
though matter was pending at time Rules of Civil Procedure became effective. Rules of Civil Procedure,
rules 73(g), 86.
70 Nev. 416, 417 (1954) Bank of Nevada v. Drayer-Hanson
OPINION
Per Curiam:
The appeal herein has never been docketed nor the record on appeal filed by appellant.
Upon respondent's motion the appeal was docketed for the purpose of moving its dismissal.
Five grounds are stated for dismissal, one of which is that the appeal was not docketed and
the record upon appeal filed within the time provided by Rule 73 (g) Nevada Rules of Civil
Procedure.
Notice of appeal was filed June 22, 1953, six months after N.R.C.P. became effective.
While this matter was pending at the time the rules became effective, no reason appears why
application of the rules would not be feasible or would work injustice. See Rule 86, N.R.C.P.
Appellant has resisted the motion to dismiss but has shown no reason for its failure to docket
the appeal or file the record on appeal within the time provided. The appeal therefore must be
dismissed with costs. Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955.
It is so ordered.
____________
70 Nev. 418, 418 (1954) Montesa v. Gelmstedt
HENRIETTA MONTESA, Also Known as HENRIETTA RAYGOZA MONTESA, an
Unmarried Woman, Appellant, v. ADA A. GELMSTEDT, a Widow, Respondent.
No. 3787
May 25, 1954. 270 P.2d 668.
Department No. 2.
Suit for damages and injunctive relief against defendant allegedly responsible for the
escaping of flood waters over plaintiff's land. The Second Judicial District Court, Washoe
County, A. J. Maestretti, Judge, Department No. 2, entered judgment from which the plaintiff
appealed. The Supreme Court, Merrill, J., held that evidence sustained finding that the lateral
irrigation ditches on plaintiff's property were known to her at time she purchased the property,
as well as the purpose for which they were used, and that any damage as result of such waters
was occasioned solely by fact that plaintiff had filled in and covered an irrigation ditch,
without any contributing cause on part of defendant.
Affirmed.
James D. Finch, of Reno, for Appellant.
Sidney W. Robinson, of Reno, for Respondent.
1. Water and Water Courses.
In suit for injunctive relief and damages for flooding of plaintiff's land by lateral ditch leading to ranch
property of defendant, wherein it appeared that plaintiff had purchased her property from defendant,
evidence sustained finding that branches of lateral ditch were known to plaintiff at time she purchased her
property, as was the purpose for which they were used, and that any damage to her property as result of
waters therefrom was occasioned solely by fact that she had filled in and covered the irrigation ditch, and
that defendant was guilty of no contributing cause.
2. Waters and Water Courses.
Plaintiff who sought damages and injunctive relief because of flooding of her land by lateral ditches
running from ranch property of defendant, who had sold to plaintiff the tract occupied by
her, was required to show, as condition of recovery, not only that her land was
flooded, but that flooding existed due to conduct of defendant which defendant
should be enjoined to cease, and thus the matter of justification went to the very root
of the cause of action, destroying rather than avoiding it, and proof thereof was
proper under a general denial by defendant.
property of defendant, who had sold to plaintiff the tract occupied by her, was required to show, as
condition of recovery, not only that her land was flooded, but that flooding existed due to conduct of
defendant which defendant should be enjoined to cease, and thus the matter of justification went to the very
root of the cause of action, destroying rather than avoiding it, and proof thereof was proper under a general
denial by defendant.
3. Easements.
Where plaintiff purchased property from defendant with full knowledge of lateral irrigation ditches, and
their use, plaintiff was charged with notice of the apparent easement, and the servient character of her
property, even though the deed to her by defendant contained no express reservation thereof.
OPINION
Appellant as plaintiff brought this suit against respondent charging that flood waters were
escaping from respondent's land and flooding appellant's land. She seeks an injunction and
damages. The trial court denied relief and she has taken this appeal from the judgment. The
parties will be designated as plaintiff and defendant.
On the western edge of the city of Reno, the Lake ditch, diverting water from the Truckee
river, skirts what formerly was the Gelmstedt ranch, owned by defendant. From a headgate in
the ditch a lateral ditch leads through the ranch property, divides into two branches and then
converges upon a drainage system which carries waste water back to the river. For the past 60
years this system has supplied the ranch with its irrigation requirements.
With the growth of the city, substantial portions of the ranch property were subdivided and
sold by defendant as city lots. Domestic water was piped to the property by the utility
company which serves the urban area. The lateral ditch was not abandoned, however. It
continued to supply irrigation water for garden plots, orchards and similar uses.
orchards and similar uses. By 1950 four property owners in addition to defendant, and above
her on the course of the ditch, were making such use of it.
In 1950 defendant sold two lots to plaintiff for residential purposes. The deed expressly
included all water and water rights, ditches and ditch rights appurtenant thereto or used in
connection therewith. The two branches of the lateral ditch pass through the property so
sold. Its western boundary is a private roadway. Adjoining the lots to the west and across the
roadway is defendant's home property.
In 1952 plaintiff brought in earth to fill and level that portion of her property to the south
of her dwelling house, planning to cover it with topsoil and seed it to lawn. In the course of
this work the southern branch of the lateral ditch was filled in. Water passing down it through
defendant's property reached the obstruction, spread over the roadway, and flowed onto
plaintiff's property. Plaintiff charges defendant with the responsibility for this flooding.
[Headnote 1]
The trial court in holding for defendant found that both branches of the lateral ditch were
known to plaintiff at the time she purchased the property, as well as the purpose for which
they were used; that any damage occasioned to plaintiff's property as the result of such
waters was occasioned solely by the fact that plaintiff had filled in and covered over said
irrigating ditch without any contributing cause whatsoever upon the part of defendant. This
determination finds ample support in the record.
Plaintiff raises two points upon this appeal:
[Headnote 2]
First: It is contended that since, in answering the complaint, defendant contented herself
with a general denial, the sole issue raised is whether plaintiff's property was flooded. A
justification for that flooding, it is contended, being in confession and avoidance, demands
special pleading as an affirmative defense.
contended, being in confession and avoidance, demands special pleading as an affirmative
defense.
The gist of plaintiff's right to relief, however, is not that a condition of inundation existed;
but rather that it existed through conduct of defendant which she should be enjoined to cease.
Defendant's defense was not a justification for her actions in flooding plaintiff's land, but a
denial that she was in any way responsible. The findings are squarely to this effect. The
defense, then, went to the very root of the cause of action, destroying rather than avoiding it,
and was proper under a general denial. See: 41 Am.Jur. 541 (Pleading, sec. 366).
Second: Plaintiff contends that, since her property was deeded to her by defendant without
express reservation of any easement for the lateral ditch, it was wholly free from any
servitude in that regard.
[Headnote 3]
We have noted the court's finding, supported by the record, that the ditch was known to
plaintiff at the time she purchased the property, as well as the purpose it served. Under these
circumstances the recognized general rule is that the purchaser of a servient tenement is
charged with notice of the apparent easement. Hatton v. Cale, 152 Ia. 485, 132 N.W. 1101;
See: 17 Am.Jur. 1018 (Easements, sec. 130); Anns. 41 A.L.R. 1443; 74 A.L.R. 1250. This
rule is held to accomplish an implied reservation of easement although at the time the
servitude was created both the dominant and servient tenements were in common ownership.
Phillips v. Phillips, 48 Pa.St.Rep. 178, 86 Am.Dec. 577; Rollo v. Nelson, 34 Utah 116, 96 P.
263, 26 L.R.A., N.S., 315. This rule in turn was early applied to cases of drainage ditches and
mill runs. Seibert v. Levan, 8 Pa.St.Rep. 383, 49 Am.Dec. 525; Sanderlin v. Baxter, 76 Va.
299, 44 Am.Rep. 165; Kelly v. Dunning, 43 N.J.Eq. 62, 10 A. 276 (modified in 46 N.J.Eq.
605, 47 N.J.Eq. 324, 22 A. 128). In the last case cited, still earlier authority is quoted which
seems particularly applicable to the case at bar.
quoted which seems particularly applicable to the case at bar. It is stated, A more concise
and lucid statement of this principle was made by Baron Martin in Dodd v. Burchell, 1 Hurl.
& C. 113. * * * He said: If a man has two fields drained by an artificial ditch cut through
both, and he grants to another person one of the fields, neither he nor his grantee can stop up
the drain; for there would be the same right of drainage [after the grant] as before, since the
land was sold with the drain in it.' And Chancellor Zabriskie's statement of the principle is
equally pertinent. He said: If the owner of a tract of land of which one part has had the
benefit of a drain through or in the other part, sells either part, an easement is created by
implication of law in or to the other part. And this is the case even if it is the servient part that
is sold.' Denton v. Leddell, 23 N.J.Eq. 64.
We conclude that plaintiff took the property subject to the apparent easement.
While the point is not clearly presented, plaintiff throughout her briefs and argument to
this court has implied that defendant through nonuser and abandonment had lost her right to
use of the southern branch of the lateral. In many respects the pertinent testimony is in dispute
and the issue is far from satisfactorily presented. Even assuming, however, that defendant had
lost any right to originate a flow of water through the ditch in question, there is nothing in the
record to establish that she was attempting to exercise such a right here. She was fifth in line
on the course of the ditch. The headgate was controlled by a gatetender for the benefit of all
users on the ditch and in accordance with the established water rights of all on the Lake ditch.
Under the circumstances the record can hardly be said to support the contention that
defendant maintained control over the flow and wrongfully permitted it to continue.
July 1, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 423, 423 (1954) Churchill County Trustees v. Smith
BOARD OF SCHOOL TRUSTEES OF CHURCHILL COUNTY, CONSOLIDATED
SCHOOL DISTRICT B, Plaintiff and Appellant, v. T. J. SMITH, Defendant and Respondent,
and R. L. DOUGLASS, Intervening Defendant and Respondent.
No. 3765
June 14, 1954. 271 P.2d 394.
Appeal from judgment of the First Judicial District Court, Churchill County; Clark J.
Guild, Judge.
Action in unlawful detainer to recover possession of school building. Defendant
landowner intervened and cross-complained to quiet title to schoolhouse tract of land. The
First Judicial District Court, Churchill County, Clark J. Guild, Judge, denied school board's
claim and school board appealed. The Supreme Court, Badt, J., held that a building
constructed on a concrete foundation on land for school purposes and used as school for
period of 40 years under circumstances indicating a dedication became a part of the realty and
when building was abandoned for school purposes, the property reverted to the servient
estate.
Judgment denying plaintiff relief affirmed. Remanded with direction to dismiss
complaint.
A. Loring Primeaux, of Fallon, for Appellant.
G. J. Kenny, of Fallon, for Respondents.
1. Improvements.
Permanent improvements affixed by a stranger to land of another become realty and vest in the owner of
the fee.
2. Improvements.
Where school building was constructed on land on concrete foundation with permission of
landowner, and building was used for school purposes for a period of 40 years under
circumstances indicating a dedication and then abandoned for such use, the building
was a fixture and part of realty and reverted to the servient estate.
foundation with permission of landowner, and building was used for school purposes for a period of 40
years under circumstances indicating a dedication and then abandoned for such use, the building was a
fixture and part of realty and reverted to the servient estate.
3. Forcible Entry and Detainer.
In action for unlawful detainer, where agreed statement of facts established title to land either in
cross-complainant or irrigation district, absence of irrigation district as party to the action precluded
determination of title. N.C.L.1929, sec. 8565.
OPINION
This appeal presents the question as to whether a certain school building erected by school
authorities upon land of another was and remained personal property of the school authorities
subject to removal by them under the circumstances hereinafter stated; or whether it became a
fixture and a part of the realty subject to a dedication for public school purposes and reverted
to the servient estate on abandonment of such public use.
According to the agreed statement of facts the building was constructed on a parcel of land
defined by metes and bounds as being a tract 428 feet by 140 feet, comprising approximately
1.4 acres, as part of an 80-acre tract owned by R. L. Douglass, intervenor herein. Douglass
owned the land from a date prior to 1909 when the Island School District was formed. Under
statutory proceedings the district issued and sold $1,000 20-year bonds, with the proceeds of
which it constructed the building on a concrete foundation with the permission of said
Douglass. In 1929 Douglass conveyed the 80-acre tract to one Washburn, save and except *
* * that block of land reserved for school purposes. In 1936, because of the tax delinquency
of Washburn the entire 80-acre tract including the school parcel, was through inadvertence
conveyed to Churchill County, and in 1946 Churchill County conveyed the entire 80-acre
tract to Truckee-Carson Irrigation District, which district in 1949 conveyed the S0 acres,
excepting the school tract reserved, to Kenneth W.
district in 1949 conveyed the 80 acres, excepting the school tract reserved, to Kenneth W.
Smith. All of the conveyances mentioned were placed on record. For this entire period of
forty years the possession of the school district was undisturbed. In 1949 Island School
District was consolidated with Consolidated School District B, whose board of trustees is the
appellant herein.
On September 9, 1949 the Consolidated District entered into an agreement with the Ladies
Circle of Island District whereunder it turned over the building to the Ladies Circle for use
as a community center and the Ladies Circle assumed full responsibility for the care,
upkeep, insurance and use of the former Island School which will serve as a community
center for this district. We further assume any and all liabilities of any nature connected with
the care and use of the former Island School and Grounds. It is further understood that the
Con. B. Board relinquishes all title to the above and assigns the building and grounds for use
as a community center to be governed by the [Ladies Circle] Board. (Emphasis supplied.)
The Ladies Circle then rented the premises to T. J. Smith. When Smith refused to vacate,
upon the ground that he was the tenant and caretaker of Douglass, this action in unlawful
detainer was commenced against Smith, and Douglass was permitted to intervene and defend.
The court denied plaintiff relief and quieted title in Douglass, and the school district
appealed.
[Headnotes 1, 2]
Appellant concedes the general rule of law that permanent improvements affixed by a
stranger to the land of another become realty and vest in the owner of the fee, but relies upon
an exception to such general rule, that where such improvements are erected on the land of
another with the latter's permission an agreement is implied that the structure shall remain the
property of the person erecting the same and subject to removal by him. Respondent relies
upon the theory that the facts show a dedication of the land by Douglass to school purposes
not subject to revocation so long as they were so used; the erection of the school building
upon a concrete foundation whereunder it became a part of the realty; the abandonment
of the school for school purposes and the reversion of the easement.
facts show a dedication of the land by Douglass to school purposes not subject to
revocation so long as they were so used; the erection of the school building upon a concrete
foundation whereunder it became a part of the realty; the abandonment of the school for
school purposes and the reversion of the easement. The learned district judge upheld this
theory, and the stipulated facts and the applicable law sustain this holding. 26 C.J.S. 154,
Dedication, sec. 64; New Hebron Cons. School District v. Sutton, 151 Miss. 475, 118 So.
303; Shearer v. City of Reno, 36 Nev. 443, 136 P. 705; Treadway v. Sharon, 7 Nev. 37 (cons.
vol. 5-6-7 Nev. 725).
The actions of the parties over a period of forty years, the various deeds of record recognizing
the exception or reservation of the tract for school purposes and the continued use of the
property for school purposes for this extended period are inconsistent with appellant's theory
that the owner of the 80-acre tract could at any time have withdrawn permission and
required the school trustees to remove the buildinga reciprocal right which would follow as
a matter of law if appellant's theory could be sustained.
[Headnote 3]
When Douglass cross complained to quiet his title to the schoolhouse tract of land, the
board of school trustees sought to defend by showing that the title had passed from Douglass
through the delinquent tax proceedings. The agreed statement of facts establishes that the title
was either in Douglass or in Truckee-Carson Irrigation District, which was not a party to the
action, and without whose presence no determination of title could be made. N.C.L.1929, sec.
8565; Robinson v. Kind, 23 Nev. 330, 47 P. 1. Nor is this material. The dominant estate, the
easement to use the property for school purposes under the dedication, having been
abandoned, there was a reversion thereof to the servient estate, and the identity of the person
owning the fee became a matter of no concern to the school district. The school board's
appeal, therefore, concerns only that part of the judgment that denies it any relief.
school board's appeal, therefore, concerns only that part of the judgment that denies it any
relief. Such part of the judgment we affirm.
It is ordered that the case be remanded to the district court with instructions to enter a
judgment dismissing the complaint. The parties shall pay their own respective costs in this
court.
____________
70 Nev. 427, 427 (1954) Parman v. Petricciani
WALTER O. PARMAN, Appellant, v. JOHN PETRICCIANI and GUILIA PETRICCIANI,
His Wife, Respondents; BRADFORD R. HEWINS, Intervenor-Respondent.
No. 3770
June 23, 1954. 272 P.2d 492.
Appeal from the Second Judicial District Court, Washoe County; Taylor H. Wines,
Presiding Judge, Department No. 1.
Action seeking a declaratory judgment determining the rights of parties under a lease and
declaring lease valid, subsisting and enforceable. Lessors' motion for summary judgment was
granted and the Second Judicial District Court, Washoe County, Taylor H. Wines, Presiding
Judge, Department No. 1, entered judgment dismissing the action, and a lessee appealed. The
Supreme Court, Merrill, J., held, inter alia, that lease provision that, in the event the lessees,
or either of them could not obtain the requisite licenses to conduct a gaming business on the
premises, the lease should become null and void, was unambiguous, and true intent of the
contracting parties could not be said to constitute a genuine issue of fact precluding summary
judgment.
Affirmed.
Griswold, Vargas & Bartlett, and John S. Halley, of Reno, for Appellant.
John S. Sinai, John W. Coulman, and David P. Sinai, of Reno, for Respondents.
Guild, Busey & Guild, of Reno, for Intervenor-Respondent.
After entry of summary judgment, question upon appeal is whether genuine issues have been created by
the pleading and proof offered. Rules of Civil Procedure, Rule 56(c).
Upon appeal from summary judgment for defendant, the Supreme Court would accept as true allegations
and affirmations favorable to plaintiff's position. Rules of Civil Procedure, Rule 56(c).
3. Judgment.
Lease provision that in the event the lessees, or either of them, could not obtain the requisite licenses to
conduct a gaming business on the premises the lease should become null and void, was unambiguous, and
true intent of the contracting parties could not be said to constitute a genuine issue of fact precluding
summary judgment.
4. Landlord and Tenant.
Lease provision that, in the event the lessees, or either of them, could not obtain the requisite licenses to
conduct a gaming business on the premises, the lease should become null and void, was not susceptible of
construction that should any one of the lessees obtain the requisite licenses the lease would continue
operative and in full force for his benefit.
Where lease executed in favor of three lessees provided that in the event the lessees or either of them
could not obtain the requisite licenses to conduct a gaming business on the premises the lease should
become null and void, and two lessees failed in their efforts to obtain the requisite licenses, after which
third lessee and lessor discussed possibility of a new lease or a modification of old lease with other lessees
to be substituted in place of lessees who failed to obtain requisite licenses, lessor did not thereby waive his
right to assert forfeiture of the lease nor was he estopped from denying that old lease continued to run to
third lessee as sole lessee.
Where lease executed in favor of three lessees provided that in the event a lessee, or either of them, could
not obtain the requisite licenses to conduct a gaming business on the premises, the lease should become
null and void, and two lessees failed in their efforts to obtain the requisite licenses, and lessor, although
lease did not compel him to do so, returned to the two lessees their deposit made under the
lease, such return of deposit was consistent with termination of the lease and did not
imply an affirmance of the lease with third lessee as sole lessee.
returned to the two lessees their deposit made under the lease, such return of deposit was consistent with
termination of the lease and did not imply an affirmance of the lease with third lessee as sole lessee.
7. Judgment.
Summary judgment may not be used as a shortcut to the resolving of disputes upon facts material to the
determination of the legal rights of the party. Rules of Civil Procedure, Rule 56(c).
OPINION
This is an action brought by appellant seeking a declaratory judgment determining the
rights of the parties under a lease and declaring that the lease is valid, subsisting and
enforceable. Defendants' motion for summary judgment was granted by the trial court and the
action dismissed. From that judgment plaintiff has taken this appeal. We shall refer to the
parties by name.
On October 17, 1951 the Petriccianis as lessors entered into a lease of certain premises in
the city of Reno. Three persons were named as lessees: appellant Parman, one Pechart and
one Kessel. The term of the lease was ten years. The total rental was specified as $528,012. It
was expressly provided that the premises should be used for the sole purpose of conducting
therein and thereon a general gaming and bar business. Paragraph 27 of the lease provided in
part: In the event the lessees, or either of them, cannot obtain the requisite licenses to
conduct a gaming business on the premises * * * from the proper licensing authorities in the
State of Nevada, County of Washoe and City of Reno, then this lease shall become null and
void and of no further force and effect as herein set forth and Lessors herein shall have the
right to proceed to lease and lease said property to other parties or do anything they desire
with said premises without any claim of damage or injury on the part of the Lessees against
the Lessors * * *.
Pechart and Kessel were unable to secure licenses from the state authorities. On May 29,
1952 while action on Parman's application for license was still pending, he was notified by
the Petriccianis that they had canceled and annulled the lease. Parman contends that this
action was wrongful.
[Headnotes 1, 2]
The trial court having acted by summary judgment, the essential question is whether
genuine issues of fact were created by the pleadings and proof offered. Rule 56(c) N.R.C.P. In
determining this question we shall accept as true the allegations and affirmations favorable to
the position of the plaintiff. Smith v. Hamilton, 70 Nev. 212, 265 P.2d 214. Parman contends
that in two respects genuine issues have been created.
First: He contends that paragraph 27 as quoted is ambiguous since it is susceptible of a
construction other than that which the Petriccianis and the trial court have placed upon it; that
since it is ambiguous, its construction becomes a question of intent, a question of fact for
determination upon trial; citing Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62. The validity of
this contention would appear to depend upon whether the paragraph is reasonably subject to
the second construction.
The construction given by the Petriccianis and accepted by the trial court was that if any
one of the three lessees was unable to secure the necessary licenses, the lease was thereby
rendered void. The construction contended for by Parman is that if any one of the three
lessees could obtain a license, the lease would continue operative and in full force for his
benefit.
[Headnotes 3, 4]
All parties appear to recognize that one may not serve as an active or interested party to a
gaming operation in this state unless properly licensed; that no one of the original lessees
under the lease in question could, therefore, continue as lessee unless he was properly
licensed. Parman's construction, then, is equivalent to saying that by the paragraph in
question the Petriccianis have stated that they are as willing to continue the lease to any
one of their three lessees, individually and solely, as they are to the three combined.
saying that by the paragraph in question the Petriccianis have stated that they are as willing to
continue the lease to any one of their three lessees, individually and solely, as they are to the
three combined. Such construction is, we feel, not only contrary to the apparent intent of the
paragraph as expressed, but, under the circumstances surrounding the lease, is unrealistic to
the point of being wholly unreasonable.
The lease, as we have noted, specified rental of over a half million dollars. Parman, in a
deposition which forms a part of the record on motion for summary judgment, testified that it
had been agreed between the three lessees that he was not to put up any money in the
operation of the business; that he personally was financially unable to perform the terms of
the lease; that the down payment of $10,000 provided by the terms of the lease had been paid
by the other lessees. Clearly the three lessees in combination possessed attributes essential to
performance which would not be possessed by Parman alone. To accept as reasonable the
construction for which Parman contends would in this case be to impute to the Petriccianis a
blithe lack of concern with the financial responsibility of their lessee. The existence of such
an unbusinesslike attitude, as we shall note, is wholly inconsistent with the facts.
Parman contends that his construction of the paragraph is borne out by conduct of
Petricciani subsequent to execution of the lease. We find no merit in this contention. The
actions of Petricciani upon which Parman relies most heavily are discussed later in this
opinion in our consideration of his second principal contention. In our view they clearly
support the construction adopted by the trial court and in that respect render wholly
insignificant other minor inconsistencies of conduct cited by Parman which we do not,
accordingly, deem it necessary to discuss.
The paragraph in question not being reasonably subject to the construction for which
Parman contends, cannot be said to be ambiguous in that regard.
cannot be said to be ambiguous in that regard. The agreement speaks for itself and the true
intent of the contracting parties cannot be said to constitute a genuine issue of fact.
Second: Parman contends that a genuine issue has been raised as to whether the
Petriccianis have waived their rights to assert forfeiture of the lease and by their conduct are
estopped to deny that it continues to run to Parman as sole lessee. He asserts that he relied to
his detriment upon actions of the Petriccianis affirming the lease notwithstanding failure of
Pechart and Kessel to secure licenses and upon representations that his rights under the lease
were to continue. The Petriccianis contend that if representations were made, they were not to
the effect that the old lease would continue with Parman as sole lessee, but rather were to the
effect that a new lease would be granted with new parties substituted for Pechart and Kessel.
This distinction, considering the nature of this action, is a vital one. This is not a suit for
specific performance to compel the giving of a promised new lease. It is an action to establish
that the executed lease continues in effect with Parman as sole lessee. If the representations
did in fact relate to a new lease, the court could not properly concern itself with them, nor
with the question whether, under any conceivable state of facts, such representations were
wrongful or actionable or unconscionable. With this distinction in mind we turn to the
representations upon which Parman relies as shown by his own testimony upon deposition.
Did these representations relate to the giving of a new lease with new parties as lessees or to
the continuance of the old lease with Parman as sole lessee?
Parman testified as follows:
Q. Did you ever discuss the matter of a lease with Mr. Petricciani at any time? * * * I am
talking about the year 1953. A. I discussed getting Mr. Magee on the lease. * * *
Q. What did you talk to him about? A. To try to get Mr. Magee on the lease if Mr. Kessel
and Pechart dropped out of the picture. * * *
Q. That was in the event that Pechart and Kessel got off the lease would he take Mr.
Magee in as a party to the lease? A. That is right. * * *
Q. And what did you say and what did Mr. Petricciani say? A. * * * I can't tell you the
exact conversation, but I spoke about Mr. Magee and if Pechart and Kessell should drop out, I
would like to have him consider a man by the name of Magee who had sufficient capital to
finance me in this deal. * * *
Q. In the conversation that you had with Mr. Petricciani did you discuss the terms of the
lease under which Mr. Magee, as you say, wanted to become a party to the lease? A. We
discussed something at Mr. Magee's house one day.
Q. And what was that to your best recollection? A. Mr. Ferris, Howard Ferris, was the
one who done most of the talking with regard to a proposition with Mr. Petricciani in which
Mr. Petricciani would get 25% and the rent would be $5,000 a month, that is a guaranteed
five thousand a month. Mr. Petricciani didn't agree to it, or he didn't disagree to it. He didn't
admit anything.
Q. Was that deal satisfactory to you at that time, $5,000 a month and 25%? A. Yes, it was
at that time.
Q. Who was present at that meeting? A. Mr. Petricciani, Mr. Ferris, Mr. Magee and
myself.
Q. Was anything said at that meeting as to who was to draw up a lease with those
provisions in it, or when it was to be done, or anything like that? A. No, it was just a
discussion to see if Mr. Magee could get on the lease to take up Pechart's and Kessel's
interests.
Q. Do you remember any other conversation that you had with Mr. Petricciani or Mrs.
Petricciani in respect to the lease? A. Yes. I went down to Mr. Petricciani's house one
afternoon and he asked me if I was going through with the license, and I said, Yes, I was,' so
his boy Silvio at the same time asked me, 'Are you going through with this lease?' and I
said, 'Yes, I am.' He said, 'Do you have enough capital, enough bank-roll to go through
with this deal?' and I said, 'Yes, I have plenty of money behind me, financial backing,' and
he said, 'Would you mind telling me who this man is?' and I said, 'No, I don't care to
disclose his name at this time,' and he said, 'That is all right, I just asked you.'
was,' so his boy Silvio at the same time asked me, Are you going through with this lease?'
and I said, Yes, I am.' He said, Do you have enough capital, enough bank-roll to go through
with this deal?' and I said, Yes, I have plenty of money behind me, financial backing,' and he
said, Would you mind telling me who this man is?' and I said, No, I don't care to disclose
his name at this time,' and he said, That is all right, I just asked you.'
Q. Was that the extent of that conversation? A. We discussed different things about Reno
and Las Vegas and one thing and another and Mr. Petricciani said, Walter, I will make you a
good landlord,' and I said, I will make you a good tenant, John.'
[Headnote 5]
This testimony, we feel, shows beyond question of a doubt that both Parman and
Petricciani had in mind at all times a new lease or a modification of the old lease with Magee
or someone else suitable to Petricciani as lessee in place of Pechart and Kessel. Never did
Petricciani represent a willingness to continue Parman as lessee without regard to additional
financial support. In each instance the question of such support was raised and discussed. It
was taken for granted by both Parman and Petricciani. Parman, then, was given no assurance
upon which he could reasonably assume anything but a willingness on the part of Petricciani
to enter into a new lease with new parties, providing the new parties met with Petricciani's
approval. No waiver or estoppel relating to the old lease has, then, been established.
As conduct amounting to an affirmance of the lease Parman relies upon the repayment by
the Petriccianis to Pechart and Kessel of the sum of $10,000 paid by them upon execution of
the lease. The lease provided that this sum was to be retained by the lessors whether or not
the lease becomes effective. Upon its return to Pechart and Kessel releases were signed by
them of any rights they might have had under the lease.
There is no issue of fact here. The question is whether inferences favorable to Parman may
reasonably be drawn as to the significance of the transaction and the intent of the parties
thereto. Parman's interpretation of the transaction is that Pechart and Kessel were thereby
released as lessees leaving Parman as surviving lessee under a continuing lease.
[Headnote 6]
In considering this contention we must not lose sight of the fact that by virtue of defaults
in the securing of licenses required by the lease, the lease was rendered null and void or, at
the least, subject to termination. Parman's position is that notwithstanding the status of the
lease, Petricciani by his conduct affirmed its continuance and is estopped to deny such
continuance. The transaction in question is asserted to constitute such affirmance. It is not
enough, then, that by regarding it in a certain light it may be found consistent with
affirmance. It must itself speak that affirmance. No express affirmance is claimed. In our
view the transaction is entirely consistent with termination of the lease. It can hardly, then, be
said to imply an affirmance.
Assuming an intent on the part of Petricciani to continue the lease in full force and effect,
he would hardly be likely not only to release the only financially responsible parties to it, but,
as well, voluntarily to bid them God-speed by returning their deposit. The only possible
construction, in our view, is that the transaction was nothing more than a voluntary return, to
those who had made it, of a substantial payment made in expectation that the lease would
become effective: action consistent only with a general recognition by all parties to the
transaction that the lease was at an end.
Parman seems to find something sinister in this willingness on the part of Petricciani to
pay $10,000 which he was not legally obligated to pay. The record indicates that the payment
was made pursuant to an oral understanding and that a similar deposit was secured from the
new lessee with whom Petricciani subsequently dealt.
dealt. We find nothing sinister in one's willingness to live up to the terms of an understanding
with which he could not legally be compelled to comply.
Parman insists that the trial court has misconceived the function of summary judgment and
has in this case improperly proceeded on the hearing to resolve issues which should only have
been resolved on trial. Many judicial statements of the function of summary judgment have
been quoted, all of which we approve.
In Doehler Metal Furniture Co. v. U.S., C.C.A.2d, 149 F.2d 130, 135, it is stated, We
take this occasion to suggest that trial judges should exercise great care in granting motions
for summary judgment. A litigant has a right to a trial where there is the slightest doubt as to
the facts * * *. Such a judgment, wisely used, is a praiseworthy time-saving device. But,
although prompt despatch of judicial business is a virtue, it is neither the sole nor the primary
purpose for which courts have been established. Denial of a trial on disputed facts is worse
than delay.
In Griffith v. William Penn Broadcasting Co., Dist. Pa., 4 F.R.D. 475, 477, it is stated,
The presence of a real and material issue of fact precludes further consideration of the matter
under this rule [56]. * * * It is not sufficient that the court may not credit the evidence to be
offered or that the weight of the evidence is clearly in favor of one party. Under such
circumstances the parties are entitled to a trial by jury to determine the facts.
[Headnote 7]
There can be no question as to these well-established principles. Summary judgment may
not be used as a short cut to the resolving of disputes upon facts material to the determination
of the legal rights of the parties. We are not here concerned with such a factual dispute,
however.
For the purpose of our decision we have accepted as true the facts alleged and deposed
most favorable to Parman's position.
Parman's position. Yet he cannot be said to have demonstrated any rights under the lease. No
genuine issue of fact can be said to have been raised.
____________
70 Nev. 437, 437 (1954) Carlson v. McCall
FREDA CARLSON, Appellant v. T. A. McCALL,
Respondent.
No. 3739
June 24, 1954. 271 P.2d 1002.
Appeal from the Fifth Judicial District Court, Nye County; Wm. D. Hatton, Judge.
Action by a wife to quiet title to ranch property as against defendant claiming title by
virtue of execution sale. From a judgment for defendant, plaintiff appealed. The Supreme
Court, Eather, C. J., held that evidence sustained finding that property, which had been
acquired by husband and wife after marriage and had been taken in name of both parties, was
community property of husband and wife and was subject to execution to satisfy judgment
upon community obligation.
Affirmed.
George E. Marshall, of Las Vegas, and Luke J. McNamee, of Los Angeles, California, for
Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
All property acquired after marriage, by either husband or wife, or by both, is presumed to be community
property, and burden is on that party who would claim it as separate property to overthrow presumption.
Property or money once part of community will be presumed, as against creditors, to remain such until
shown by clear, certain, and convincing proof to have been transmuted into separate property.
It is not duty of reviewing court to instruct trier of facts as to which witnesses, and what portions of their
testimony, are to be believed.
In action by a wife to quiet title to ranch property as against defendant claiming title by virtue of an
execution sale, which had been acquired by husband and wife after marriage and had been taken in name of
both parties, evidence sustained finding that such property was community property of husband and wife
and was subject to execution to satisfy judgment upon community obligation.
OPINION
This is a suit to quiet title to a certain ranch property in Ash Meadows, Nye County,
Nevada. The question involved upon this appeal is whether the Ash Meadows Ranch was the
separate property of Freda Carlson or was community property and subject to execution to
satisfy a judgment upon a community obligation. The Fifth judicial district court of the State
of Nevada decreed that the property levied on was community property of O. H. Carlson and
Freda Carlson and subject to execution; that by virtue of execution sale the title to said
property became vested in T. A. McCall, trustee. Judgment was rendered against the plaintiff
Freda Carlson, who has taken this appeal.
The following are the material facts which the court was entitled to consider:
On the first day of June, 1945, J. D. Masten and his wife Julia Masten, filed suit in the
Fifth judicial district court of the State of Nevada, in and for the county of Nye, being case
No. 5413, and at the same time attached the property, subject of this litigation, known as the
Ash Meadows Ranch. O. H. Carlson, defendant in that action, is the husband of Freda
Carlson, appellant herein. The Carlsons were married in 1925 and ever since have been and
now are husband and wife. At the time of the attachment, O. H. Carlson and Freda Carlson
were the record owners of this property.
the attachment, O. H. Carlson and Freda Carlson were the record owners of this property. The
suit filed by the Mastens against Carlson was based upon a judgment obtained by Masten
against O. H. Carlson in California in 1933. On August 9, 1948, Masten obtained judgment
against O. H. Carlson in Nevada, in action No. 5413, in the district court of Nye County, in
and for the State of Nevada, and the property previously attached was sold on execution sale
to the defendant T. A. McCall upon his bid of $20,000.
After the attachment was levied and on July 26, 1945, O. H. Carlson by quitclaim deed
conveyed his interest in the attached property to his wife, the appellant, Freda Carlson, who
now brings this action to quiet her title. The substance of her cause of action is that on June 1,
1945, the property was all hers and O. H. Carlson had no interest in it, although he appeared
as one of the record owners.
An examination of the record reveals that the respondent McCall owned this property
originally.
According to McCall, in 1937 he purchased some mining machinery from O. H. Carlson.
Carlson gave McCall a bill of sale, signed by Carlson's son, Ivan Carlson. To secure payment
of the balance of the purchase price, McCall executed a mortgage on the Ash Meadows
Ranch, in favor of Freda Carlson, in the sum of $1,800, payable February 25, 1939. McCall
testified that all of his dealings were with O. H. Carlson; that the machinery was, in fact, the
property of O. H. Carlson, and that the bill of sale came from Ivan Carlson, and the mortgage
was in favor of Freda Carlson at the request of and for the protection of O. H. Carlson, who
had been adjudicated a bankrupt in 1934, and was merely attempting to protect himself; that,
at the very time all of these transactions took place, the Mastens had an outstanding judgment
in the amount of some $39,000 against O. H. Carlson, which judgment had never been
satisfied.
O. H. and Freda Carlson, in their testimony, denied that O. H. Carlson ever had any
interest in the machinery and asserted that it all belonged to Freda Carlson.
that O. H. Carlson ever had any interest in the machinery and asserted that it all belonged to
Freda Carlson.
McCall could not meet his payments on the note, and by 1941 the Carlsons were
threatening foreclosure of the mortgage. An amicable arrangement was worked out between
the parties whereby McCall deeded the ranch to O. H. Carlson and Freda Carlson, and took
back from them a lease and option to buy. It was understood by all that if McCall raised
sufficient money to pay his indebtedness to the Carlsons by the end of the lease period, he
was to get the ranch back. McCall did not raise the required money within the option period,
and the property was left standing in the names of O. H. Carlson and Freda Carlson, with
McCall having forfeited all his interest therein. McCall subsequently brought an action to
establish an equitable mortgage in the property. McCall lost his suit, and the title was quieted
in O. H. Carlson and Freda Carlson, in this same action on June 26, 1945. Such was the state
of title at the time the Mastens attached the property.
[Headnote 1]
All property acquired after marriage, by either husband or wife, or by both, is presumed to
be community property, and the burden is on that party who would claim it as separate
property to overthrow this presumption. Before the presumption may be overthrown the
evidence must be clear and satisfactory.
[Headnote 2]
We believe that no other safe rule can be laid down than that property or money once a
part of the community will be presumed, as against creditors, to remain such until shown by
clear, certain, and convincing proof to have been transmuted into separate property. Lake v.
Bender, 18 Nev. 361, 4 P. 711, 7 P. 74. it is conceded that property acquired during coverture
presumably belongs to the community. The burden is on the person claiming it as separate
property to overcome this presumption by proof sufficiently clear and satisfactory to
convince the court of the correctness of such claim.
presumption by proof sufficiently clear and satisfactory to convince the court of the
correctness of such claim.
Chief Justice Hawley, in an opinion filed in Lake v. Bender, supra, 18 Nev. at page 401, 4
P. at page 735, quoted approvingly as follows from Meyer v. Kinzer, 12 Cal. 247, 73 Am.
Dec. 538:
The presumption, therefore, attending the possession of property by either, is that it
belongs to the community; exceptions to the rule must be proved. * * * This invariable
presumption which attends the possession of property by either spouse during the existence of
the community, can only be overcome by clear and certain proof. * * *
And in In Re Warner's Estate, 167 Cal. 686, 140 P. 583, 584, the court said:
It is undoubtedly true that the presumption which attends the possession of property by
either spouse may only be overcome by clear and certain proof that it is really separate
property.
See also Milisich v. Hillhouse, 48 Nev. 166, 228 P. 307; Laws v. Ross, 44 Nev. 405, 194
P. 465; Jones v. Edwards, 49 Nev. 299, 245 P. 292; Petition of Fuller (Brine v. Fuller), 63
Nev. 26, 159 P.2d 579 and cases cited therein.
The plaintiff in this case was confronted with the necessity of overthrowing the
presumption of law that the Ash Meadows Ranch property was community property. It may
be observed that it appears from the opinion of the trial judge, which is incorporated in the
record, that he rejected the testimony of Freda Carlson. The trial judge filed a long opinion,
showing studious and careful consideration of the facts.
Can we say, in view of the circumstances, that there was such clear and certain or
convincing proof that the property was the separate property of the plaintiff? The trial court
held that there was not, and we think it was justified in its conclusion.
[Headnote 3]
The property was acquired by the parties after marriage and was taken in the name of both
parties, so a presumption would arise that the property was community. The plaintiff
presented evidence as to the source of the funds used in its acquisition. This testimony the
trial court found to be full of inconsistencies which reflected upon its credibility. In his
opinion the trial judge made it plain that he did not feel the weight of this testimony was
sufficient to overcome the presumption. Appellant contends that in many important respects
the testimony was undisputed and wholly credible. However, in such a case as this, the duty
of the trier of facts is to assess the credibility of witnesses and to determine what weight their
testimony should have. It is not for this court to instruct the trier of facts as to which
witnesses, and what portions of their testimony, are to be believed. Kitselman v. Rautzahn, 68
Nev. 342, 232 P.2d 1008; Canepa v. Durham, 65 Nev. 428, 198 P.2d 290; Canepa v. Durham,
supra, 65 Nev. at pages 452, 453, 202 P.2d 286; Curti v. Franceschi, 60 Nev. 422, 111 P.2d
53, 112 P.2d 819.
[Headnote 4]
The trial court, in deciding the case, applied the correct principles of law; Petition of Fuller
(Brine v. Fuller), 63 Nev. 26, 159 P.2d 579; Veterans' Welfare Board v. Liebhart, 50 Cal.App.
179, 122 P.2d 693; In Re Rolls' Estate, 193 Cal. 594, 226 P. 608; In Re Jolly's Estate, 196
Cal. 547, 238 P. 353; de Funiak, Principles of Community Property, Vol. 1, page 140, and
cases cited therein, and we cannot say that it erred in its findings of fact.
From a consideration of the entire record it is clear that the judgment and the order
denying new trial must be affirmed, with costs.
It is so ordered.
____________
70 Nev. 443, 443 (1954) Johnson v. Watson
NORMAN C. JOHNSON and HELEN M. JOHNSON, Plaintiffs-Appellants, v. HAROLD
WATSON and THRESA WATSON, Defendants-Respondents.
No. 3795
July 9, 1954. 272 P.2d 580.
Appeal from the Fifth Judicial District Court, Mineral County; Wm. D. Hatton, Judge.
Vendor brought action against purchaser for breach of oral agreement to purchase
improved real property and furnishings thereon, attaching written memorandum of the
agreement to the complaint. Motion by purchaser to dismiss the complaint was granted by the
Fifth Judicial District Court, Mineral County, William D. Hatton, Judge, and vendor
appealed. The Supreme Court, Eather, C. J., held that the written memorandum sufficiently
described the property to be sold and stated all the essential elements of the loan with
reasonable certainty and that it was sufficient to satisfy the statute of frauds.
Reversed.
Hawkins, Rhodes & Hawkins, of Reno, for Appellants.
L. E. Blaisdell, of Hawthorne, for Respondents.
1. Frauds, Statute of.
Where a written memorandum of agreement for the sale of land described the property to be sold by
street and number and town and state appeared in the caption, the description was sufficient to satisfy
statute of frauds. N.C.L.1929, sec. 1529.
Where a written memorandum of agreement for the sale of land, provided for a total price, a down
payment and terms of payment of the balance, the essential terms and conditions were stated with the
reasonable certainty required by statute of frauds. N.C.L.1929, sec. 1529.
3. Evidence.
Where a written memorandum of agreement for the sale of land provided for monthly payments not to
exceed $100 or more per month, the words or more created an ambiguity that could be resolved by parol
testimony.
A memorandum need not contain those elements which become a part of the obligation by implication of
law, custom, or past practice, and it need not state all the details or particulars of the agreement; a
statement of the substance of this agreement in general terms is sufficient.
5. Frauds, Statute of; Vendor and Purchaser.
Where a written memorandum of agreement for the sale of land stated the essential terms and conditions
with reasonable certainty, the supplementary details such as form of security, the manner of closing and the
time of performance could be shown by parol or would be implied by law or custom.
OPINION
This case concerns the sufficiency under the statute of frauds of a written memorandum of
agreement. Appellants, as plaintiffs, brought suit for damages against defendants, now
respondents, alleging breach of an oral agreement to purchase improved real property and
furnishings therein. A written memorandum of the agreement was attached to the complaint.
Defendants challenged the sufficiency of the memorandum by moving to dismiss the
complaint. This motion was granted, and plaintiffs appealed.
Two primary objections to the sufficiency of the memorandum are made: That the
description of the property is inadequate; and that the consideration and loan provisions are
not stated with certainty. The memorandum is as follows:
Hawthorne, Nevada
November 15th, 1952
CONTRACT OF SALE
Received of Harold and Thresa Watson..................... Five Hundred Dollars and a 1952
DeSota car........ (Value $3,000.00)...... for which Watson will furnish a bill of sale and the
pink slip which has just recently been sent to Carson City for showing ownership in his
name............ This is the down payment on 385 G. Street, house and furniture. Total sale is
$15,000.00. Balance payment is to be $100 per month together with 6% on unpaid
balance.
payment is to be $100 per month together with 6% on unpaid balance. It is agreed that
Watsons will sign a loan in case N. C. Johnson said seller is able to produce one. Johnson is
to carry back as a second the balance due over and above loan at 6% and said monthly
payment shall not exceed $100 or more per month. Taxes and insurance to be pro-rated.
Escrow charges to be equally divided between buyer and seller, excepting Seller shall paid for
guaranty insurance title.
Buyers Seller Helen N. Johnson
Harold Watson Norman C. Johnson
Thresa Watson Broker E. S. Babcock
The applicable statute is sec. 1529, N.C.L.1929, which reads:
Every contract for the leasing for a longer period than one year, or for the sale of any
lands, or any interest in lands, shall be void, unless the contract, or some note or
memorandum thereof, expressing the consideration, be in writing, and be subscribed by the
party by whom the lease or sale is to be made.
The applicable general principle of law, as set forth in sec. 207 of the Restatement of the
Law of Contracts and quoted in Stanley v. Levy & Zentner, 60 Nev. 432, 112 P.2d 1047,
1053, 158 A.L.R. 76, is:
A memorandum, in order to make enforceable a contract within the statute, may be any
document or writing, formal or informal, signed by the party to be charged or by his agent
actually or apparently authorized thereunto, which states with reasonable certainty, (a) each
party to the contract either by his own name, or by such a description as will serve to identify
him, or by the name or description of his agent, and (b) the land, goods or other
subject-matter to which the contract relates, and (c) the terms and conditions of all the
promises constituting the contract and by whom and to whom the promises are made.
[Headnote 1]
The property is here described by street and number, the town and state appearing in the
caption. Such a description is generally regarded as sufficient.
description is generally regarded as sufficient. 37 C.J.S., Frauds, Statute of, p. 673, sec. 188;
Tobin v. Larkin, 183 Mass. 389, 67 N.E. 340; Montgomery v. Graves, 301 Ky. 260, 191
S.W.2d 399, 23 A.L.R.2d 39; contra, Martin v. Seigel, 35 Wash.2d 223, 23 A.L.R.2d 40, 212
P.2d 107. The sufficiency of such a description is in accord in principle with a prior decision
of this court, Roberts v. Hummel, 69 Nev. 154, 243 P.2d 248.
[Headnote 2]
Next is challenged the definiteness of the provisions for consideration, and for secondary
loan financing. The agreement provides for a price of $15,000, with a down payment, cash
and car, of $3,500, leaving a balance of $11,500, to be paid at $100 per month with 6 percent
interest on the unpaid balance. The agreement then provides:
It is agreed that Watsons will sign a loan in case N. C. Johnson, said seller, is able to
produce one. Johnson is to carry back as a second the balance due over and above loan at 6%
and said monthly payment shall not exceed $100 or more per month.
This provision is argued by defendants to be uncertain in not specifying the rate of interest
on the alternative loan, whether the loans are to be secured by mortgage or deeds of trust,
whether the security shall cover all or only a portion of the balance due, and the meaning of
the words or more.
Assuming this provision for alternative financing is an integral part of the agreement, as
contrasted to a collateral agreement not subject to the statute of frauds, it appears that the
writing states the essential terms and conditions with reasonable certainty.
The fair implication from the entire agreement is that the interest rate on the alternative
loan will not be more than 6 percent; that the purchaser is protecting himself against monthly
payments in excess of $100 plus 6 percent, regardless of whether made only to Johnson or
apportioned between Johnson and a take-out lender.
lender. Were there no implication of interest rate, the legal rate would apply. McCarty v.
Harris, 216 Ala. 265, 113 So. 233, and the memorandum would not therefore be deficient.
The further implication of the agreement is that the Watsons will sign the particular loan
that Johnson produces, whether that particular loan be secured by deed of trust or mortgage,
and that the second would be secured like the first. There being no stipulated exception, the
entire amount due, and not merely a part of it, would be secured as is the custom with real
estate loans.
[Headnote 3]
As to the meaning of the words or more, they might refer either to the interest increment
of each payment, or to a right to repay without interest penalty. This is an ambiguity of the
writing, and may be resolved by parol testimony; it may be that these words are not even of
particular significance to the agreement, for breach of which damages are sought.
[Headnote 4]
In 37 C.J.S., Frauds, Statute of, p. 668, sec. 181, it is said:
The note or memorandum, however, need not contain those elements which become a
part of the obligation by implication of law, custom, or past practice, and it need not state all
the details or particulars, of the agreement; a statement of the substance of the agreement in
general terms is sufficient.
[Headnote 5]
In our opinion the essential elements of the respective loan provisions are stated in the
memorandum with reasonable certainty, and these are the amounts due, $11,500, and the rate
of payment, $100 per month plus interest. Supplementary details such as the form of security,
the manner of closing, and the time of performance, may be shown by parol or will be
implied by law or custom.
The only cases noted involving third-party financing to be procured by the seller support
these conclusions.
to be procured by the seller support these conclusions. Kenner v. Edwards Realty & Finance
Co. 204 Wis. 575, 576, 236 N.W. 597; Killion v. Schleifer 1 Cir., 1950, 183 F.2d 237.
In our opinion the memorandum of agreement is sufficient and the motion to dismiss
should have been denied.
The judgment of the district court appealed from is reversed with costs.
____________
70 Nev. 448, 448 (1954) Fuller v. United Electric Co.
BETTY L. FULLER, Appellant, v. UNITED ELEC-
TRIC CO., a Corporation, Respondent.
No. 3784
July 15, 1954. 273 P.2d 136.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge, Dept.
No. 2.
Action by contractor for breach of contract for installation of electrical wiring. From a
judgment for contractor, defendant appealed. The Supreme Court, Merrill, J., held that
contract providing for payment of 80 percent of contract price upon completion of rough-in
and balance upon final completion was one entire contract and that proper measure of
damages for breach after completion of rough-in was total contract price less amount it would
have cost contractor to complete performance.
Affirmed in part; reversed in part and remanded for limited new trial.
Milton W. Keefer, of Las Vegas, for Appellant.
Bonner and Rittenhouse, of Las Vegas, for Respondent.
1. Contracts.
In action for breach of contract for installation of electrical wiring, wherein evidence indicated that
municipal building inspector had approved work upon completion of rough-in, evidence sustained
finding that defendant had not been justified in terminating contract on ground of
allegedly faulty workmanship.
evidence sustained finding that defendant had not been justified in terminating contract on ground of
allegedly faulty workmanship.
2. Contracts.
In action for breach of contract for installation of electrical wiring, except for minor error which was
corrected by reviewing court evidence sustained finding as to value of extras furnished by contractor.
3. Damages.
Measure of damages for breach of contract in preventing contractor, who was not at fault, from
performing contract is total contract price less cost of performing if no work had been done, or of
completing performance if there had been partial performance.
4. Damages.
The measure of contract damages does not ensure reasonable profit or any profit beyond that provided by
contract itself.
5. Contracts; Damages.
Even though contract for installation of electrical wiring provided for payment of 80 percent of contract
price on completion of rough-in and inspection thereof and payment of balance upon final completion,
contract was an entire one and proper measure of damages for total breach thereof after completion of
rough-in was total contract price less amount it would have cost to complete performance without regard to
provisions as to schedule of payment.
OPINION
This appeal challenges the measure by which damages were awarded plaintiff below for
breach of a construction contract.
The defendant (appellant here), proposing to construct a new home in Las Vegas, entered
into a contract with the plaintiff company for installation of electric wiring. The agreed price
was $1,410 and the terms of payment were expressly stated as follows: 80% of contract
price payable on completion of rough-in and inspection thereof; balance payable on final
completion and inspection. Work proceeded under the contract to completion of rough-in.
Inspection was made by the municipal building inspector and the work was approved. The
defendant, after paying $500 on account, became dissatisfied with the plaintiff's work and
refused to permit the plaintiff to continue.
dissatisfied with the plaintiff's work and refused to permit the plaintiff to continue. The job
was completed by a different electrical contractor at considerable additional expense to the
defendant.
Plaintiff, contending that defendant was guilty of breach of contract, seeks damages under
three causes of action: first, for the sum of $1,128, being 80 percent of the contract price,
claimed as due under the contract since rough-in had been completed; second, for extras
furnished; third, for loss of profits which would have been realized had plaintiff been
permitted to complete the contract. The defendant, contending that she was justified in
terminating the contract, counterclaimed for damages suffered by virtue of plaintiff's
allegedly faulty workmanship and the necessity for employing others to complete the
contract.
The trial court, sitting without a jury, dismissed defendant's counterclaim and gave
judgment to plaintiff in the sum of $1,048.60. In its decision it states: The amount due the
plaintiff is determined to be $1410.00 according to the contract; 80% of said sum is
$1128.00; 20% profit thereon is $225.60. In conclusion the court finds that there is due and
owing to plaintiff by defendant the following:
On contract 1128.00
On extras 195.00
Profit 225.60

________

1548.60
Less $500.00 paid 500.00

________

Balance 1048.60
From that judgment defendant has taken this appeal.
[Headnote 1]
She first assigns as error the court's dismissal of her counterclaim. The court found that she
was not justified in termination of the contract; that plaintiff had not been guilty of breach;
that if there was fault in construction it was on the part of the architect and not the plaintiff.
plaintiff. While in some respects the facts are in dispute, support for this determination is
found in the record and we shall not disturb it.
[Headnote 2]
Defendant next assigns as error the court's allowance of $195 for extras. In this respect the
court's decision states: As to the extras, the proof was that on Aug. 9, 1951 an invoice was
made showing extras furnished in the sum of $314.00. The testimony of Mr. Mays, one of the
employees of plaintiff, showed that all of the extras listed in said invoice except the last four
items thereof, were furnished and installed. These items amounted to $119.00. No other
satisfactory proof being furnished the court can only find the amount of extras to be $195.00.
The record demonstrates that the last four items of extras amounted to $129, rather than $119
and that, accepting the testimony upon which the court relied, judgment upon this cause of
action should have been for $185 rather than $195. With this minor correction the record
supports the court's finding and, save for such correction, it will not be disturbed.
Defendant next challenges the allowance of damages for 80 percent of the contract price
plus 20 percent profit. Upon this point we agree that her contentions have merit.
[Headnote 3]
It is to be noted that plaintiff proceeded not in quantum meruit but for contract damages.
The generally accepted rule as to measure of damages in such a case as this is stated as
follows in Bradley v. Nevada-California-Oregon Railway, 42 Nev. 411, 420, 178 P. 906, 908:
If the breach consists in preventing the performance of the contract without fault of the other
party, who is willing and able to perform, the damage of the latter consists in two distinct
items, namely: First, what he has already expended toward performance (less materials in
hand); and, second, the profits that he would realize by performing the whole contract.
Stated in another way, the rule is that a contractor who is not in default should recover the
total price promised less the cost of performing, in case no work has been done, or of
completing performance of the work, where there has been partial performance."
in default should recover the total price promised less the cost of performing, in case no work
has been done, or of completing performance of the work, where there has been partial
performance. 5 Williston on Contracts, 3824, sec. 1363. To the same effect see 1
Restatement of the Law, Contracts, 578, sec. 346, Comment g, h; 5 Corbin on Contracts, sec.
1094. The purpose of money damages is to put the injured party in as good a position as that
in which full performance would have put him. Restatement of the Law, supra, page 574,
Comment b.
The trial court's measure of damages cannot be said to meet the requirements of the rule.
[Headnote 4]
As to profits the court found, The amount claimed by plaintiff, to-wit 20%, appears
reasonable. This might well be regarded as reasonable profit. The measure of contract
damages, however, does not ensure a reasonable profit, or, indeed, any profit beyond that
provided by the contract itself. What is allowed is the profit, if any, which would have been
realized had the contract proceeded to completion.
Under the contract's provision that 80 percent of the contract price should become payable
upon completion of rough-in, the court has allowed $1,128. It is to be noted that the breach by
defendant was not a partial breach with the contract continuing in effect notwithstanding, in
which event an installment or progress payment due under the contract might be claimed in
full. The breach was a total breach and was so treated by plaintiff. The contract was thereby
terminated.
A similar situation confronted the court in New Era Homes Corporation v. Forster, 299
N.Y. 303, 86 N.E.2d 757, 758, 22 A.L.R.2d 1338. There the contract provided a total price of
$3,075 payable in varying amounts at various stages of completion. The court stated the
question to be whether the contract was an entire contract, with one consideration for the
doing of the whole work, and payments on account at fixed points in the progress of the
job, or was * * * a severable or divisible one in the sense that, of the total consideration,
$1,150 was to be the full and fixed payment for delivery of materials and starting of work,
$1,500 the full and fixed payment for work done up to and including 'completion of rough
carpentry and rough plumbing,' and $425 for the rest."
and payments on account at fixed points in the progress of the job, or was * * * a severable or
divisible one in the sense that, of the total consideration, $1,150 was to be the full and fixed
payment for delivery of materials and starting of work, $1,500 the full and fixed payment for
work done up to and including completion of rough carpentry and rough plumbing,' and
$425 for the rest. The court then proceeded to its determination. We hold that the total price
of $3,075 was the single consideration for the whole of the work, and that the separately
listed payments were not allocated absolutely to certain parts of the undertaking, but were
scheduled part payments, mutually convenient to the builder and the owner. That conclusion,
we think, is a necessary one from the very words of the writing, since the arrangement there
stated was not that separate items of work be done for separate amounts of money, but that
the whole alteration project, including material and labor, was to be supplied for $3,075.00.'
There is nothing in the record to suggest that the parties had intended to group, in this
contract, several separate engagements, each with its own separate consideration. * * * We
think that is the reasonable ruleafter all, a householder who remodels his home is, usually,
committing himself to one plan and one result, not a series of unrelated projects. The parties
to a construction or alteration contract may, of course, make it divisible and stipulate the
value of each divisible part. But there is no sign that these people so intended. * * * We
would, in short, be writing a new contract for these people if we broke this single promise up
into separate deals; and the new contract so written by us might be, for all we know, most
unjust to one or the other party.
See also: 1 Restatement of the Law, Contracts, page 386, sec. 266, illustration 4; 3 Corbin
on Contracts, sec. 697 supplement.
[Headnote 5]
In our view the contract in this case was clearly an entire one.
entire one. The specified payment of 80 percent upon completion of rough-in was but a
scheduled part payment upon the specified contract price and was not a full and fixed
payment allocated absolutely to that portion of the work done up to completion of rough-in.
Upon a total breach, then, damages must be ascertained upon the entire contract and the total
contract price without regard to those provisions having to do with the times at which
portions of the contract price were to become payable.
Judgment upon appellant's counterclaim is affirmed. Judgment upon respondent's second
cause of action for extras is reduced by the sum of $10 and as so modified is affirmed in the
sum of $185. Upon respondent's first and third causes of action for contract damages and
profits, judgment is reversed and the matter remanded for new trial limited to a determination
of the extent of damage suffered by respondent by virtue of appellant's breach of the contract
between the parties. Appellant is awarded one-half of the costs of her appeal.
____________
70 Nev. 455, 455 (1954) In Re Knox's Estate
In the Matter of the Estate of CHARLES
BENJAMIN KNOX, Deceased.
PHYLLIS LUCILLE VILLALON, Appellant, v.
RENWICK THOMPSON, Respondent.
No. 3777
August 6, 1954. 273 P.2d 417.
Appeal from the Second Judicial District Court, Washoe County, Department No. 3; Frank
McNamee, Presiding Judge.
McCarran, Rice, Wedge and Blakey, of Reno, for Appellant.
John S. Sinai, John W. Coulman, and David P. Sinai, of Reno, for Respondent.
OPINION
Per Curiam:
This is an appeal by Phyllis Lucille Villalon from an order of the probate court admitting
to probate the will of Charles Benjamin Knox and appointing respondent Renwick Thompson
executor thereof.
The proceeding is a companion to the case of Villalon v. Bowen, No. 3778, the opinion in
which has been handed down this day. The identical facts and principles of law concededly
being involved in the two matters and the two having been consolidated for trial below, the
decision in that case is determinative of the issues here involved.
____________
70 Nev. 456, 456 (1954) Villalon v. Bowen
PHYLLIS LUCILLE VILLALON, Also Known as GERAL PHYLLIS KNOX, Appellant v.
GRANT L. BOWEN, as Special Administrator of the Estate of CHARLES BENJAMIN
KNOX, Deceased, Respondent.
No. 3778
August 6, 1954. 273 P.2d 409.
Appeal from the Second Judicial District Court, Washoe County, Department No. 3; Frank
McNamee, Presiding Judge.
Special administrator of estate of deceased brought action against alleged widow of
deceased to recover deceased's assets, which had been distributed to alleged widow, on
ground that her marriage to deceased was invalid because her prior marriage to another had
not been dissolved. From a judgment in favor of special administrator, alleged widow
appealed. The Supreme Court, Merrill, J., held that failure to disclose the fact of the prior
marriage constituted fraudulent concealment extrinsic in character which justified equitable
intervention to provide relief from the resulting judgment.
McCarran, Rice, Wedge and Blakey, of Reno, for Appellant.
John S. Sinai, John W. Coulman, and David P. Sinai, of Reno, for Respondent.
1. Marriage.
Since the Oregon legislature expressly provided by statute for dissolution by divorce of a marriage to a
felon, Oregon civil death statute providing that a person sentenced to imprisonment in the penitentiary for
life is thereafter deemed civilly dead, does not have the effect of terminating marriage of one sentenced to
life imprisonment. O.C.L.A., secs. 9-907, 23-1407.
2. Convicts.
Civil death statutes should be strictly construed. O.C.L.A., sec. 23-1407.
3. Marriage.
Marriage of one who was convicted in Oregon of second degree murder and was sentenced to life
imprisonment in the state penitentiary was not terminated by Oregon civil death statute providing that a
person sentenced to imprisonment in the penitentiary for life is thereafter deemed civilly dead. O.C.L.A.,
sec. 23-1407.
4. Marriage.
Presumption that when there has been a formal marriage, according to legal requirements, the law will
presume the competency of the parties to enter into the marriage contract and will presume that any former
marriage of either of the parties was dissolved by death or divorce, is rebuttable.
5. Marriage.
In action by special administrator against alleged widow of deceased to recover deceased's assets
distributed to her, on ground that her marriage to deceased was invalid because her prior marriage to
another had not been dissolved, evidence sustained finding that administrator overcame presumption that
when there has been a formal marriage, according to legal requirements, the law will presume competency
of parties to enter into marriage contract and will presume that any former marriage of either of the parties
was dissolved by death or divorce.
6. Divorce.
In action by special administrator against alleged widow of deceased to recover deceased's assets
another had not been dissolved, evidence sustained finding that prior marriage of alleged widow had not
been terminated by divorce.
7. Divorce.
Where prior marriage of woman was not dissolved by death or divorce, and for more than five years
before subsequent marriage of woman to another prior husband had been absent and was not known by her
to be living, statute absolving her from prosecution for bigamy because prior husband had been absent and
not known by her to be living for more than five years did not make her subsequent marriage valid.
N.C.L.1929, secs. 4066, 10138.
8. Trusts.
In action by special administrator against alleged widow of deceased to impress trust on deceased's assets
another had not been dissolved, evidence sustained finding that concealment of prior marriage by alleged
widow was with fraudulent intent and scienter.
9. Fraud.
Suppression of a material fact which a party is bound in good faith to disclose is equivalent to a false
representation, since it constitutes an indirect representation that such fact does not
exist.
since it constitutes an indirect representation that such fact does not exist.
10. Judgment.
In a suit for equitable relief from a judgment, mere failure of a party to disclose facts which, if known,
would have prevented recovery in action in which the judgment was entered, is not necessarily fraud.
11. Judgment.
Failure of a party to disclose voluntarily to court or his adversary the weakness of his own case or defense
is not justification for vacating a judgment on ground of fraud.
12. Fraud.
Even in absence of a fiduciary or confidential relationship and where parties are dealing at arm's length,
an obligation to speak can arise from existence of material facts peculiarly within knowledge of party
sought to be charged and not within fair and reasonable reach of the other party, and under such
circumstances general rule is that deliberate failure to correct apparent misapprehension or delusion may
constitute fraud, particularly where false impression has been deliberately created by party sought to be
charged.
13. Trusts.
Where alleged widow of deceased failed to disclose fact that her prior marriage to another had not been
dissolved by death or divorce at time of her marriage to deceased, and such fact was peculiarly within
knowledge of alleged widow, and no ordinary investigation could have been expected to disclose such
facts, alleged widow's failure to disclose the fact of a prior marriage when deceased's assets were
distributed to her constituted fraudulent concealment justifying impressing a trust on such assets in favor of
estate of deceased.
14. Judgment.
Fraud which will warrant equitable relief from a final and valid judgment is limited to that which is
extrinsic or collateral to the matter tried by the court which entered the judgment, and does not include
fraud in the matter on which the decree was entered.
15. Judgment.
Extrinsic fraud is fraud by reason of which there was, in fact, no adversary trial or decision of the issue
in the case, and where there has never been a real contest in the trial or hearing of the case.
16. Judgment.
Perjury alone in procuring a judgment does not constitute extrinsic fraud.
17. Judgment.
Where defeated party, having exercised due diligence, has been prevented from exposing perjury of the
successful party by some act of fraud of successful party, such act of fraud may furnish
grounds for equitable relief.
by some act of fraud of successful party, such act of fraud may furnish grounds for equitable relief.
18. Trusts.
Where alleged widow of deceased knew, at time of marriage to deceased, that her prior marriage to
another had not been dissolved by death or divorce, and fact of prior marriage was peculiarly within
knowledge of alleged widow, and no ordinary investigation could have been expected to disclose that fact,
and in probate court, in which assets of deceased were distributed, alleged widow represented herself to be
the deceased's widow, her concealment of prior marriage was extrinsic fraud and not intrinsic fraud, so
that special administrator of estate of deceased was entitled to prevail in action against alleged widow to
impress a trust on deceased's assets distributed to alleged widow.
OPINION
This is an appeal from judgment impressing a trust upon assets in the hands of appellant,
which assets had, prior to distribution, constituted the estate of appellant's deceased husband.
The essential question involved is this: the probate court having distributed the estate to
appellant as widow of the deceased, did the court below in this independent suit err in
decreeing that appellant in fact was not decedent's widow; that she had wrongfully concealed
this fact from the court and from those entitled to know and had thus fraudulently advanced
her claim to the estate; that equity should intervene to prevent her from enjoying the fruits of
her fraud by impressing upon the estate distributed to her a trust in favor of those entitled to it
under the will of decedent?
In 1946 appellant was married to Charles Benjamin Knox in Virginia City, Nevada. In
1949 she commenced a suit for divorce in Washoe County, Nevada. While that suit was
pending Knox died. Three days later, August 17, appellant, under the name of Geral Phyllis
Knox, filed her petition for letters of administration of the Knox estate.
Knox had left a will executed in 1941 naming one Renwick Thompson of San Diego,
California, as executor.
Renwick Thompson of San Diego, California, as executor. On September 4, 1949 Thompson
filed a petition for probate of the will. Appellant promptly filed objections to probate upon
the ground that the will had been executed prior to her marriage to Knox and thus had been
revoked by operation of law. She then went to San Diego and conferred with Thompson,
representing herself to be Knox's widow and sole heir at law. She prevailed upon Thompson
to file a renunciation of his right to act as executor.
Appellant, without opposition, was duly appointed administratrix and proceeded to
administration of the estate. In June, 1950 the probate court ordered distribution to her of the
entire estate.
In March, 1951 information was received by Thompson which, upon investigation,
brought to light facts casting doubt upon the validity of appellant's marriage to Knox. It was
discovered that in 1933 appellant, under her true maiden name of Phyllis Lucille Names, had
been married to one Domingo Villalon, a native of the Philippine Islands.
Upon representation to the probate court that the estate possessed a possible equitable
interest in the distributed assets, respondent Bowen was appointed special administrator. He
thereupon brought this action against appellant to recover the assets distributed to her. He
contended that the Villalon marriage had still been in effect at the time of the Knox
ceremony; that the Knox marriage was thus rendered null and void under Nevada law. He
contended that these facts had been known to appellant at the time she had secured
Thompson's renunciation and her own appointment as administratrix and distribution of the
estate to her and that she had been guilty of fraud.
On August 28, 1953, after trial without jury, judgment was rendered in favor of
respondent, holding appellant to be trustee of the estate distributed to her by the probate court
and directing that the trust estate be delivered over to respondent.
be delivered over to respondent. From that judgment appellant has taken this appeal.
This factual outline will be amplified as appellant's various assignments of error are
discussed. These we shall discuss in six divisions.
First: Appellant contends that her marriage to Villalon had been terminated prior to her
marriage to Knox by virtue of Villalon's civil death.
In 1935 in Oregon, Villalon had been convicted of second-degree murder and sentenced to
life imprisonment in the state penitentiary. Oregon law (sec. 23-1407, Oregon Compiled
Laws Annotated) provides: A person sentenced to imprisonment in the penitentiary for life
is thereafter deemed civilly dead. Our question, therefore, is as to the effect of civil death in
Oregon so far as concerns a pre-existing marriage.
Oregon law is silent upon the question. Decisions of courts of other states are rare.
Appellant directs our attention to certain authority exemplified by the cases collected in
annotation, 139 A.L.R. 1323. In these cases, however, the civil death statute was supported by
statutes relating to marriage or divorce and could not be said in and of itself to have caused
termination of the marital status. The only case cited which appears squarely in point is
Graham v. Graham, 251 Ala. 124, 36 S.2d 316, 319. The court was there faced with a civil
death statute and also with a statute providing as ground for divorce imprisonment in the state
penitentiary for two years under a sentence of seven years or longer. It held that the divorce
statute in pari materia with the civil death statute, convinces us that the Legislature did not
intend that the civil death statute should have the effect of dissolving the marital status.
[Headnote 1]
Oregon law (sec. 9-907, Oregon Compiled Laws Annotated) provides that conviction of a
felony shall be ground for divorce. In our view the Oregon legislature, having expressly
provided means for dissolution of a marriage to a felon, could not have intended the civil
death statute to have such effect.
marriage to a felon, could not have intended the civil death statute to have such effect.
[Headnote 2]
This would appear to be in accord with the general view that in absence of express
language such statutes are not to be broadly construed. In Platner v. Sherwood, 6 Johns. Ch.,
118, 129, Chancellor Kent points out that at common law civil death did not apply to persons
attainted of felony but seems to have been confined to the cases of persons professed, or
abjured or banished the realm. In 139 A.L.R. 1308, 1310, the annotator states, * * * even
where a statute has incorporated [civil death] as a part of the punishment for crime, the courts
have been reluctant to invoke it unless the express language of the statute left no escape and
compelled them to do so.
[Headnote 3]
We conclude that the Villalon marriage was not terminated under Oregon law by Villalon's
civil death.
Second: Appellant contends that the Villalon marriage was terminated by divorce prior to
the Knox marriage. The question here is essentially one of fact rather than law. Appellant's
contention essentially is that the trial court believed the wrong witnesses, a contention we
would ordinarily dismiss without discussion. The facts are, however, helpful in depicting a
full chronology of events and were established by depositions which are before us to the same
extent as they were before the trial court.
We note, therefore, that after serving a few years of his sentence Villalon was, in 1939,
deported to the Philippine Islands. In 1951 his whereabouts were ascertained by Thompson.
On October 29, 1951 he voluntarily appeared in the office of a Manila attorney for respondent
and made affidavit that he had married appellant in Vancouver, Washington in 1933; had
never heard from her since his deportation; and had never secured a divorce or annulment of
that marriage.
Subsequent to commencement of this action steps were taken by respondent to establish
these facts by the taking of Villalon's deposition.
taken by respondent to establish these facts by the taking of Villalon's deposition. In that
deposition taken in April 1952, Villalon stated that he had in truth obtained a divorce from
appellant in the Philippine Islands during the Japanese occupation in 1943; that he was unable
to obtain official proof since all court records had been destroyed; that he had understood his
affidavit to refer only to an American divorce. Opposing this deposition were the depositions
of two attorneys who had taken the affidavit and twice conferred with Villalon with reference
to the matter. They leave little doubt but that any such limitation could never have been
intended or understood to apply. The interviews and affidavit obviously were for the purpose
of determining the present marital status of Villalon and appellant. One of these attorneys
further testified that in June, 1952 Villalon had offered to retract his testimony relative to the
Philippine divorce if paid 5,000 pesos.
Fortifying respondent's position were a letter from the Philippine judge and depositions of
court officials who, while without benefit of records, nevertheless gave convincing testimony
to the effect that they had no recollection whatsoever of such a divorce proceeding; that
divorce is extremely rare in the Philippines; that had one occurred they certainly would have
recalled it, particularly one between a Filipino and an American.
Supporting Villalon's deposition were the depositions of two of his friends who had known
him since boyhood. One testified that he had taken Villalon to the lawyer (who since had
died) who had represented him in the divorce proceedings; and that he had later been shown a
copy of the divorce decree (which copy was never produced; its absence never explained).
The other testified that he had been present in court when the matter was tried and the decree
granted. The testimony of both was vague and uncertain.
The court below stated, There is no credible testimony to show any divorce or annulment
and there was overwhelming evidence to show that a divorce was not granted at the time
Villalon says there was one granted."
granted at the time Villalon says there was one granted. With this statement we are in full
accord after a study of the record.
Appellant asserts the presumption of validity of the Knox marriage, a presumption
discussed by this court, In Re Aguirre's Estate, 57 Nev. 275, 280, 62 P.2d 1107, 1109, 65
P.2d 685, where other authority was quoted as follows, When there has been a formal
marriage, according to legal requirements, the law will presume the competency of the parties
to enter into the marriage contract, and will presume that any former marriage of either of the
parties was dissolved by death or divorce. This is based on the desire of the law to protect
innocence, morality and legitimacy rather than to presume the continuance of the first
marriage. To the same effect, Parker v. DeBernardi, 40 Nev. 361, 164 P. 645, is cited.
[Headnotes 4, 5]
This presumption might well have proven decisive of the validity of the Knox marriage
had the whereabouts of Villalon or his continued existence been unknown. Ordinarily it is in
such cases that resort to the presumption is had. See note: 89 Am.St.Rep. 204. The
presumption, however strong, is clearly rebuttable (Clark v. Clark, 44 Nev. 44, 189 P. 676,
194 P. 96) and we are wholly unable to state that the trial court erred in assessing respondent's
proof of sufficient weight to overcome the presumption, aided or handicapped as it may have
been by the discredited testimony of Villalon. Certainly it cannot be said that the effect of the
presumption was to compel the court to believe appellant's witnesses rather than respondent's.
As stated by the author of the note, 89 Am.St.Rep. supra, page 206, A rule of law which
allows an artificial or technical force to be given evidence * * * beyond its natural tendency
to convince the mind, and requires courts and juries to presume as true that which probably is
false, cannot but be fraught with dangerous circumstances.
[Headnote 6]
Accordingly the finding of the trial court that the Villalon marriage was not terminated by
divorce is held to be supported by the record. It will not be disturbed.
Third: Appellant contends that notwithstanding the fact that the Villalon marriage
continued to exist, the Knox marriage was valid since for more than five years prior thereto
Villalon had been absent and not known by appellant to be living.
[Headnote 7]
Sec. 10138, N.C.L.1929, absolves appellant from prosecution for bigamy under these
circumstances but this result does not breathe life into the Knox marriage. It renders it neither
valid nor merely voidable. Under sec. 4066, N.C.L.1929, such marriages are absolutely void
without any decree of divorce or other legal proceedings. In support of her contention
appellant relies on In Re Borneman's Estate, 35 Cal.App.2d 455, 96 P.2d 182. Express
statutory provisions render that case clearly distinguishable.
We conclude that the Knox marriage was wholly void by virtue of the fact that appellant
was then married to another living person.
[Headnote 8]
Fourth: Appellant contends that, accepting that the Knox marriage was void, there is no
basis for holding that concealment of the fact of the Villalon marriage was with fraudulent
intent. She asserts that the question of the existence of that marriage itself presents vexing
questions of law and fact; that if she was in error in her belief that the marriage had been
terminated, there is nothing to indicate that such belief was not an honest one.
Again we are confronted with an issue of fact rather than law. Our question is whether
there is evidence upon which the trial court might have found fraudulent intent to have
existed.
Unquestionably such subjective and intangible matters as frame of mind or intent are
difficult to prove objectively. In our view, however, the record has successfully demonstrated
fraud. This it has done by proof of a course of conduct on the part of appellant, frequently
involving deliberate falsehood, extending from the time of the Villalon marriage to the
commencement of this suit, which course can hardly be deemed consistent with any
proposition other than a deliberate intent to conceal the fact and avoid the effect of the
Villalon marriage at all times and at all costs.
In 1937, while Villalon was still imprisoned, appellant was married to one Paul Deuell in
Vancouver, Washington, the same locality in which she had married Villalon four years
earlier. In her application for license she stated herself to be a single woman and falsified her
name and her father's name, assuming for them both the surname of Lane rather than Names.
In 1940 (Deuell having obtained an annulment of the marriage) appellant was married in
Virginia City, Nevada, to one Joseph DeRose. In her application she falsely stated that she
had never been married before. This marriage was terminated by divorce just prior to her
marriage to Knox.
In 1950, after distribution to her of the Knox estate but before the probate court had lost
jurisdiction to set it aside, appellant brought proceedings in Winnemucca, Nevada, to annul
her marriage to Villalon. She named herself in this proceeding as Phyllis Lucille Villalon,
also known as Phyllis Lucille Names. The name which she was then using and under which
she had secured distribution of the Knox estate, Geral Phyllis Knox, nowhere appeared in
the proceeding. There was nothing to connect her with the distributee of the Knox estate. A
decree of annulment was granted in January 1951.
The trial judge, with this evidence freshly before him and with the advantage of
observation of appellant in giving testimony under oath, flatly stated that she had
demonstrated such disregard for the truth as to discredit her testimony.
demonstrated such disregard for the truth as to discredit her testimony. He stated, When she
says she thought [Villalon] was civilly dead and therefore it was not necessary to obtain a
divorce from him * * * that is a fabrication. The court doesn't believe that statement and
thinks she never thought of that until this suit was commenced. The record, in our view,
supports this statement and the court's finding that appellant's concealment of the fact of the
Villalon marriage was with fraudulent intent and scienter.
Fifth: Appellant contends that, accepting a fraudulent intent or scienter, the court erred in
determining that her failure to disclose the fact of the Villalon marriage was fraudulent
conduct. She asserts that fraud by concealment can exist only where there is an obligation to
speak, such as is created by the existence of a fiduciary or confidential relationship.
[Headnotes 9-11]
The suppression of a material fact which a party is bound in good faith to disclose is
equivalent to a false representation, since it constitutes an indirect representation that such
fact does not exist. See: 37 C.J.S. 244, Fraud, sec. 16a. It is clear, however, that an obligation
to speak must exist. Thus, in a suit for equitable relief from a judgment, such as this, mere
failure to disclose facts which, if known, would have prevented recovery is not necessarily
fraud of any kind. Certainly a party's failure voluntarily to disclose to the court or to his
adversary the weakness of his own case or defense is not justification for vacating a
judgment. Ward v. Town of Southfield, 102 N.Y. 287, 6 N.E. 660; Stout v. Derr, 171 Okla.
132, 42 P.2d 136.
[Headnote 12]
Yet, even in absence of a fiduciary or confidential relationship and where the parties are
dealing at arm's length, an obligation to speak can arise from the existence of material facts
peculiarly within the knowledge of the party sought to be charged and not within the fair
and reasonable reach of the other party.
of the party sought to be charged and not within the fair and reasonable reach of the other
party. Under such circumstances the general rule is that a deliberate failure to correct an
apparent misapprehension or delusion may constitute fraud. This would appear to be
particularly so where the false impression deliberately has been created by the party sought to
be charged. See: 37 C.J.S. 245, Fraud, sec. 16b; 23 Am.Jur. 857, Fraud and Deceit, sec. 80;
Restatement of the Law, Judgments, sec. 121, quoted infra.
In the case before us the facts may truly be said to have been peculiarly within the
knowledge of appellant. No ordinary investigation could have been expected to disclose
them. In the absence of any disclosure by her she had every reason to believe that the truth
never would come to light. Cf. Toledo Scale Co. v. Computing Scale Co.; 261 U.S. 399, 67
L.Ed. 719, 43 S.Ct. 458; Graham v. Graham, 251 Ala. 124, 36 So.2d 316; Ward v. Town of
Southfield, supra. Moreover, the very reason for the peculiar obscurity of the truth was
appellant's own previous conduct of falsehood in the deliberate and continued
misrepresentation of her marital status and suppression of the truth with respect thereto over a
period of more than twelve years. Accord: Caldwell v. Taylor, 218 Cal. 471, 23 P.2d 758, 88
A.L.R. 1194.
[Headnote 13]
We conclude that failure to disclose the fact of the Villalon marriage constituted
fraudulent concealment.
Sixth: Appellant contends that, accepting that she was guilty of fraud, her fraud was not of
such a character as to warrant intervention by a court of equity; that her fraud was intrinsic
rather than extrinsic.
[Headnotes 14, 15]
By the leading case of U. S. v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93, fraud which will
warrant equitable relief from a final and valid judgment is limited to that which is extrinsic
or collateral to the matter tried by the first court, and [does not include] fraud in the matter on
which the decree was rendered."
which the decree was rendered. Extrinsic fraud is defined as fraud by reason of which there
was, in fact, no adversary trial or decision of the issue in the case; where there has never
been a real contest in the trial or hearing of the case. Accord: Confer v. Dist. Ct., 49 Nev. 18,
234 P. 688, 236 P. 1097; Murphy v. Murphy, 65 Nev. 264, 193 P.2d 850.
In 3 Freeman on Judgments (5th ed.) 2567, sec. 1233, the rule is expressed as follows: It
must be borne in mind that it is not fraud in the cause of action, but fraud in its management,
which entitles a party to relief. * * * If the cause of action is vitiated by fraud, this is a
defense which must be interposed, and unless its interposition is prevented by fraud, it cannot
be asserted against the judgment; * * *. The fraud must be in some matter other than the
issue in controversy in the action.'
Appellant asserts that if she was guilty of fraud, it was in representing herself to be Knox's
widow; that her widowhood was the very issue determined by the probate court upon her
application for letters; that any fraud relating thereto was therefore intrinsic; that while it may
have involved perjury, this itself is regarded as intrinsic fraud; that her representations to
Thompson on the occasion of her visit to him, as a result of which he renounced his right to
serve as executor, were but reiterations of the matter contained in her application for letters
and could add nothing to the factor of perjury.
[Headnotes 16, 17]
It is clear that perjury alone does not constitute extrinsic fraud. Confer v. Dist. Ct., supra;
Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061; See: Restatement of the Law, Judgments,
sec. 126, comment c. But where the defeated party, having exercised due diligence, has been
prevented from exposing the perjury by some act of fraud of the other party, such act of fraud
may furnish grounds for equitable relief. Chicago R. I. & P. R. Co. v.
P. R. Co. v. Callicotte, C.C.A. 8th, 267 F. 799, 16 A.L.R. 386, certiorari denied 255 U.S. 570,
65 L.Ed. 791, 41 S.Ct. 375; See: Electric Plaster Co. v. Blue Rapids City Township, 81 Kan.
730, 106 P. 1079, 25 L.R.A. (N. S.) 1237.
It is not alone what was said by appellant to the court and to Thompson which interests us;
it is what remained unsaid and the effect of such concealment upon Thompson. If appellant
had been under no duty to disclose the fact of the Villalon marriage, the situation might well
have been different. Under the circumstances of this case, as we have noted, appellant's
silence was equivalent to an affirmative act of fraud independent of her acts of perjury.
[Headnote 18]
Furthermore, regardless of the apparent scope of the issue determined by the probate court,
concealment of a defense relating thereto was not intrinsic fraud. It operated in this case to
deprive Thompson of a fair opportunity to defend as effectively as though he had been
forcibly restrained from attendance in court. Graver v. Faurot, C.C.A. 7th, 76 F. 257;
Caldwell v. Taylor, supra; See: 3 Freeman on Judgments (5th ed.) 2571, sec. 1234.
The applicable rules are set forth in the Restatement of the Law, Judgments. Rule 118
states the general proposition: Subject to general equitable considerations, * * * relief from a
valid judgment will be granted to a party to an action injured thereby if in the action he had
no reasonable opportunity to have determined impartially a meritorious claim or defense
which he had. Rule 121 states more specifically: Subject to general equitable
considerations, * * * equitable relief from a valid judgment will be granted to a party to the
action injured thereby if the judgment was based upon a fraudulent claim or defense which he
did not contest because he was (a) fraudulently misled by the other party to believe that he
had no claim or defense, or (b) prevented by duress from contesting it.
The rationale of the latter rule is stated in sec. 121, comment a, page 588 as follows, * * *
[T]he fact that a judgment is based upon a claim or defense known to be groundless or that
such judgment is the result of perjured evidence is not of itself sufficient for equitable relief
to a party injured thereby. Ordinarily it is a party's misfortune that he cannot produce
evidence in time to support his position and rebut the perjury of his opponent by utilizing the
normal channels by which a new trial or review can be obtained.
Where, however, a claim is fraudulently advanced and the fraud is so successful that the
other party to the action is not even aware that he has a possibility of a claim or a defense, it
may be said that he has had no reasonable opportunity to present it and this, combined with
the fraud, is a sufficient basis for equitable relief.
The fact that the other party was aware of the invalidity of his claim or defense is not of
itself a sufficient basis for equitable relief against the effects of the judgment. To permit such
relief, it is essential that there should be wrongful and misleading conduct. Such conduct
ordinarily involves perjury and frequently involves the forgery of documents. It may,
however, consist of pressing a claim known to be non-existent combined with suppressing
facts solely and peculiarly within the knowledge of the person obtaining the judgment. * * *
[E]quitable relief is granted only where the deceived person had no reasonable means of
information and where he could not have succeeded in obtaining the truth by the pursuit of
such means of information as he had. Equitable relief is most frequently granted in cases
where the successful litigant had in his power substantially all the means of information.
Among the situations stated to fall within the rule are those where a person makes a false
claim of heirship under circumstances giving it great credibility.
Accord: El Reno Mut. Fire Ins. Co. v. Sutton, 41 Okla. 297, 137 P. 700, 50 L.R.A.(N.S.)
1064; See comment note 88 A.L.R. 1201, 1207; note 21 Col.L.Rev. 268.
We conclude that appellant's concealment of the fact of the Villalon marriage was
extrinsic fraud; that equitable intervention to provide relief from the resulting judgment was
proper.
It remains to be noted in all fairness that nothing in the record reflects upon counsel for
appellant or in any way indicates that he was a party to his client's fraud. He appears simply to
have retained a belief in the truth of her statements and in her good faith which the trial court
was unable to share.
____________
70 Nev. 472, 472 (1954) Hamilton v. Southern Nevada Power Co.
WILLIAM E. HAMILTON, a Minor By and Through His Guardian Ad Litem, RALPH K.
HAMILTON, Appellant, v. SOUTHERN NEVADA POWER COMPANY, a Nevada
Corporation, Respondent.
No. 3785
August 31, 1954. 273 P.2d 760.
Appeal from judgment of dismissal and from order denying new trial by Eighth Judicial
District Court, Clark County; Frank McNamee, Judge, Department No. 1.
The Supreme Court, Badt, J., held that sixteen year old boy who, with his father, who
owned the premises, raised pipe out of well and into contact with high power tension line, the
existence of which they well knew, was guilty of contributory negligence.
Affirmed.
Charles E. Catt, of Las Vegas, and Melvin Belli, of San Francisco, California, for
Appellant.
Morse & Graves, of Las Vegas, for Respondent.
1. Electricity.
Sixteen year old boy who, with his father, who owned premises, raised pipe out of well and into contact
with high power tension line, the existence of which they well knew, was guilty of contributory negligence.
Rules of Civil Procedure, Rule 41(b); N.C.L.1929, sec. 6150.
OPINION
This appeal challenges the propriety of the trial court's order under rule 41 (b) N. R. C. P.
1
granting defendant's motion for dismissal and discharging the jury on the ground that plaintiff
was guilty of contributory negligence as a matter of law. We have concluded that the
judgment must be affirmed.
Defendant power company installed its power line in what is referred to as a dedicated
alleyway in the town of Goodsprings, Nevada. The poles were installed in the alley eighteen
inches from the property line. An eight-foot crossarm, centered on the pole, resulted in a two
and one half-foot overhang of the crossarm over the property line. The crossarm carried a
high power tension line carrying 7,200 volts, which was set six inches in from the end of the
crossarm so that the wire had an overhang of two feet over the property. The construction
used was standard. Two other wires in the circuit likewise carried 7,200 volts. All were
uninsulated. At a lower level on the poles was a secondary insulated system of 110-220 volt
circuits serving the adjacent residences. Goodsprings is a small community, with some thirty
to forty families. Although plaintiff and his family had lived in Goodsprings since 1941, they
acquired the property in question in 1944. At that time there was a well in the rear end of
the lot, close to the alley line, from which water had been pumped to an old wooden
storage tank near the house at the front of said lot.
____________________

1
* * * After the plaintiff has completed the presentation of his evidence, the defendant, without waiving his
right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon
the facts and the law the plaintiff has failed to prove a sufficient case for the court or jury. * * *
there was a well in the rear end of the lot, close to the alley line, from which water had been
pumped to an old wooden storage tank near the house at the front of said lot. In 1945
plaintiff's father constructed a pumphouse over the well and installed upon the roof of the
pumphouse and adjacent to the alley line a 1,000-gallon metal water tank. The alley edge of
such water tank was directly under the wire in question and the roof of the tank was some
thirteen feet below the wire. Plaintiff's father himself constructed the pumphouse and
installed the tank, including installation of the necessary switches and making the connection
to the defendant's secondary wires. The water pumped by electricity into the tank was used
for household purposes and for irrigating a small garden and a number of fruit trees. This
situation maintained from the time of the installation in 1945 to the time of plaintiff's injuries
February 22, 1952. During that period most of the thirty to forty houses in Goodsprings had
similar wells and from ten to fifteen were within a block of the Hamilton property. The other
wells were of the same nature. Twenty-foot lengths of pipe carried the water to the surface
and it was the custom when leaks developed in the pipes to remove and replace the same.
William Hamilton, then of the age of sixteen years and eleven months, was attending high
school at Las Vegas some forty miles from Goodsprings and lived during the week at Las
Vegas. At his father's request he came to Goodsprings over the week-end to aid in the
removal of a corroded twenty-foot length of pipe. A school friend, Dick Barnes, accompanied
him. They disconnected the pump from the pipe, raised the pipe out of the well by passing it
up through a hole in the roof of the pumphouse alongside of the tank till the lower end of the
pipe was permitted to rest on the pumphouse floor. They then went outside and plaintiff was
told by his father to mount to the top of the tank. This he did and his father then climbed to
the roof of the pumphouse. With this picture in mindthe father standing on the roof of the
pumphouse {some seven feet high) close to the tank, the boy standing on the metal roof
of the tank {some five feet higher), the length of pipe protruding from the hole and
extending alongside of the tank, with some seven feet of the pipe below the hole and
resting upon the floor of the pumphouse and the high tension power line some six to eight
feet above the boy's head and a few feet to his rearwhat happened is told simply by the
boy's father: "We both pulled the pipe straight up until it was clear of the platform * * * I
started to move it over to the edge of the building, and the electricity hit us.
pumphouse (some seven feet high) close to the tank, the boy standing on the metal roof of the
tank (some five feet higher), the length of pipe protruding from the hole and extending
alongside of the tank, with some seven feet of the pipe below the hole and resting upon the
floor of the pumphouse and the high tension power line some six to eight feet above the boy's
head and a few feet to his rearwhat happened is told simply by the boy's father: We both
pulled the pipe straight up until it was clear of the platform * * * I started to move it over to
the edge of the building, and the electricity hit us. * * *
The method of removing the pipe through the hole in the roof of the pumphouse was the
only one that could be used, as the pipe was too long to be passed through a door or window.
It was the same method used by the other people of the community. Plaintiff and his father
both knew that the wires were there but had paid little, if any, attention to them. Plaintiff's
father testified that he didn't give a thought to any wires, nor did he notice how close they
were. He was a chemist and a graduate of the University of Illinois. He had done the
necessary electrical work, installing the switches for the pump, removing a switch from a
neighboring shower house for the purpose and making the necessary connections to the
defendant's secondary line. He had installed an electrical fence around the property for the
purpose of keeping out livestock. The plaintiff had noticed the wires, knew they were there
and knew that the power used in his family's house and in the pumphouse came from the pole
supporting the wires. Plaintiff was, as noted, about sixteen years and eleven months old, a
junior in high school and doing well in mathematics, science and chemistry. He engaged in
track and other athletic sports. Appellant has presented no reason why plaintiff was not
chargeable with the same degree of care for his own protection as any reasonably prudent
person. The accident occurred about noon and there were no structures or natural objects
obstructing a clear view of the wires, which, as we have noted, were but six to eight feet
above his head as he stood on the tank.
which, as we have noted, were but six to eight feet above his head as he stood on the tank.
Section 6150, N.C.L.1929, requires that no person shall maintain any wire carrying more
than 600 and less than 15,000 volts of electricity without causing the crossarm to which such
wire is attached to be kept at all times painted a bright yellow color, or placing thereon an
enameled sign in white letters on a green background in letters not less than three inches high
the words High Voltage. The instant crossarm carried no High Voltage sign and,
although there is some dispute on the point, we think it likewise fairly appears that the
crossarm was not painted yellow. Plaintiff's father had never conveyed to the power company
any easement or right of way to maintain its power line over the premises.
At the close of the argument on the motion for nonsuit, the trial court said, among other
things:
The Court feels in this case, and can't help but come to the conclusion that the plaintiff's
inattention to the wires overhead was a contributing cause of the accident, and that his
negligence was so gross under the circumstances as to be negligence as a matter of law.
Under the circumstances, the Court feels there is no issue to bring to the jury, and that the
motion for dismissal should be granted.
There being at this point some question as to whether or not the fact was in evidence that
the crossarm was not painted, plaintiff's counsel requested leave to recall one of defendant's
employees to question him as to this fact, although it was his belief that the testimony was
already in to that effect. The court then stated, in rejecting the offer of proof:
It may be, and my decision is based primarily on the fact that there is contributory
negligence as a matter of law, and the offer of proof for that reason is rejected at this time.
After further argument by plaintiff's counsel the court said:
The Court disagrees with you, Mr. Belli. The Court is interested in the boy.
is interested in the boy. The plaintiff's contributory negligence as a matter of law, not the
father's. He was on top of the roof. He could have seen the wires if he had exercised any care
whatever. He no doubt had control of the guiding of the pipe while it was in the air. The
father certainly didn't, down below, and the boy should have thought of his own safety. Those
wires had been overhead for many years, and he played around there, grew up and knew they
were there. Anybody with common sense knows that any electric wire around your property
you should stay away from, particularly with a pipe. I don't see how the jury, following the
instructions of the Court could find other than contributory negligence. And furthermore, the
Court feels that the plaintiff's inattention was so gross as to constitute negligence as a matter
of law.
Appellant relies on Konig v. N. C. O. Ry., 36 Nev. 181, 209, 135 P. 141; Smith v. Odd
Fellows Bldg. Ass'n., 46 Nev. 48, 205 P. 796, 23 A.L.R. 38; City of Las Vegas v. Schultz, 59
Nev. 1, 83 P.2d 1040, and other authorities, to the effect that the question of plaintiff's
contributory negligence is ordinarily a question of fact to be determined by the jury; that the
mere tendency of the evidence to show contributory negligence or the mere raising of an
inference of contributory negligence or the mere suspicion of contributory negligence arising
from the plaintiff's case will not warrant the court in taking the case from the jury. This court
however in Konig v. N. C. O. Ry., supra, and Smith v. Odd Fellows Bldg. Ass'n. supra, has
recognized that the rule is otherwise if the inference of negligence on the part of the plaintiff
is so strong as to be unavoidable and conclusive. [36 Nev. 181, 135 P. 151.] Despite the
fact that the evidence does not support the trial court's finding that plaintiff had control of
the guiding of the pipe while it was in the air, that is, after it was entirely out of the hole in
the roof, it is nevertheless the fact that plaintiff, standing on the tank, with the wire in plain
view six to eight feet over his head, helped pull the pipe through the roof into such
proximity to the wire that the contact resulted.
through the roof into such proximity to the wire that the contact resulted.
Both appellant and respondent have cited and discussed in their briefs many cases decided
by the courts of last resort throughout the nation dealing with the raising of a pipe or pole or
other object or machinery that came into contact with a high power wire and resulted in death
or serious injury. Some of these cases are fairly closely in point, some are distinguishable in
greater or less degree. We feel that it would serve no purpose to discuss these cases or even to
cite them. They are the subject of many annotations and are found in the usual recent texts.
The reasoning behind most of the cases that have affirmed a nonsuit, dismissal or similar
action at the conclusion of the plaintiff's case is that a person who voluntarily approaches into
close proximity with a wire he knows to be there, or with a knowledge of whose presence he
is chargeable, does so at his own risk. In somewhat colloquial language the learned trial judge
came to the same conclusion expressed more formally by many of the courts, and somewhat
after the expression found in Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43,
45, in which Delaplaine, J., speaking for a unanimous court, said:
In accordance with these basic principles, the law does not require that a person, who
maintains even so deadly an instrumentality as a high voltage electric wire, shall anticipate at
his peril every possible fortuitous circumstance under which some person might make a
contact with the wire, resulting in injury or death. Hayden v. Paramount Productions, 33
Cal.App.2d 287, 91 P.2d 231; 18 Am. Jur., Electricity, sec. 58. Electricity is now used so
universally in city and country, in home and in business, for illumination and motive power,
and for communication and transportation, that it is a matter of common knowledge that any
line carrying electric current is dangerous to a more or less degree. The fact that a wire is
charged with electric current is notice of danger, and any person mindful of his safety should
treat it with caution.
treat it with caution. When a person voluntarily touches, or approaches nearer than a
reasonably prudent person would, an electric wire, which he knows, or which a person of
ordinary knowledge and experience would have reason to believe, is sufficiently charged with
electricity to be dangerous, and in consequence thereof he is injured, it will be assumed as a
matter of law that his own negligence contributed to the accident. Potomac Edison Co. v.
State, for Use of Hoffman, 168 Md. 156, 161, 177 A. 163, 166.
We think that appellant, who, with his father, raised the pipe into such close proximity
with the wire that the contact was made, under the circumstances recited, comes within the
rule enunciated. That his father was likewise negligent does not alter the situation.
Appellant emphasizes two points, defendant's construction of its line with an
encroachment of two feet over the premises of plaintiff's father, and defendant's failure to
comply with the statute requiring a warning sign on the crossarm or the painting of the
crossarm with a bright yellow color. Assuming for the sake of argument that each of these
two items constituted negligence on the part of the defendant, plaintiff's contributory
negligence would still defeat a recovery. The merits of appellant's contentions as to the
defendant's negligence in these respects need therefore not be discussed.
We conclude that the order of dismissal was proper and that such order and the order
denying new trial must be affirmed with costs. It is so ordered.
____________
70 Nev. 480, 480 (1954) Saunders v. State
FRANK L. SAUNDERS and GRACE M. SAUNDERS, Husband and Wife, Appellants, v.
THE STATE OF NEVADA on Relation of its DEPARTMENT OF HIGHWAYS,
Respondent.
No. 3794
September 17, 1954. 273 P.2d 970.
Appeal from judgment of Second Judicial District Court, Washoe County; Harold O.
Taber, Judge, Department No. 3, condemning lands of appellants for highway purposes and
awarding appellants $21,105 for the taking; and from order denying new trial.
The Supreme Court, Badt, J., held that defendants by consenting to entry of order for
immediate possession had waived constitutional requirement that just compensation must be
first made or secured before private property may be taken for public use, but that they were
entitled to interest from the date of the taking prior to judgment.
Affirmed as modified.
Ernest S. Brown, of Reno, for Appellants.
W. T. Mathews, Attorney General, Geo. P. Annand, Wm. N. Dunseath and John W. Barrett,
Deputy Attorneys General, for Respondent.
1. Eminent Domain.
Awarding compensation for land and buildings condemned for highway purposes on basis of testimony of
expert witness for state without considering capitalization of rentals as an element in fixing value of such
property did not result in the taking of such property without just compensation where witness testified that
it would be unwise to capitalize rentals at current high level which would not continue. Const. art. 1,
sec. 8.
2. Eminent Domain.
In proceeding to condemn land for highway purposes, agreement by counsel for owners to entry of order
for immediate possession without raising question of security for compensation waived constitutional
requirement that just compensation must be first made or secured before private property may be taken for
public use. N.C.L.1929, sec. 9162, Const. art. 1, sec. 8.
3. Eminent Domain.
Constitutional right to have just compensation made or secured before private property may be taken for
public use is a personal right for the benefit of property owner and may be waived by him. Const. art. 1,
sec. 8.
4. Eminent Domain.
Where order was entered giving state immediate possession of land condemned for highway purposes
before judgment awarding compensation for the taking of such property owners were entitled to interest on
such award from the date of the taking prior to judgment. N.C.L.1929, sec. 9162, Const. art. 1, sec. 8.
OPINION
The trial court, without a jury, ordered a condemnation for highway purposes of a strip of
land condemning 1.532 acres out of a total tract of 33.52 acres owned by appellants. The
parcel condemned contained two buildings and left two buildings remaining upon land not
condemned. The court awarded judgment in favor of appellants for $21,105, being the sum of
the two amounts of $20,543, the value of the land condemned (including the improvements),
and $562 as severance damage. The latter sum was identified as being the cost of installing a
new water supply for the two buildings not condemned. The judgment was entered October 6,
1953 and, under our statute, would bear interest from that date. An order for immediate
possession however had been entered after hearing on July 25, 1953, effective September 1,
1953. Appellants have been out of possession of the parcel condemned since the latter date.
Appellants assign as error (1) that the award of damages did not constitute just
compensation and (2) that the order for immediate possession without providing that
compensation first be made or secured was in violation of our constitutional provision.
1
Further amplifying these assignments of error, appellants conclude their opening brief by the
assertion (1) that just compensation failed "because the element of rentals was omitted
from the determination of the market value of the property," and {2) that the failure to
assess damages and require the payment thereof or secure such payment deprived the
court of jurisdiction to make the order for immediate possession.
____________________

1
* * * nor shall private property be taken for public use without just compensation having been first made,
or secured, except * * * . Nevada Constitution, Art. I, sec. 8; N.C.L.1929, sec. 29.
compensation failed because the element of rentals was omitted from the determination of
the market value of the property, and (2) that the failure to assess damages and require the
payment thereof or secure such payment deprived the court of jurisdiction to make the order
for immediate possession. The summation in appellants' closing brief is (1) that just
compensation failed because of the failure of the court to consider capitalization of rentals as
an element in fixing value and (2) that the order for immediate possession was further invalid
because the court refused to hear evidence of damage (on the motion for immediate
possession) tendered by the respondent.
At the close of the trial on the merits the court made the following order from the bench:
This matter was tried by the Court without a jury. All preliminary resolutions and
conditions precedent to condemnation were stipulated to at pre-trial conference. The only
issue for determination is the value of the property taken and severance damage, if any. Both
sides produced experts who gave their opinion on this issue, and the Court is satisfied that the
opinion of the State's expert is supported by the soundest reasoning. It is, therefore ordered
that the defendants have judgment against the plaintiff in the sum of $21,105.00 together with
their costs and disbursements. Defendants' counsel will prepare proposed findings and
judgment.
[Headnote 1]
1. The court subsequently made formal findings and entered a formal judgment. Its
conclusions were based upon the testimony of the respondent's expert witness who had
practiced as a real estate broker and appraiser for thirty years, was a member of National
Right of Way and Technical Appraisers' associations and had been employed for long periods
of time by the Equitable Life Assurance Society, the appraisal section of the real estate
division of the War Department, the appraisal department of the Federal Land Bank of
Berkeley, was instructor of appraisal personnel of the National Farm Loan associations,
was chairman of the appraisal board in other large operations and had qualified and
testified as an expert in numerous condemnation proceedings in federal and state courts.
department of the Federal Land Bank of Berkeley, was instructor of appraisal personnel of the
National Farm Loan associations, was chairman of the appraisal board in other large
operations and had qualified and testified as an expert in numerous condemnation
proceedings in federal and state courts. In addition to his oral testimony, his written report
and appraisal, comprising some thirteen typewritten pages with numerous photographs and
maps attached as exhibits, was admitted in evidence by stipulation of the parties. At the
conclusion of his testimony appellants declined to cross examine. The court, however,
examined the witness at some length on points involving the witness's method of evaluating
the land and also as to his reason for failing to take into consideration comparable sales in the
vicinity. It developed that there had been none such, for which reason the witness had not
been able to use this method for purposes of his appraisal. The court further developed
through its examination the witness's recognition of the theory of a sale by a willing seller to a
willing buyer on the open market, his recognition that the sale price would be affected by the
fact that the property included rental units and that it was income property, but that in
evaluating the property he had not capitalized the rentals. He stated his reasons for not
capitalizing the rentals to assist in evaluating the propertythat the rentals were high, that the
rental situation would ease up, that it was apparent that the demand would be filled, that the
present units would command less rent, that to capitalize the rent at the present high period of
rentals would be both unsafe and unwise. Under these circumstances, under which the court
not only accepted the testimony of this witness and rejected the testimony of appellants'
witnesses but was also impressed with the sounder reasoning of respondent's witness,
appellants' authorities to the effect that it is error if the court fail to consider all elements
tending to show fair value do not apply. Under the circumstances, we are unable to say that
just compensation failed because capitalization of rentals was not used as an element in
fixing value.
say that just compensation failed because capitalization of rentals was not used as an element
in fixing value. Appellants' first assignment of error is without merit.
[Headnotes 2, 3]
2. The assignment that the court was without jurisdiction to order immediate possession
without just compensation having been first made, or secured, was not made to the trial
court. At the conclusion of the hearing of the motion for immediate occupancy an extended
discussion was had in open court in which the court and respective counsel took part.
Respondent made it clear that it desired immediately to advertise for bids and that
construction could not commence unless the two buildings were first removed by an
independent contractor. The attorney general explained to the court: We cannot move them
unless we have the permission to do so. This was in July. The court indicated its intention of
making the order effective as of September 1, so as to give appellants time to make their own
necessary arrangements. Counsel for appellants then stated: We would go along at this time
to stipulate that the court may make its order on the first day of September for immediate
possession * * *. The court: There would not be any objection to making an order now that
the Department of Highways shall have possession of the premises on September 1st? Mr.
Brown: That is right. The court: * * * That will be the order. Is there anything further?
Mr. Brown: Nothing further. Respondent contends that by reason of the foregoing
stipulation and statements of counsel, appellants clearly waived any requirement for bond as a
condition for an order for immediate occupancy. We see no escape for the conclusion that the
requirement for bond was waived. Nor could it be said to be an oversight. At the morning
session of the same day considerable time was devoted to the question of the admissibility of
evidence of damage growing out of the removal of the buildings, and counsel for appellants
in discussing the provisions of sec. 9162, N.C.L.1929, the section governing the conditions
under which an order for immediate occupancy might be made, explained his view of the
section that proof of damage was admissible simply to enable the court to fix bond.
governing the conditions under which an order for immediate occupancy might be made,
explained his view of the section that proof of damage was admissible simply to enable the
court to fix bond. Nor are we impressed with the appellants' contention that the constitutional
requirement that just compensation must be first made or secured before private property may
be taken for public use cannot be waived. Rose v. State (Cal. App.), 94 P.2d 1058; Sonken v.
Gemmill, 94 Ind.App. 114, 151 N.E. 355; 29 C.J.S. 1087, Eminent Domain, sec. 190.
Appellants seek to distinguish these cases but we think that they and many other similar cases
clearly lay down the principle that a constitutional right of this nature is a personal one for the
benefit of the property owner and subject to being waived by him.
Having concluded that appellants waived their right to bond as a condition for the order for
immediate occupancy, it becomes unnecessary to discuss the question, expounded at length in
the briefs and oral arguments of respective counsel, as to whether sec. 9034, N.C.L.1929,
providing that when the state is a party no undertaking or security shall be required of it, can
be effective in condemnation suits in view of the constitutional provision.
[Headnote 4]
As first noted in this opinion, appellants have been out of possession since September 1,
1953, the effective date of the order for immediate occupancy, but that the effect of the
judgment of October 6, 1953 is to allow appellants interest only from that date. We
apprehend that this was an oversight.
2
Interest must be paid, in a case like this, from the date
of the taking. 29 C.J.S. 1056, Eminent Domain, sec. 176, b. It does not appear that the point
was called to the attention of the trial court on the motion for new trial.
____________________

2
When asked why he did not allow for loss of rentals on the two rental units condemned by the state, the
state witness answered: It is the same as when you buy property, you are not entitled to rental after you sell it.
The state took it. They are prepared to pay for it, I assume.
No error otherwise appearing, it is ordered that the judgment of October 6, 1953, be
modified to carry interest from September 1, 1953, and that, as so modified, said judgment
and the order denying new trial be affirmed with costs.
____________
70 Nev. 486, 486 (1954) Cole v. Cole
HELEN COLE, Defendant-Appellant, v. FRANK
COLE, Plaintiff-Respondent.
No. 3807
September 28, 1954. 274 P.2d 358.
Department No. 3.
On motion to dismiss appeal for failure to docket appeal and file record within time
provided by Rule of Civil Procedure, the Supreme Court held that appellant had failed to
meet the burden of justification for extraordinary neglect in failing to docket appeal or file
record within time provided.
Appeal dismissed.
Goldberg & Birnbaum, of Syracuse, New York; and Bruce D. Roberts, of Reno, for
Appellant.
Griswold, Vargas, Dillon & Bartlett, of Reno, for Respondent.
Appeal and Error.
Where appeal was timely taken but attorneys who had represented appellant at trial withdrew and for
a period of some nine months appellant had failed to secure new counsel and proceed with her appeal,
appellant, who did not recite efforts of attempt to secure new counsel or give factual basis for
determining that she had proceeded with diligence, had failed to establish justification for extraordinary
neglect in failing to docket appeal or file record within time and appeal would be dismissed. Rules of
Civil Procedure, Rule 73(g).
OPINION ON MOTION TO DISMISS
Per Curiam:
This is before us upon motion of respondent to dismiss the appeal for failure to docket the
appeal and file the record on appeal within the time provided by rule 73(g), Nevada Rules of
Civil Procedure. Appellant has filed a counter motion for an order permitting these steps now
to be taken.
The appeal was timely taken by appellant on August 14, 1953. No further steps were taken
by her with reference to the appeal until the filing of her motion herein on July 21, 1954, after
respondent had moved dismissal of the appeal. Appellant's explanation of her neglect is that
she was without counsel, her attempts to secure counsel having been in vain until shortly
before the hearing upon these motions; that her residence is in the state of New York and her
attempts of necessity were by mail.
The attorneys who had represented appellant upon trial withdrew from the case after
judgment. A new attorney was then retained for the sole purpose of taking the appeal and
thereafter determining whether he chose to proceed with the appeal. In October, 1953, he
notified appellant that he would not proceed with the appeal and advised her that if she
desired to proceed with the matter she would have to secure other counsel.
While appellant states generally that her attempts to secure counsel were unsuccessful, she
has failed to recite her efforts in that regard or to give this court any factual basis for
determining that she had proceeded with diligence. The record contains one reference to an
unsuccessful attempt with no specification of date. We are left with the fact that from
October, 1953, until after respondent had moved for dismissal, a period of some nine months,
appellant had failed to secure counsel and proceed with her appeal in accordance with the
advice of her last attorney. Clearly appellant has failed to meet the burden of justification for
this extraordinary neglect.
neglect. Doolittle v. Doolittle, 70 Nev. 163, 262 P.2d 955; Bank of Nevada v. Drayer-Hanson,
Inc., 70 Nev. 417, 270 P.2d 668.
The motion of respondent is granted; that of appellant is denied. Appeal dismissed.
____________
70 Nev. 488, 488 (1954) Backer v. District Court
STATE OF NEVADA, on the Relation of LIZZIE BACKER, FRED D. BACKER and
WILLIAM J. BACKER, Relators, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Clark and Honorable A. S. HENDERSON,
DISTRICT JUDGE, Respondents.
No. 3821
September 30, 1954. 274 P.2d 571.
Original proceedings for a writ of mandate compelling judge who had been disqualified on
relators' affidavit for bias and prejudice to make a proper assignment of the case. The
Supreme Court, Merrill, J., held that formal written objection to proposed assignment of
action to another judge based on ground that he also was biased and prejudiced but stating no
basis for assertion of bias and prejudice was insufficient to constitute a valid objection to
proposed assignment.
Writ denied.
Guild, Busey & Guild, of Reno, for Relators.
Taylor & Gubler, and Earl & Earl, of Las Vegas, for Respondents.
1. Judges.
Under statute providing that not more than one change of judge may be granted in a civil action but
affording each party to action an opportunity to urge objections to any judge before action is so assigned,
disqualified judge has authority and duty to hear and determine sufficiency of objections urged to proposed
assignment. N.C.L.1931-1941 Supp., sec. 8407.02.
2. Judges.
Under statute providing that not more than one change of judge may be granted in a civil action but
affording a party an opportunity to urge objections to any judge before action in so assigned, formal written
objection to assignment of action to another judge based on ground he also was biased and prejudiced but
stating no basis for assertion of such bias and prejudice was insufficient to constitute a valid objection to
proposed assignment. N.C.L.1931-1941 Supp. secs. 8407, 8407.02.
3. Judges.
That parties who sought a change of judge were residents of one county and opposing parties were
residents of, and property involved was located in, county in which judge to whom action was assigned
served was insufficient to establish existence of actual bias or prejudice of judge. N.C.L.1931-1941 Supp.,
secs. 8407, 8407.02.
OPINION
This is an application for writ of mandate. It raises the question whether respondent judge,
having been disqualified from sitting in a cause, properly assigned that cause to another
judge. Relators contend that the assignment was improper and in violation of statute. They
ask that respondent be compelled by writ to make a proper assignment in accordance with
statutory requirements.
On April 21, 1954 respondent judge, sitting in a cause to which relators were parties, was
disqualified by the filing by relators of an affidavit charging that respondent entertained a bias
or prejudice against them. At a conference in chambers that day the matter of assignment to
another judge was discussed by respondent and by counsel for all parties to the action.
Counsel for relators advised that his clients would object to an assignment to Hon. Frank
McNamee, district judge of Clark County, for the reason that Judge McNamee also
entertained a bias and prejudice against them. An agreement was then reached between
counsel that the case should be assigned to Hon. Frank Gregory, district judge of Ormsby
County.
Ormsby County. On April 30, Judge Gregory advised that he could not accept the assignment.
On May 3 respondent judge ordered a hearing to permit the urging of objections, if any, to
the assignment of the cause to Judge McNamee. On May 19 that hearing was had. Relators
filed a formal written objection which contained no explanation and stated no ground or
reason. At the hearing counsel for relators also stated to the court * * * that Judge McNamee
is biased and prejudiced against the plaintiffs and in favor of the defendants and that plaintiffs
cannot receive a fair and impartial trial before Judge McNamee. No explanation of the
nature of the bias and prejudice was given. Respondent judge then ruled the objection to be
insufficient and entered an order assigning the matter to Judge McNamee.
The affidavit relating to respondent judge was filed pursuant to sec. 8407,
N.C.L.1931-1941 Supp., which provides in part as follows: A judge shall not act as such in
an action or proceeding: First, when he is a party to or interested in the action or proceeding.
Second, when he is related to either party by consanguinity or affinity within the third degree.
Third, when he has been attorney or counsel for either of the parties in the particular action or
proceeding before the court. Fourth, when he is related to an attorney or counselor for either
of the parties by consanguinity or affinity within the third degree. Fifth, if either party to a
civil action in the district court shall file an affidavit alleging that the judge before whom the
action is to be tried has a bias or prejudice either against him or in favor of an opposite party
to the action, such judge shall proceed no further therein, but either transfer the action to
some other department of the court, if there be more than one department of said court in said
district, or request the judge of some other district court of some other district to preside at
the hearing and trial of such action. * * *
The objection to Judge McNamee was urged pursuant to sec. S407.02 N.C.L. 1931-1941
Supp., which reads as follows: "Not more than one change of judge may be granted in any
civil action, whether such change be granted upon affidavit filed therefor or on the
judge's own motion, but each party to the action shall have an opportunity to urge his
objections to any judge before the action or proceeding is assigned to another judge, and
the assignment shall be to the most convenient judge to whom the objections of the
parties do not apply or are least applicable."
to sec. 8407.02 N.C.L. 1931-1941 Supp., which reads as follows: Not more than one change
of judge may be granted in any civil action, whether such change be granted upon affidavit
filed therefor or on the judge's own motion, but each party to the action shall have an
opportunity to urge his objections to any judge before the action or proceeding is assigned to
another judge, and the assignment shall be to the most convenient judge to whom the
objections of the parties do not apply or are least applicable.
Relators contend that in absence of express statutory requirement there is no more need to
provide a factual basis for one's objections than there is to provide such a basis for the
assertion of bias and prejudice in the original affidavit of disqualification. They contend that
upon their objection having been made, no further discretion remained in respondent judge;
that he was obliged by statute to assign the matter to some judge other than Judge McNamee.
[Headnote 1]
We are unable to agree with these contentions. In our view the language of sec. 8407.02 in
the light of sec. 8407, confers upon the disqualified judge the authority and duty to hear and
determine the sufficiency of the objections urged to the proposed assignment.
It is clear from Roberts Mining & Milling Co. v. Third Judicial District Court, 56 Nev.
299, 50 P.2d 512, and State ex rel. Warren v. Sixth Judicial District Court, 57 Nev. 214, 61
P.2d 6, that the provision of sec. 8407.02 that not more than one change of judge may be
granted has reference to a change to relieve from bias and prejudice (upon the fifth ground
for disqualification or the judge's own motion). It is pointed out in Roberts Mining & Milling
Co. v. Third Judicial District Court, supra, that in order to protect against abuse, some such
limitation is customary and constitutionally valid where bias or prejudice is by statute made
ground for disqualification. From this provision of limitation the legislative intent would
appear to be that a party may not accomplish more than one change of judge by means of
the unsubstantiated charge of bias or prejudice for which the statute provides.
intent would appear to be that a party may not accomplish more than one change of judge by
means of the unsubstantiated charge of bias or prejudice for which the statute provides.
Under relators' contentions, however, an unlimited number of judges could arbitrarily be
prevented from sitting by the filing of objections confined to a bare assertion of bias or
prejudice. While it may be argued that no change of judge results from such an objection,
still by proceeding before assignment, one more judge has in effect been disqualified from
acting and the disqualification has been accomplished without the safeguards of oath or
certificate of good faith required in the first instance by sec. 8407. Certainly the legislature
could hardly have meant to provide that its intended protection against abuse could by such
means be completely frustrated.
[Headnote 2]
We conclude that relators' opposition to assignment to Judge McNamee was insufficient to
constitute a valid objection under the statute.
[Headnote 3]
While the record itself is not clear upon the facts, one further question has been raised by
argument. It appears that relators' reasons for seeking disqualification of respondent judge and
urging objections to Judge McNamee are that relators are residents of Washoe County; that
opposing parties in the action to which this petition relates are residents of Clark County; that
property located in Clark County is involved in that action; that both respondent judge and
Judge McNamee are judges of the Clark County district court. These reasons apparently were
expressed to respondent at some time prior to the entry of his order of assignment to Judge
McNamee. They might, therefore, be regarded as supplementing the formal written and oral
opposition as discussed. Accepting this proposition, may these reasons be said to constitute a
valid objection? The facts as stated do not demonstrate the existence of actual bias or
prejudice.
The facts as stated do not demonstrate the existence of actual bias or prejudice. At most
they may be said to establish circumstances from which relators have inferred bias or
prejudice to exist. Relators contend that in the absence of an indication of bad faith, this
should be sufficient. In this we are unable to agree.
The fifth basis for disqualification set forth in sec. 8407 does defer to the judgment of the
litigant as to the existence of bias and prejudice in that it permits such determination in good
faith to be made by the party himself. However, we are again confronted with the apparent
legislative intent that this method of disqualification shall be available to a party but once.
The first four grounds for disqualification specify circumstances under which lack of
impartiality may be presumed to exist; circumstances under which the existence of actual lack
of impartiality need not be established. In our view, these instances having been so specified,
in the absence of such circumstances the existence of actual bias or prejudice, entertained by
the particular judge involved, is a material and necessary consideration.
The facts upon which an objection under sec. 8407.02 is based must, then, reasonably tend
to show actual bias or prejudice or that for some persuasive reason a speedy or impartial trial
before the judge in question might not be had. The facts asserted do not meet this standard.
Writ denied with costs to respondents.
____________
70 Nev. 494, 494 (1954) Union Paving Co. v. Teglia
UNION PAVING COMPANY, a Corporation,
Appellant, v. ROGER TEGLIA, Respondent.
No. 3797
October 7, 1954. 274 P.2d 841.
Appeal from a judgment of the Second Judicial District Court, Washoe County, A. J.
Maestretti, Judge, Department No. 2, decreeing specific performance.
The Supreme Court, Badt, J., held that conveyance of land in consideration of oral promise
by grantee to reconvey such land and other land previously conveyed to grantee after the
gravel had been removed therefrom constituted part performance of oral agreement within
statute providing that nothing contained in statute of frauds should be construed to abridge
powers of courts to compel specific performance of agreements in cases of part performance
thereof.
Affirmed.
John Shaw Field and Morgan Anglim, of Reno, for Appellant.
Ernest S. Brown, of Reno, for Respondent.
Complaint seeking to compel specific performance of oral contract to convey land to plaintiff sufficiently
pleaded a claim for relief in specific performance. Fed. Rules Civ. Proc. Rule 8(a), 28 U.S.C.A.; Rules of
Civil Procedure, Rule 8(a).
2. Evidence.
Oral testimony that part of the consideration for conveyance of lands was grantee's promise to reconvey
to grantor such land and land previously conveyed to grantee after the gravel had been removed therefrom
was admissible to show the true consideration for conveyance over objection that the purpose of such
testimony was to vary the terms of deeds which recited money consideration only.
Conveyance of land in consideration of grantee's oral promise to reconvey to grantor such land and other
land previously conveyed to grantee after the gravel had been removed therefrom constituted part
performance within statute providing that statute of frauds shall not be construed to abridge the powers of
courts to compel specific performance of agreements in cases of part performance of such
agreements.
performance of agreements in cases of part performance of such agreements. N.C.L.1929, sec. 1531.
Action to compel specific performance of oral agreement to convey to plaintiff land in his possession was
not barred by laches, in absence of showing that delay in commencing action resulted in any prejudice to
defendant.
Where plaintiff stood upon his contention that he had conveyed land to defendant for the express
consideration of defendant's oral promise to reconvey such land and other land previously conveyed to
defendant after the gravel had been removed therefrom, the remedy of specific performance of an oral
contract to convey, upon plaintiff's performance thereof by his conveyance to defendant, was supported
both by the pleadings and proof, notwithstanding fact that plaintiff also urged his right to a statutory decree
quieting his title, and under liberal procedure afforded by rules of practice, the pleadings and proof were
sufficient to support a recovery upon the equity claim for specific performance.
Where it was established without dispute that one parcel of land had been conveyed in consideration of
oral promise by grantee to reconvey to grantor such land and another parcel previously conveyed to grantee
after the gravel had been removed therefrom, equity could compel specific performance of agreement to
recovery both parcels of land, regardless of whether grantor was negligent in accepting oral promise.
N.C.L.1929, sec. 1531.
OPINION
[Headnote 1]
Roger Teglia, plaintiff below, filed his bill in equity to compel specific performance by
Union Paving Company, a corporation, defendant, of an oral contract to convey two parcels
of land to the plaintiff under the circumstances hereinafter recited.
1
In 1934 defendant was
engaged in performing certain paving contracts between Reno and Sparks in Washoe
County, and was in need of gravel for the purpose.
____________________

1
There is much discussion in the briefs as to the nature of the cause of action pleaded in the complaint. We
by-pass these discussions, as a claim for relief in specific performance is sufficiently pleaded under Rule 8(a)
N.R.C.P. under numerous constructions by the federal courts of pleadings under the corresponding Rule 8(a) of
the Federal Rules of Civil Procedure. See Annotations, Title 28, U.S.C.A. 262, Notes 8, 9 and 10.
In 1934 defendant was engaged in performing certain paving contracts between Reno and
Sparks in Washoe County, and was in need of gravel for the purpose. Finding such a source
of gravel on plaintiff's property, defendant purchased from him a tract of approximately 4.12
acres for an agreed consideration of $2,030, and plaintiff executed and delivered his deed for
same with a reservation of a thirty-foot strip for ingress and egress to his other property. In
1942 defendant required further gravel, and its president, who was the manager and principal
stockholder of the corporation, approached plaintiff for the purpose of acquiring additional
gravel lands. Plaintiff was reluctant to sell. He testified: This involved an alfalfa field, one of
our best strips of land along the ranch. I told him that I did not want to sell it under any
conditions. He said: We have got to have it. We are up against it. There is a time limit to
meet the contract. I have just got to have that land.' * * * Finally we came to a decision that
he would dig out the land at a certain depth that would conform with our lower field, which I
suggested if he would do that I would sell it to him at the lesser price, provided he would
convert all the land back to us after the job was finished.
It later became clear that the reference to reconveyance of all the land was to the parcel
conveyed in 1934 and the parcel conveyed in 1942. The plaintiff testified positively that the
consideration for the 1942 deed for the second parcel of land, in addition to the consideration
of $2,034.50 recited in the deed, was that the same should be executed, acknowledged and
delivered to the defendant corporation only upon its representation and promise that when it
had finished removing the gravel both parcels would be reconveyed to plaintiff, and that this
would be done after the completion of the contract and not later than January 1, 1948. The
deed of reconveyance was to be drawn and placed in escrow. Plaintiff desired to have his
attorney draw this deed, but defendant insisted that it be drawn by its own attorneys, whom it
paid by the year.
the year. When plaintiff was disposed to withhold delivering his deed for the second parcel to
the defendant, defendant's president assured him: My word is good. * * * You never have to
worry about what I tell you. When I tell you it is good, you will get the papers. Plaintiff
testified: I took him at his word. He thereupon executed his deed to the second parcel
conveying 3.13 acres, and after receiving the monetary consideration delivered the deed to the
defendant. The testimony was undisputed. Defendant offered no evidence. The court made
formal findings reciting the foregoing and entered a judgment ordering defendant to reconvey
both parcels of property, or that in failure thereof the clerk of the court do so.
Defendant objected to all of the plaintiff's testimony on the ground that its purpose was to
vary the terms of the 1934 and 1942 deeds which recited the money consideration only. This
objection was overruled, as was defendant's motion to strike the testimony upon the same
ground, and defendant's motion to dismiss under Rule 41(b) N.R.C.P. It seeks a reversal on
its assignment that this was error; on the second ground that plaintiff's action is barred by the
statute of frauds; on the third ground that it is barred by laches; and upon the fourth ground
that by reason of the position taken by the plaintiff in the lower court, he had bound himself
to a statutory action to quiet title whose provisions and conditions prevented a recovery at
law.
[Headnote 2]
1. The oral testimony was not for the purpose of varying the terms of the deed but simply
to show the true consideration. The objection to the testimony was therefore properly
overruled. Burns v. Loftus, 32 Nev. 55, 104 P. 246.
[Headnote 3]
2. We have noted that the suit was one for specific performance and that the judgment
was for a reconveyance of the land by defendant to plaintiff. Plaintiff's part of the contract
was to convey parcel 2 to the defendant.
part of the contract was to convey parcel 2 to the defendant. This he did in consideration of
the defendant's promise to reconvey both parcels. There was accordingly a partial
performance, and defendant's plea of the statute of frauds can avail it nothing. Section 1531,
N.C.L.1929, provides: Nothing contained in this act [An Act Concerning Conveyances,'
which includes the statute of frauds] shall be construed to abridge the powers of courts to
compel the specific performance of agreements in cases of part performance of such
agreements.
[Headnote 4]
3. Plaintiff made repeated demands on defendant in the years 1948, 1949, 1950 and 1951
for a reconveyance. In 1945 and 1946 he called at defendant's office for a like purpose but
defendant refused to see him. In the meantime plaintiff was in possession of the land. The
trial court found that he was not guilty of laches and we see no reason for disturbing this
finding. His delay in bringing his action resulted in no prejudice to defendant, did not cause
defendant to change its position in any respect and did not result, so far as the record
indicates, in the departure or nonavailability of any witnesses, the loss of evidence of any
kind or other prejudice. See 19 Am.Jur. 352, Equity, secs. 508, 509 and notes.
[Headnote 5]
4. Plaintiff did indeed take inconsistent positions with reference to his cause of action
when presenting the case to the district court. Throughout, however, he stood upon his
contention that he had conveyed parcel 2 for the express consideration of defendant's oral
promise to reconvey parcels 1 and 2. Thus the remedy of specific performance of an oral
contract to convey, upon plaintiff's performance by his conveyance to defendant, was
supported both by the pleadings and the proof, irrespective of the fact that plaintiff also urged
his right to a statutory decree quieting his title. See Low v. Staples, 2 Nev. 209, Reprint 1-2,
Nev. 723. Whatever prejudice might have existed to plaintiff's right to recover under such
circumstances under our former practice, we are satisfied that under the liberal procedure
afforded by our present rules of practice, the pleadings and the proof sufficed to support a
recovery upon the equity claim.
right to recover under such circumstances under our former practice, we are satisfied that
under the liberal procedure afforded by our present rules of practice, the pleadings and the
proof sufficed to support a recovery upon the equity claim. See Clyde v. Broderick, CCA
Colo. 1944, 144 F.2d 348, and cases therein cited.
[Headnote 6]
Defendant contends that under no circumstances can parcel 1, conveyed outright to
defendant in 1934, be made the subject of the oral contract to reconvey. As the oral contract
of 1942 is undisputed and as such contract to reconvey applied definitely to both parcels, and
was fully performed by the plaintiff, there appears no reason why equity should not afford its
remedy with respect to both parcels.
Defendant asserts that plaintiff's plight is the result of his own negligence and carelessness,
against which equity will not relieve. The cases cited in support of this contention are not in
point upon the facts, and we cannot accept the contention that because plaintiff was negligent
and careless in accepting the statement of defendant's president that his word was good, this
will defeat his right to recover.
As appellant's assignments of error are without merit, the judgment is hereby affirmed
with costs.
____________
70 Nev. 500, 500 (1954) Brown v. Georgetta
HARRY K. BROWN, County Clerk of Washoe
County, Nevada, Appellant, v. CLEL
GEORGETTA, Respondent.
No. 3842
October 8, 1954. 275 P.2d 376.
Appeal from a judgment of the Second Judicial District Court, Washoe County; A. J.
Maestretti, Judge, Department No. 2, restraining appellant as county clerk from placing the
names of Alan Bible and Ernest S. Brown on the ballot for the election of United States
senator at the election of November 2, 1954.
The Supreme Court, per curiam, held that the phrase next general election as used in the
statute providing that vacancy in office of United States Senator caused by death, resignation,
or otherwise, may be filled by Governor's appointment until next general election, means the
next ensuing biennial election, and that the fact that absent voters' ballots would not contain
names of candidates to succeed the deceased Senator would not prevent lawful addition of
names of such candidates to ballots for those voters voting personally, nor invalidate an
election held under such conditions.
Reversed with instructions to deny the permanent injunction and to vacate the
temporary injunction.
Jack Streeter, District Attorney, Washoe County; and W. T. Mathews, Attorney General,
for Appellant.
Summerfield and Heward, of Reno, for Respondent.
1. United States.
Phrase next general election as used in statute providing that vacancy in office of United States Senator
caused by death, resignation, or otherwise, may be filled by Governor's appointment until next general
election, means the next ensuing biennial election. N.C.L.1929, sec. 2593.
2. Elections.
Where death of United States Senator occurred shortly before election, fact that absent voters' ballots
would not contain names of candidates to succeed deceased Senator would not prevent lawful
addition of names of such candidates to ballots for those voters voting personally, nor
invalidate election held under such conditions. N.C.L.1943-1949 Supp., sec.
would not prevent lawful addition of names of such candidates to ballots for those voters voting personally,
nor invalidate election held under such conditions. N.C.L.1943-1949 Supp., sec. 2429; N.C.L.1929, secs.
2553-2567.
3. Elections.
Where United States Senator died before mid-term biennial election, statute providing that vacancies
occurring after holding of any primary election shall be filled by party committee of county, district or state
as case may be was applicable, notwithstanding contention that section had no application to vacancy in an
office to which no candidate was otherwise to be nominated in such election. N.C.L.1929, sec. 2429, as
amended by St.1947, p. 478.
OPINION
Per Curiam:
This is an appeal from decree of the trial court entered October 6, 1954, granting a
permanent injunction restraining appellant as county clerk of Washoe County from placing
upon the ballot for the forthcoming general election the names of Alan Bible, Democratic
candidate for the office of United States Senator and Ernest S. Brown, Republican candidate
for the same office. Following certification of these names to him as county clerk by the
secretary of state, appellant proposed to place them upon the ballot for election to the
unexpired term of the late Senator P. A. McCarran. Bible was named as candidate by the
Democratic State Central Committee and Brown was named as candidate by the Republican
State Central Committee pursuant to provisions of sec. 2429, N.C.L. 1929, 1943-1949 Supp.
Following the death of Senator McCarran, Governor Charles H. Russell appointed Ernest
S. Brown to fill the vacancy in office thereby created. The question was thus presented
whether the appointment so made is for the entire unexpired term of office or is to extend
only until the ensuing biennial election. To resolve this question the present suit was brought
by respondent as taxpayer and elector.
The injunction was granted below upon the theory that the appointment was for the
entire unexpired term of office, the trial judge ruling that no vacancy in office exists to be
filled by election, the vacancy having already been filled by appointment.
that the appointment was for the entire unexpired term of office, the trial judge ruling that no
vacancy in office exists to be filled by election, the vacancy having already been filled by
appointment.
Section 2593, N.C.L.1929, provides for the manner in which vacancies in this office shall
be filled. It reads: In case of a vacancy in the office of United States senator caused by death,
resignation, or otherwise, the governor of Nevada may appoint some qualified person to fill
said vacancy, who shall hold office until the next general election, and until his successor
shall be elected and qualified.
[Headnote 1]
1. The first question presented upon this appeal is as to the meaning of the words next
general election as used in that statute. Respondent contends that they must refer to the next
election prescribed by law for the regular filling of the office. In this case such would be the
general election of November, 1956. Appellant contends that the words must have reference
to the general election to be held next month.
The meaning of the language in question has been considered by this court in State ex rel.
Bridges v. Jepsen, 48 Nev. 64, 227 P. 588, and Grant v. Payne, 60 Nev. 250, 107 P.2d 307,
132 A.L.R. 568, both of which are cited by respondent in support of his contention. In the
Bridges case the court was dealing with the filling of a vacancy in the office of county clerk
under section 4813 N.C.L., which then read: When any vacancy shall exist or occur in the
office of county clerk, or any other county or township office, except the office of district
judge, the board of county commissioners shall appoint some suitable person to fill such
vacancy until the next general election. This court there held the term general election to
refer to a general election at which county officers regularly were to be elected.
In the Grant case the court was dealing with the filling of a vacancy in the office of state
senator under Art.
Art. IV, sec. 12 of the Constitution of Nevada (sec. 63, N.C.L.1929) which provides for
appointment by the county commissioners and then states: * * * this section shall apply only
in cases where no general election takes place between the time of such death or resignation
and the next succeeding session of the legislature. The term general election was there
held to refer to a general election at which state senators regularly would be elected.
Respondent directs our attention to the following language in the latter opinion, 60 Nev.
254, 107 P.2d 307, 309: A general election is held every two years, but it is general only for
the purpose of electing officers designated by law to be elected at such biennial periods. * * *
[B]y the great weight of authority it means an election for the purpose of selecting officers
who are by law authorized to be elected at that time. The same construction was placed upon
the language in question in the Bridges case.
In the Grant case, however, a significant distinction is made by the court. Reference is
made to the provisions of Art. XVII, sec. 22 of the Constitution of Nevada (sec. 199,
N.C.L.1929, enacted in substance by the legislature as sec. 4812, N.C.L.1929). This
constitutional provision reads: In case the office of any justice of the supreme court, district
judge, or other state officer shall become vacant before the expiration of the regular term for
which he was elected, the vacancy may be filled by appointment by the governor, until it shall
be supplied at the next general election, when it shall be filled by election for the residue of
the unexpired term.
With reference to this section this court stated, 60 Nev. 250, 255, 107 P.2d 307, 309: As
bearing on the supposed intention of the legislature and people in employing the term general
election in art. IV, sec. 12, petitioners refer us to art. XVII, section 22, of the constitution,
providing for the filling of vacancies occurring in state offices other than legislative offices,
but there the constitution itself declares what is meant by general election, by stating
that at the next general election the vacancy shall be filled by election for the residue of
the unexpired term.
in state offices other than legislative offices, but there the constitution itself declares what is
meant by general election, by stating that at the next general election the vacancy shall be
filled by election for the residue of the unexpired term. No such declared intention appears in
the constitutional provision for filling vacancies occurring in legislative offices. The term
general election stands alone, * * *.
Respondent contends that the words general election as used in sec. 2593 with reference
to United States Senators stand alone with no reference to a residue or balance of term to be
filled by election and with no declared intention in that regard. He contends that the
construction adopted in the two cited opinions of this court must, therefore, control.
It is not enough, however, that the words appear to stand alone in sec. 2593, or that that
section alone does not appear to declare any intention with respect to the filling of a residue
or balance of the term by election. That statute was enacted pursuant to the authority of the
seventeenth amendment to the Constitution of the United States, the final and controlling
authority upon the manner of selection of United States Senators. That amendment provides:
The senate of the United States shall be composed of two senators from each state, elected
by the people thereof, for six years; and each senator shall have one vote. The electors in each
state shall have the qualifications requisite for electors of the most numerous branch of the
state legislatures. When vacancies happen in the representation of any state in the senate the
executive authority of such state shall issue writs of election to fill such vacancies; provided,
that the legislature of any state, may empower the executive thereof to make temporary
appointments until the people fill the vacancies by election as the legislature may direct.
This amendment was proposed by Congress December 4, 1911, was proposed to the
legislatures of the several states on May 15, 1912, and was declared in force May 31, 1913.
states on May 15, 1912, and was declared in force May 31, 1913. It was ratified by the State
of Nevada in company with 35 other states.
The intention is thus clearly expressed by the controlling authority (1) that the office of
United States Senator shall be filled by the election of the people; (2) that vacancies in such
office shall likewise be filled by election subject only to temporary executive appointment.
This being the clear policy of the Constitution and that policy having been expressly approved
by Nevada's ratification, our state statute enacted pursuant to such Constitutional authority
must have been enacted with such policy in mind. It must, then, be construed with like intent.
Respondent contends that since no time is fixed by the Constitution within which the
governor shall act by writ of election; since no time limit is placed upon the extent of his
temporary appointments; since the election specified is such as the legislature may direct,
his construction of sec. 2593 is not necessarily in conflict with the federal expression of
policy.
Under his construction, however, no vacancy ever could be filled by election, since each
appointment of necessity would carry over throughout the entire unexpired balance of the
term; the appointment in no sense could be regarded as temporary; the legislature could not
be said to have directed the filling of vacancies by election but on the contrary must be
regarded as having directed that they shall not be so filled. We can conceive of no more direct
opposition to the clear intent of the Constitution.
The Committee on Privileges and Elections of the United States Senate in a report on the
seating of Senator Gerald P. Nye (Senate Election Cases 1913-1940, Senate Document No.
147, 76th Congress, 3rd session) dealt with a North Dakota statute providing for the filling of
vacancies in the office of United States Senator. It stated in part, Certainly the reasonable
presumption is that if the Legislature of North Dakota had intended to incorporate into the
act of March 15, 1917, [Laws 1917, c.
to incorporate into the act of March 15, 1917, [Laws 1917, c. 249] supra, the provisions of the
seventeenth amendment to the Constitution of the United States, it would have given the
executive of that State the power, as the seventeenth amendment provides, to make a
temporary appointment only, until the people should fill the vacancy by election.
We conclude that the words next general election as used in sec. 2593, when considered
in the light of the intention of that section as drawn from the federal provision to which it
owes its existence, must be construed to mean the ensuing biennial election.
This conclusion, in our view, is supported by the construction consistently placed in
practice upon the section in question by executives of this state since the seventeenth
amendment became effective. The appointment of Charles B. Henderson in January, 1918, to
fill the vacancy caused by the death of Senator Francis G. Newlands was a temporary
appointment. The unexpired balance of Senator Newlands's term was filled by the election of
Senator Henderson in November, 1918. The appointment of Berkeley L. Bunker in 1940 to
fill the vacancy caused by the death of Senator Key Pittman was a temporary appointment.
The unexpired balance of Senator Pittman's term was filled by the election of James G.
Scrugham in November, 1942.
[Headnote 2]
2. It is next contended by respondent that, irrespective of the form and nature of any of the
statutes on the subject, there is no next election for filling any vacancies until the general
election of 1956. This contention is predicated upon the proposition that because the county
clerk, complying with statutory requirements of the absent voters' law, secs. 2553-2567,
N.C.L. 1929, has already mailed out several hundred ballots to absent voters, the 1954
election is already under way; that the actual personal casting of ballots on November 2, 1954
is merely a step in such election; that to change the ballot at this time by adding the names
of the two candidates to be elected November 2, 1954 to fill Senator McCarran's
unexpired term will permit personally voting electors to vote for such candidates while
the electors receiving the absent voters' ballots {some of which have already been
returned) are not so permitted, and that the delay in reprinting the ballots will prevent
other eligible absent voters from voting at all by reason of their long distance from their
voting places.
the ballot at this time by adding the names of the two candidates to be elected November 2,
1954 to fill Senator McCarran's unexpired term will permit personally voting electors to vote
for such candidates while the electors receiving the absent voters' ballots (some of which have
already been returned) are not so permitted, and that the delay in reprinting the ballots will
prevent other eligible absent voters from voting at all by reason of their long distance from
their voting places. It is contended that an election held under such conditions would be void.
Perhaps no statute on our books has been subject to more amendments than our election
laws. That the legislature has constantly sought improvement therein cannot be doubted. That
any member of the senate or assembly has ever felt that perfection in the election laws could
be achieved, no one would have the optimism to assert. Prior to the absent voters' law of
1921, this state had no statute providing for an absent voter's ballot. Yet prior to the effective
date of that act many persons by reason of the nature of their vocation or business or other
causes [were] unavoidably absent from the polls in the county of their residence on the day of
election. (We have quoted the purpose of the act as gleaned from its title.) Stats. 1921, 153,
as amended Stats. 1925, 39. The contention, if valid, would invalidate sec. 25 of the primary
election law, as amended Stats. 1947, 478, sec. 2429, N.C.L.1929, under which certain
nominations under certain conditions may be made up to thirty days prior to the November
election, whereas under the absent voters' statute the clerk shall immediately mail out the
absent voters' ballots when applied for, though the same may be demanded thirty days prior to
the date of election. And sec. 2429, prior to the amendment, permitted nominating petitions to
be filed fifteen days before the November election. The answer to the contention, in short, is
that voting by absent voters' ballot is a privilege, not a right. Under our statutes providing
for late nominations under certain conditions it is inevitable that circumstances will arise
whereunder ballots containing the names of late nominees will not reach absent voters
living in distant parts of the world.
our statutes providing for late nominations under certain conditions it is inevitable that
circumstances will arise whereunder ballots containing the names of late nominees will not
reach absent voters living in distant parts of the world. If the names of the nominees are
otherwise lawfully placed upon the ballots personally voted at the polls, it could not
reasonably be contended that the election for the particular office should be declared void. It
is an equally complete answer to note that in fixing the time before election in which
nominations may be made where a vacancy occurs after the primary election, and in fixing
the time for mailing ballots to absent voters, the legislature must be presumed to have chosen
these periods as reasonable ones to accomplish the purposes sought.
Hunt v. Superior Court, 64 Ariz. 325, 170 P.2d 293, relied upon by respondent for its use
of the expression that there could not be one kind of ballot for those in the military service
and a ballot with other or different names for those not in the military service, involved the
construction of statutes different from those now under consideration, and is otherwise clearly
distinguishable.
[Headnote 3]
3. It is next contended that the provisions of sec. 25 of the primary election law, as
amended 1947, 478, sec. 2429 N.C.L.1943-1949 Supp., relate only to the filling of a vacancy
where a person nominated at the preceding primary election has died, resigned or for some
other reason ceased to be a candidate. The section reads in part as follows: Vacancies
occurring after the holding of any primary election shall be filled by the party committee of
the county, district or state, as the case may be. Such action shall be taken not less than thirty
days prior to the November election. It is contended that this section his no application to a
vacancy in an office to which no candidate was to be nominated in the 1954 election. But that
Senator McCarran's death created only a vacancy in office and not a vacancy in nomination is
contrary to the holding of this court in Penrose v. Greathouse, 4S Nev. 419
is contrary to the holding of this court in Penrose v. Greathouse, 48 Nev. 419, 233 P. 527,
529. There this court, speaking through Mr. Justice Sanders, said:
We quite agree with the learned attorney-general that the word vacancies' as used in
section 25 in respect to nonpartisan nominations means a vacancy in some such nomination.
But, as said in State v. Hostetter, supra, where, by reason of death, as in this case, a vacancy
in an office occurs shortly before a general election at which some one to fill the office for the
unexpired term should be chosen, and no one has been nominated to said office (as in this
case), there is a vacancy in the nominations within the meaning of the election law, and such
a vacancy may be supplied, at any time prior to the election, by a nomination authenticated in
the mode pointed out by the ballot law. This ruling of the court is followed in State v.
McClure, 299 Mo. 688, 253 S.W. 743.
We see no sufficient reason for saying that a vacancy could occur only by the death,
resignation, or removal of a nonpartisan candidate nominated at a primary election. Section
2812, Revised Laws, provides for the election of some one to fill an unexpired term where
the vacancy in the office occurs before a general election; and hence the provision found in
section 25 of the primary election law if there be no such person, then the vacancy may be
filled by a petition' is broad enough to permit the qualified electors of a judicial district to
make a nomination by petition authenticated in the mode pointed out by the statute.
State v. McClure, supra, thus followed with approval in Penrose v. Greathouse, treats
vigorously of the same subject. The same contention, under a similar statute, was made that
the vacancies referred to do not mean vacancies in an office. But the Supreme Court of
Missouri held: But there is no reason for saying that such a vacancy could occur only by the
death, resignation, or removal of a candidate nominated. Section 4786 [V.A.M.S. 105.030
(corresponding with sec. 2593 in the case at bar)] provides for the election of some one to
fill an unexpired term where the vacancy in the office occurs before a general election.
the case at bar)] provides for the election of some one to fill an unexpired term where the
vacancy in the office occurs before a general election. By the force of that statute a vacancy in
an office, occurring after a primary election, creates on the nominated ticket a vacancy which
did not exist prior to the occurrence of the vacancy in the office, a vacancy which [the statute]
authorizes the political committee to fill. We hold respondent's contention in this regard to
be without merit.
The judgment of the district court is reversed, and said court is directed to enter judgment
denying the petition for permanent injunction and vacating the temporary injunction. This
order shall be effective immediately. Let remittitur issue forthwith.
____________
70 Nev. 510, 510 (1954) Ripps v. Kline
ALFRED RIPPS and MARIE DOROTHY RIPPS,
Appellants, v. PAULINE KLINE, Respondent.
No. 3810
October 21, 1954. 275 P.2d 381.
Appeal from the Eighth Judicial District Court, Clark County; Ryland G. Taylor, Judge,
Department No. 3.
Action by tenants for declaration of rights and duties under lease and to compel
performance of duties by landlord. From an adverse judgment the tenants appealed. The
Supreme Court, Merrill, J., held that where lease placed no duty of repair on landlord and
city's demolition order did not direct that the nuisance, caused by condition of leased
premises, be abated by specific acts of repair, landlord did not have duty to repair leased
premises and was entitled to terminate the lease.
Ralli, Rudiak & Horsey, of Las Vegas, and Morris Pepper of Houston, Texas, for
Appellants.
George E. Marshall and Jones, Wiener & Jones, of Las Vegas, for Respondent.
70 Nev. 510, 511 (1954) Ripps v. Kline
The covenant of quiet enjoyment generally is interpreted to secure the lessee against the acts and
hindrances of lessor and thus requires that lessor refrain from voluntarily impairing character and value of
leased premises.
Unless demolition order results from some breach of duty owed by landlord, tenants may not hold
landlord responsible for it and the demolition so ordered may not be attributed to landlord as act in
violation of landlord's covenant of quiet enjoyment.
Where lease placed no duty of repair on landlord and city's demolition order did not direct that nuisance,
caused by condition of leased premises, be abated by specific acts of repair, landlord did not have duty to
repair the leased premises and was entitled to terminate the lease.
4. Health.
City's demolition order, which specified certain defects in premises, stated that front 50 feet of premises
was a hazard to the public and must be demolished and removed and notified that landlord commence
either required repairs or improvements or demolition or removal of buildings within 90 days, was clear
and unequivocal and could not be construed as order to repair front 50 feet of premises or demolish or
remove that part of premises.
5. Health.
City's action, at tenant's request, in granting building permit for repair and improvement of premises, for
which city had issued demolition order, was not modification of demolition order so as to constitute the
order in effect an alternative order to repair or demolish.
OPINION
This is an appeal taken by the plaintiffs below from judgment on the pleadings rendered in
favor of respondent. The action is for a declaration of rights and duties under the terms of a
lease and to compel performance by respondent of her duties as lessor. The question involved
is whether, under a demolition order of the City of Las Vegas, lessor was entitled to terminate
the lease or whether, since the building involved can be made safe by repair, it is respondent's
duty to repair and continue the lease in effect.
70 Nev. 510, 512 (1954) Ripps v. Kline
lease in effect. In this opinion we shall designate appellants as lessees and respondent as
lessor. The following facts are established by the pleadings.
The property involved consists of a store building located in Las Vegas, leased by lessor to
lessees for a term expiring December 31, 1957. Under the terms of the lease no obligation for
repair is imposed upon the lessor, the lessees having assumed the obligation for all repairs,
interior and exterior. The lease contains the usual covenant of quiet enjoyment.
On July 16, 1953, the building inspection department of the City of Las Vegas notified
lessor in writing that the premises had been determined to be an unsafe building under the
city's building code. The notice states in part,
The defects found are as follows:
(1) Front parapet wall structurally unsafe and in danger of falling.
(2) Ceiling construction is of a material not allowed under code.
(3) Wood frame construction separates the store on the west, which violates the fire
regulations.
(4) Front 50 feet is definitely unsafe and a hazard to the public and must be demolished
and removed. The rear portion of the building is structurally sufficient under the code.
You are further notified to commence either the required repairs or improvements or
demolition and removal of the building or structure or portions thereof within 90 days, * * *.
The following day lessor notified lessees to vacate the premises in order that the
demolition might be accomplished pursuant to the order of the city. On July 24 lessees
notified lessor that they would have plans and specifications prepared for repair of the
building so as to bring it into conformity with the city's code and demanded that lessor make
such repairs and notified her that in default thereof lessees would make such repairs and look
to lessor for reimbursement and damages.
70 Nev. 510, 513 (1954) Ripps v. Kline
and look to lessor for reimbursement and damages. Lessees then employed an architect, had
plans and specifications for such repairs made and procured a building permit from the city
for the making of such repairs. The nature of the repairs does not appear save that they are
structural and substantial in their nature and that it was not contemplated by the parties or
by the terms of the lease that repairs of such a nature should be performed by lessees under
their covenant to repair. On August 5, 1953 lessees delivered the plans and specifications to
lessor and advised her of the action of the city in issuing the building permit and again
demanded that she proceed with the repair of the building. Upon lessor's refusal so to do this
action was brought by lessees to compel lessor to make the necessary repairs.
The trial court ruled that upon these facts the lessor was under no obligation to repair.
Judgment on the pleadings was thereupon granted in favor of the lessor. The lessees have
taken this appeal from that judgment.
Lessees contend that under lessor's covenant of quiet enjoyment she is obligated to repair
and may not demolish. In this they rely on Kansas Investment Co. v. Carter, 160 Mass. 421,
36 N.E. 63 and other cases following that decision, holding that if a building can be made
safe without taking it down and thus disturbing the possession of the lessee, it is a violation of
a lessee's right of quiet enjoyment to take it down. In our view these cases are distinguishable
from the case at bar.
[Headnote 1]
The covenant of quiet enjoyment generally is interpreted to secure the lessee against the
acts or hindrances of the lessor and thus requires that the lessor refrain from voluntarily
impairing the character and value of of the leased premises. See: 51 C.J.S. 1006 (Landlord &
Tenant, Sec. 323 b [1]). We must in this case, then, determine whether the proposed
demolition may be regarded as the lessor's voluntary act: an eviction of the lessees by the
lessor. Lessees contend that while demolition was ordered by the city, since there is an
alternative, lessor's choice of demolition is voluntary; that by her refusal to repair she is
necessitating the demolition.
70 Nev. 510, 514 (1954) Ripps v. Kline
demolition was ordered by the city, since there is an alternative, lessor's choice of demolition
is voluntary; that by her refusal to repair she is necessitating the demolition.
[Headnote 2]
But unless she is under an independent duty to repair, the impending demolition places no
such duty upon her. Unless the demolition order results from some breach of duty owed by
the lessor, the lessees may not hold her responsible for it and the demolition so ordered may
not be attributed to her as her act in violation of her covenant of quiet enjoyment. Connor v.
Bernheimer, 6 Daly 295; Gallup v. Albany R. Co., 65 N.Y. 1; Hitchcock v. Bacon, 118 Pa.
272, 12A. 352.
In Connor v. Bernheimer, supra, it is stated [301]: Where there is no covenant on the part
of the landlord to repair or rebuild and none is implied in a covenant of quiet enjoyment * * *
the tenant takes the premises as they are, and if, in consequence of natural decay * * * it
becomes indispensable, as a public duty for the public safety, to take down the building, to
prevent its falling down, there is no violation of the covenant for quiet enjoyment * * *.
The authorities cited by lessees involve cases in which the demolition resulted from a
breach of duty owed by the lessor; where improper actions or omissions of duty of the lessor
had necessitated the demolition. They include cases where the lessor had neglected a duty of
repair imposed by the lease or where the demolition had been necessitated by the affirmative
acts of the lessor or where the lessor had refused compliance with a public safety order or
otherwise had failed to meet an obligation imposed by law. Cf. Lindwall v. May, 111
App.Div. 457, 97 N.Y.S. 821; Snow v. Pulitzer, 142 N.Y. 263, 36 N.E. 1059.
[Headnote 3]
We look, then, for a duty owed by the lessor. As we have noted, the lease places upon her
no duty of repair.
70 Nev. 510, 515 (1954) Ripps v. Kline
She was not, then, obligated by contract to act to prevent the premises from falling into a
ruinous condition.
The pleadings do not allege that the unsafe condition of the front fifty feet, which required
demolition under specification number 4, was caused by actions of the lessor. We can only
assume, subject to the first three specifications, that such condition is the result of natural
deterioration and thus not the lessor's responsibility.
Nor has a duty been created by order of the city. The city did not direct that the nuisance
be abated by specific acts of repair. In submitting to demolition the lessor, then, is not
necessitating the demolition by her refusal to comply with the order of a public authority. She
is not refusing to comply but is rather submitting to compliance in the manner directed.
In Kansas Investment Co. v. Carter, supra; Burofsky v. Turner, 274 Mass. 574, 175 N.E.
90; and City of New York v. Unsafe Building, 194 Misc. 124, 86 N.Y.S. 2d 113, cited by
lessees, the order of the city was in the alternative: repair or demolish. These cases thus come
closer to the case at bar than other authority cited to us, for in these cases, too, it may be
argued that in demolishing, the lessor is but submitting to the city's order in one of its
alternatives. However, the fact that in those cases the city had actually ordered repair must be
given significance. Even though that order be in the alternative, the city had thereby
demanded specific repair or improvement. The true significance of such an alternative order,
in our view, is that the city's principal direction was that the premises be made safe by the
performance of specified acts of repair or improvement deemed essential by the city to
remedy specific defects rendering the premises unsafe. Demolition was no more than the
city's stern alternative in the interest of public safety should the lessor default in compliance
with the city's demands: Repair or suffer the consequences. The cases, then, may be said
simply to hold the lessor responsible to the lessee for the consequences of his default.
70 Nev. 510, 516 (1954) Ripps v. Kline
[Headnote 4]
Lessees contend that the order of the City of Las Vegas should be construed as an
alternative order. We are wholly unable so to construe it. Certain defects are, it is true,
specified as numbers 1, 2 and 3. Were this the extent of the city's specification the order
might well be regarded as one for repair and improvement. Specification number 4, however,
is all-inclusive and cannot be said to be limited by the preceding specifications. The direction
to demolish and remove is clear and unequivocal. The city has even seen fit typographically
to indicate emphasis of its order. The language of the succeeding paragraph does not affect
this unequivocal and emphatic order. The meaning of that paragraph clearly is that lessor,
within the time specified, must do what has been ordered, whether that action be for repair,
improvement or demolition.
[Headnote 5]
Lessees contend that the subsequent action of the city in granting a building permit for the
repair and improvement of the premises is equivalent to a modification of its demolition
order, constituting it in effect an alternative order to repair or demolish. The plans and
specifications upon which the building permit was issued, however, were not the city's
directive but the lessees' proposal. While the permit might be said to demonstrate a
willingness on the part of the city to accept voluntary repair or improvement in lieu of
demolition, it cannot be said to constitute an order to this effect with which the lessor is
refusing to comply. In this connection it should be noted that a city may not act arbitrarily or
oppressively in these matters. See: Health Dept. v. Rector, 145 N.Y. 32, 39 N.E. 833, 27
L.R.A. 710; Adamec v. Post as Commissioner, 273 N.Y. 250, 7 N.E.2d 120, 109 A.L.R.
1110. A city, then, might well be disposed to accept a voluntary offer of action which it could
not legally compel or which it would not feel justified in demanding.
70 Nev. 510, 517 (1954) Ripps v. Kline
Lessees direct our attention to the implication of Burofsky v. Turner, supra, to the effect
that the mere right of the lessor to make premises safe in lieu of demolition, cast upon him a
duty to make safe under his covenant of quiet enjoyment. This implication we must reject.
What the court there viewed as the right of the lessor sprang from the city's order that the
building must be * * * either repaired to conform to the Building Laws, or demolished. In
our view as already expressed, it was the right of the lessor to repair but the direction of the
city that he repair which cast the duty of repair upon him.
No obligation of repair, then, has been imposed upon the lessor by contract or by public
authority or by virtue of the fact that her own actions have brought about the need for repair.
In our view, then, her refusal to repair cannot be said to have violated her covenant of quiet
enjoyment.
December 1, 1954.
Per Curiam:
Rehearing denied.
____________
70 Nev. 518, 518 (1954) Harold's Club v. Sanchez
HAROLD'S CLUB, a Corporation, Appellant, v.
RAMONA G. SANCHEZ, Respondent.
No. 3766
October 21, 1954. 275 P.2d 384.
Appeal from judgment of Second Judicial District Court, Washoe County; Harold O.
Taber, Judge, Department No. 3.
Action against gambling club for personal injuries sustained when the intoxicated plaintiff
fell while attempting to get upon an escalator. From a judgment in favor of the plaintiff, the
gambling club appealed. The Supreme Court, Badt, J., held that the club's employees who
warned the intoxicated plaintiff not to get on the escalator owed her no duty to use force to
restrain her from getting upon it.
Reversed.
Woodburn, Forman and Woodburn, and Peter Echeverria, all of Reno, for Appellant.
Ernest S. Brown and William L. Hammersmith, both of Reno, for Respondent.
1. Carriers.
Where intoxicated woman in gambling club proceeded to get on escalator, club employees who warned
her not to get on it owed no duty to use force to restrain her, whether she was bare licensee or business
visitor.
2. Carriers.
Trial court's general finding, that defendant had clear opportunity to avoid accident by use of ordinary
care, would be construed with reference to specific finding that defendant's employees negligently failed to
keep intoxicated plaintiff off escalator, and would not support judgment on theory that defendant could
have stopped escalator in time to avoid accident.
Where judgment could not be supported on theory of defendant's negligence in failing to use force to
keep intoxicated plaintiff off escalator, and facts were undisputed, and no basis appeared in record from
which could be assumed or inferred a finding that defendant was negligent in failing to stop escalator,
judgment for plaintiff would be reversed and judgment entered for defendant, though
evidence would have supported either latter finding or its converse.
stop escalator, judgment for plaintiff would be reversed and judgment entered for defendant, though
evidence would have supported either latter finding or its converse.
OPINION
Ramona G. Sanchez, while very drunk, was injured in attempting to enter upon the
escalator in Harold's Club in Reno, Nevada. The court, sitting without a jury, made findings
and entered a judgment in her favor, holding that defendant was negligent in not preventing
her physically from using the escalator in her intoxicated condition. Defendant assigns this as
error as placing it under a duty of care not warranted by the facts or the law applicable
thereto. The pertinent facts are as follows:
On August 10, 1951 respondent had five or six drinks of double Scotch whiskey at the
Golden Hotel, started gambling there and within about an hour and a half won $1,400. She
gave $500 of this to Slim Yoncy, a former employee, to take back to the restaurant of which
she was the proprietor. She continued to gamble and lost the remaining $900 of her winnings,
returned to her restaurant, was informed that Slim had not deposited her $500 but was
reported to be at Harold's Club gambling. She went to Harold's Club to find Slim, get her
$500 back and continue gambling. When she entered the club it was immediately evident to a
number of the club's employees, as well as to several of its patrons, that, to use their own
expressions, she was quite inebriated, she staggered, she was very intoxicated, she was
not in a position to properly take care of herself. She was six feet tall and weighed 278
pounds. Harold's Club is a gambling establishment maintaining gambling games and
gambling devices of various kinds, both on the ground floor and on the second floor of the
premises.
For the convenience of its patrons it maintains an escalator or moving stairway. The stairway
is in constant motion, with a handrail at either side so connected with the stair mechanism
that it moves with the same speed as the stairs. The establishment maintains five bars. The
escalator in question was operating normally and was not in any respects in a defective
condition. Except as to an occasional minor detail, the facts surrounding the accident are not
in dispute.
Respondent neither purchased nor attempted to purchase any liquor at any of the bars at
appellant's premises. Upon entering in her intoxicated condition she inquired of the pit boss
as to where Slim was. She had gambled at Harold's Club for some four years and was well
known to the employees. After her entrance, the bar supervisor followed her in order to be
sure that no bartender served her any more drinks. She had come in the alley entrance and
was moving across the club floor toward the front door. Before reaching the door however
she turned toward the entrance of the up-escalator. A woman employee, stationed at a roulette
wheel some eight feet from the base of the up-escalator, called to her, I wouldn't get on there
if I were you, and called the warning a second time. A man employee, seeing her turn toward
the escalator, admonished her not to get on. She answered that some one upstairs was losing
her money. He put out his hand but she went on. A third employee, a hostess at the club,
observed respondent staggering and began to follow her, thinking that she might get into
trouble. As hostess she often lent assistance to patrons who had had too much to drink. This
hostess weighed 130 pounds. When it appeared that respondent was not going to the front
door but toward the escalator, the hostess advised her that she was too drunk to get on the
escalator. When asked if she made any attempt to stop the respondent with the use of physical
force, she replied: No, I didn't. I laid my hand on her arm when I was talking to her, and I
said, Please don't get on the escalator, Ramona.' She brushed me aside and kept on
going."
don't get on the escalator, Ramona.' She brushed me aside and kept on going. Elsewhere she
testified: She pushed me aside and went on going. Respondent started to enter upon the
escalator, put her foot on the first step, was thrown off balance and fell. Two of the
employees were close enough to reach out and catch her and ease her fall. She suffered a
painful fracture of her left ankle and other injuries.
The learned trial judge, in his written decision, stated: The vital question in this case
concerns the duty of care owed by the owner of a gambling establishment in which there are
five bars, to an intoxicated business visitor who intends to use a motor stairs on the
premises. This remains the vital question presented to this court. Respondent argues that the
law governing the use of elevators is applicable likewise to the use of escalators; that
appellant was a common carrier of passengers and as such was bound to use the utmost care
and diligence for the safety of its passengers therein, and is liable for injury to a passenger
occasioned by its slightest negligence, against which human prudence and foresight should
have guarded. Smith v. I.O.O.F., 46 Nev. 48, 205 P. 796; Seavy v. I.X.L. Laundry, 60 Nev.
324, 108 P.2d 853; Anno. Injuries on Escalator, 152 A.L.R. 562. These and other similar
authorities do not reach the specific question, as to whether the very high degree of care
imposed includes the necessity for the use of force to prevent an intoxicated person from
using an escalator. Respondent relies strongly on Fox v. Michigan Central R. Co., 138 Mich.
433, 101 N.W. 624.
[Headnote 1]
Respondent also cites a 25-page annotation on CarriersIntoxication of Passengers at
17 A.L.R.2d 1085, cites a number of the cases therein collected and quotes the annotator's
notes in support of the contention that the carrier's duty of due care owed to an intoxicated
passenger included that of physical restraint where the passenger placed himself in a position
of danger to the knowledge of the carrier's servants and where there was due opportunity
to rescue the passenger from his position of danger, or otherwise prevent injury.
knowledge of the carrier's servants and where there was due opportunity to rescue the
passenger from his position of danger, or otherwise prevent injury. In several of the cases
where these conditions existed, there is indeed a strong implication that physical restraint
should have been resorted to. None of the cases is factually in point here, and none of them is
authority for the conclusion that appellant in the instant case failed in its duty of care owed to
respondent because it did not impose a physical restraint upon her. It is fairly deducible from
the testimony that in her staggering but fairly rapid progress from the alley entrance, past the
gambling tables, in the direction of the front entrance, defendant's first knowledge that
Ramona intended to use the escalator was that obtained by the hostess. The hostess
immediately warned her that she was too drunk to use the escalator, asked her not to do so
and even put out a restraining hand but was brushed or pushed aside. We are at once
confronted with the question as to the nature of the physical restraint that the 130-pound
hostess was called upon to exercise as against the 278-pound respondent. Even if we assume
that instead of the slight hostess we had the person of a bouncer of even greater weight and
strength than the respondent, we are confronted with the further question as to the extent of
physical restraint that would have been justified in order to protect respondent against the
possible danger resulting from her use of the escalator in her condition. Other and varying
suppositious situations suggest themselves. They all suggest the danger of establishing a
precedent in such cases as this that appellant was under a duty to use physical restraint in
order to absolve itself from a charge of negligence. No case cited to us has so held. The
learned district judge had before him the picture of a huge gambling establishment, serving
thousands of patrons daily, equipped with five bars, faced with the necessity for dealing with
intoxicated as well as sober persons and necessarily required to exercise the utmost of care to
see that its intoxicated patrons did not injure themselves.
themselves. Appellant points out that the trial court's decision is equivalent to holding that
appellant was required to exercise a privileged battery upon respondent for her own
protection, and that in no court of last resort has the theory of privileged battery been applied
to such a case. Respondent has cited none such, nor have we found any. Our conclusion is, as
stated in Fox v. Michigan Central R. Co., supra, cited by respondent, that each case must
stand upon its own particular circumstances, and that under the facts of this case, even the
high degree of care imposed on appellant did not include the requirement that it use force to
prevent respondent from entering upon the escalator.
Both parties have argued at considerable length, with citation of authorities, the status of
respondent as a bare licensee, an invitee, a business visitor. She came to Harold's Club to get
her $500 back from Slim Yoncy and to gamble it at appellant's tables. We do not find it
essential to determine her status, for even assuming her status to be that of a business visitor,
with the higher duty of care thereby imposed on appellant, we are of the opinion that such
duty could not achieve the height of that imposed upon it by the court.
[Headnote 2]
It is next contended that even if appellant could not be held to be negligent for its failure
physically to prevent respondent from entering upon the escalator, it was nevertheless
negligent in failing to stop the escalator and thus prevent the accident. The trial court did not
find on this issue despite the great amount of testimony adduced upon the point. This
testimony would, in our opinion, have been sufficient to support a finding either (1) that
defendant had stopped the escalator at the earliest instant after it appeared that plaintiff was
about to mount the same despite the protests of the defendant's employees, or (2) that, on the
contrary, defendant had reasonable opportunity to stop the escalator in time to avoid the
accident but failed to do so. Respondent relies upon the following language used in
Goldsworthy v. Johnson, 45 Nev. 355, 363
Johnson, 45 Nev. 355, 363, 204 P. 505, 507: Assuming it to be true that the lower court was
in error in the reasons given in its opinion for the judgment rendered, we would not be
justified in reversing the judgment if a proper application of the law to the facts demands its
affirmance. If the judgment is right upon any theory, even though it be upon one never
thought of by the trial court, and is sustained by the findings and evidence, it is our duty to
affirm it, for in so doing we do not have to lend approval to the mental processes of the trial
court. In that case, however, this court held, in view of the entire testimony, that it would not
be justified in overthrowing the trial court's findings to the effect that the transaction in
question amounted to a gift causa mortis. Here however there was no finding. Respondent
insists that the court's finding that defendant had a clear opportunity to avoid the accident by
the use of ordinary care is the finding of the ultimate facts and that a finding of the probative
facts that appellant failed to stop the escalator, having the opportunity so to do after receiving
knowledge of respondent's dangerous situation, was not required; or, that if required, it must
be implied or presumed. Murray v. Osborne, 33 Nev. 267, 111 P. 31.
But it is clear that the part of the finding above quoted was only part of the entire
findingnay, part of the same sentence which held that appellant's failure was in not
keeping plaintiff off the escalator. Expressions used by the court in its other findings, in its
conclusions, and in its written decision all indicate clearly that the finding of defendant's
failure to avoid the accident by the use of ordinary care referred definitely to its failure to
keep respondent off the escalator, and without any reference to the factual issue of stopping
or failing to stop the escalator. We are being asked to support the judgment by substituting
other findings on the basis that there is some evidence to support such substituted findings.
There is no justification for this in the rule relied upon by respondent.
[Headnote 3]
As the judgment may not be supported on the theory of appellant's negligence in failing to
use physical force to prevent respondent from entering upon the escalator, under the
undisputed facts, and as there is nothing in the record from which we can infer or assume a
finding that appellant was negligent in failing to stop the escalator, the judgment must be
reversed with costs, and judgment entered in favor of defendant. It is so ordered.
____________
70 Nev. 525, 525 (1954) Polito v. State
CHARLES DOMINIC POLITO, Appellant, v. STATE
OF NEVADA, Respondent.
No. 3828
October 29, 1954. 275 P.2d 884.
Defendant was convicted of the crime of lewdness and he filed a petition for order of
Supreme Court admitting him to bail pending his appeal from conviction. The Supreme Court
held that petition did not show abuse of discretion by trial judge in denying application by
defendant to such judge for an order admitting defendant to bail.
Petition denied.
Gladys Towles Root, of Los Angeles, California; and Ralli, Rudiak & Horsey, of Las
Vegas, for Appellant.
W. T. Mathews, Attorney General; Roger D. Foley, District Attorney, Clark County;
Gordon L. Hawkins, Deputy District Attorney, Clark County, for Respondent.
1. Bail.
Under statute authorizing trial court or judge or court to which appeal is taken or the judge or a justice
thereof to make an order admitting defendant to bail pending appeal from conviction, generally the court to
which the appeal is taken will not act in the first instance except in the case of absence or
disqualification of trial judge or his inability or refusal to act.
of absence or disqualification of trial judge or his inability or refusal to act. N.C.L.1929, sec. 11124.
2. Criminal Law.
Execution of sentence of imprisonment in state prison was stayed by issuance by a justice of the supreme
court of a certificate of probable cause for appeal from conviction of the crime of lewdness and defendant
remained in custody of county officers. N.C.L.1929, sec. 11092.
3. Bail.
Admission to bail pending appeal from conviction is a matter of discretion, save where appeal is from
judgment imposing a fine only. N.C.L.1929, sec. 11112.
4. Criminal Law.
Exercise of discretion by trial judge in denying bail will not be disturbed by reviewing court except for
clear abuse of discretion. N.C.L.1929, secs. 11112, 11124.
5. Bail.
Petition for order of reviewing court admitting petitioner to bail pending his appeal from conviction of
the crime of lewdness did not show abuse of discretion by trial judge in denying application to such judge
for an order admitting petitioner to bail. N.C.L.1929, secs. 11112, 11124.
OPINION
Per Curiam:
This is on petition of appellant for order of this court admitting him to bail pending his
appeal from conviction of the crime of lewdness. By the provisions of sec. 11124,
N.C.L.1929, such order may be made by the court or judge who tried the case or by the court
to which the appeal is taken or the judge or a justice thereof.
[Headnote 1]
Under such provisions it is the generally recognized rule that the appellate court will not
act in the first instance except in the case of absence or disqualification of the trial judge or
his inability or refusal to act. People v. Perdue, 48 Cal. 552; Sioux Falls v. Marshall, 48 S.D.
378, 204 N.W. 999, 45 A.L.R. 447; Hicks v. State, 179 Tenn. 601, 168 S.W.2d 781; See:
State v. Smith, 33 Nev. 435, 111 P. 929; 6 Am.Jur. (Rev.Ed.) 81, Bail and Recognizance, sec.
44.
[Headnote 2]
On July 12, 1954 application was made to the trial judge, Hon. A. S. Henderson of the
Eighth judicial district court, for a certificate of probable cause for appeal and for an order
admitting appellant to bail. The application in both respects was denied. On August 20, 1954
Justice Merrill of this court issued a certificate of probable cause for appeal pursuant to sec.
11092 N.C.L. 1929 and the opinion of Chief Justice Sanders of this court in State v. Neven,
45 Nev. 154, 199 P. 83. Execution of the sentence of imprisonment in the state prison was
thereby stayed, appellant remaining in the custody of the Clark County officers. This petition
was then filed, and is opposed by the state.
[Headnotes 3, 4]
Section 11112, N.C.L.1929, provides that, save when the appeal is from judgment
imposing a fine only, admission to bail pending appeal is a matter of discretion. An exercise
of discretion by the trial judge in denying bail will not be disturbed by the appellate court
save for clear abuse thereof. State v. Smith, supra; Sioux Falls v. Marshall, supra.
[Headnote 5]
The petition in this matter asserts that this appeal is taken in good faith and with
expectation of reversal and indicates the basis for such expectation. It cannot be said,
however, to have demonstrated abuse of discretion on the part of the trial judge, nor, indeed,
is such abuse of discretion asserted.
Petition denied.
____________
70 Nev. 528, 528 (1954) Ferris v. Albright's Electric Co.
EDWARD HARVEY FERRIS, Appellant, v.
ALBRIGHT'S COURTESY ELECTRIC CO.,
a Corporation, and GUY DEWEY
MATHIS, Jr., Respondents.
No. 3793
October 29, 1954. 275 P.2d 755.
Appeal from a judgment for defendants in the Eighth Judicial District Court, Clark
County; Frank McNamee, Judge, Department No. 1.
Driver of motor scooter brought action against owner of pickup truck and truck driver for
injuries sustained by driver of scooter when truck and scooter collided at intersection in city.
From a judgment adverse to driver of scooter, he appealed. The Supreme Court, Badt, J., held
that evidence sustained finding that driver of scooter was negligent in driving at excessive
speed into intersection after seeing truck enter the intersection.
Affirmed.
Hawkins & Cannon, of Las Vegas, for Appellant.
Morse, Graves & Compton, and Arthur Olsen, of Las Vegas, for Respondents.
1. Automobiles.
In action by driver of motor scooter against owner of pickup truck and truck driver for injuries sustained
by driver of scooter when truck and scooter collided at intersection in city, it was within province of trial
court, as trier of the facts, to reject the estimate by driver of scooter of his own speed and to conclude that
his speed must have been considerably greater.
2. Trial.
A trier of facts may lawfully discredit the testimony of a witness when it is in conflict with evidence
otherwise satisfactory to the trier of facts.
3. Automobiles.
by driver of scooter when truck and scooter collided at intersection in city, evidence sustained finding that
driver of scooter was negligent in driving at excessive speed into the intersection after seeing the truck
enter the intersection.
70 Nev. 528, 529 (1954) Ferris v. Albright's Electric Co.
4. Automobiles.
by driver of scooter when truck and scooter collided at intersection in city, last clear chance doctrine was
inapplicable under the evidence.
5. Automobiles.
by driver of scooter when truck and scooter collided at intersection in city, evidence sustained finding that
truck driver was not negligent.
OPINION
Plaintiff, Edward Harvey Ferris, sued for damages resulting from a collision, at an
intersection, of his motor scooter with a pickup truck owned by the defendant corporation and
being driven by its employee, defendant Mathis. The court, trying the case without a jury,
held that plaintiff's negligence was a proximate cause of the accident and entered judgment
for defendants. In his appeal plaintiff concedes that the judgment may not be reversed if there
is substantial evidence to support it, but contends that there is no credible evidence to support
the court's findings that defendants were not negligent and that plaintiff was negligent in
driving at excessive speed into the intersection after seeing the pickup truck enter the
intersection.
[Headnotes 1-3]
Plaintiff was driving his motor scooter west on Gass Avenue in Las Vegas and Mathis was
driving the pickup truck north on South First Street. Both streets have a width of 50 feet from
curb to curb. A small restaurant on the southeast corner of the intersection is set back from
both streets, which left a comparatively clear view to each of the drivers of the other
approaching vehicle. The day was clear. Gass is a through street and vehicles approaching
Gass from South First are required to stop, as indicated by the usual stop sign. Under the city
ordinances the speed limit in the intersection was 15 miles per hour, also: "At corners
generally.
per hour, also: At corners generally. The operators of vehicles approaching any intersection
* * * shall yield the right of way to vehicles approaching such intersection from the right * *
*, but in the event either vehicle has entered the intersection, said vehicle shall have the right
of way * * *. Mathis testified that when he reached the intersection he came to a full stop,
looked in both directions, in both of which he had a clear view for about half a block, saw no
traffic at all, shifted into low gear, entered the intersection at a speed of 4 or 5 miles per hour,
saw the scooter appear suddenly to the right and a little in front of him, applied his brakes,
and the collision occurred. An expert, testifying from an examination of the skid marks,
estimated the pickup's speed at the time the brakes were applied at 10 miles per hour but that
such speed might have been 8 or 7 miles per hour. All four wheels of the pickup skidded 18
inches. A witness testified that the pickup traveled less than its length after the impact, a
distance of about 10 feet. Another witness placed this distance about 6 feet. The pickup's right
front bumper struck the left rear panel of the scooter. The collision was in the northeast
quadrant of the intersection. Thus at the moment of impact the truck was more than halfway
across the intersection (having arrived there at a speed of between 4 and 10 miles per hour
after entering the intersection before the scooter), while the scooter was less than halfway into
the intersection. The impact threw plaintiff more than 10 feet (a measurement from the point
where the scooter lay to where plaintiff landed showed 14 feet) from his scooter through the
air in the direction the scooter was traveling. Plaintiff testified that he approached the
intersection at an estimated speed of 20 to 25 miles per hour; when about 25 to 30 feet from
the intersection, he saw the pickup approaching from his left, reduced his throttle, noted the
pickup slowing as if for a stop, proceeded into the intersection, and then found the pickup
upon him; and that he attempted to avoid the collision by swerving to his right.
by swerving to his right. Appellant insists that as this is the only testimony of plaintiff's speed
there is no evidence to sustain the court's finding of excessive speed on his part. From the
evidence we have recited, however, supported by a number of photographs, it was within the
province of the court to reject plaintiff's estimate of his own speed and to conclude that his
speed must have been considerably greater. We do not agree with appellant's contention that
Mathis's testimony is incredible. For a case very much in point see Stryker v. Hastie, 131 Ore.
282, 282 P. 1087, 1088. The parties there were reversedthe defendant driving west on a
through street and the plaintiff approaching the intersection from the south. The plaintiff
testified that she made a full stop at the intersection, had a view to the right of 200 feet, saw
no car approaching, and without looking to the right again, proceeded to cross the intersection
at 6 miles an hour. The street was 36 feet wide and the collision with defendant's car occurred
a little beyond the center. The court said: If plaintiff's testimony is to be believed that, during
the time it took her to drive at the rate of 6 miles per hour over one half of the intersection, or
a distance of a little over 18 feet, defendant had driven 200 feet or more during that time, and
if defendant's testimony is to be believed that he did not see her as she was crossing the
intersection almost directly in front of him, it shows that he must have been driving both
carelessly and at an unlawful rate of speed. The truth or falsity of their testimony was for the
jury, it being the exclusive judge of the credibility of both of said witnesses. A very similar
set of facts was also involved in Lipp v. Moon, 100 Cal.App. 618, 280 P. 710, 711 (although
the statute there gave the vehicle approaching from the right the right of way provided such
vehicle is traveling at a lawful speed),
1
holding that the court's finding, based on
substantially conflicting evidence, that the plaintiff was negligent and the defendant not,
was conclusive on appeal. The court noted that from the testimony of the position of the
vehicles, the distance they had traveled into the intersection, the skid marks, etc., and the
defendant's testimony, if believed, that he entered the intersection at less than 15 miles
an hour, the plaintiff must have approached and entered the intersection at a speed
greatly in excess of the 20 miles per hour as testified by the plaintiff's driver.
____________________

1
Even without such provision, such is the law in this state, Botts v. Rushton, 63 Nev. 426, 172 P.2d 147,
holding that the favored
substantially conflicting evidence, that the plaintiff was negligent and the defendant not, was
conclusive on appeal. The court noted that from the testimony of the position of the vehicles,
the distance they had traveled into the intersection, the skid marks, etc., and the defendant's
testimony, if believed, that he entered the intersection at less than 15 miles an hour, the
plaintiff must have approached and entered the intersection at a speed greatly in excess of the
20 miles per hour as testified by the plaintiff's driver. These and many similar cases, and
indeed our long accepted concept that the trier of the facts may lawfully discredit the
testimony of a witness when it is in conflict with evidence otherwise satisfactory to it, are a
complete answer to appellant's contention that the court's finding of plaintiff's excessive
speed is unsupported by and directly contrary to the evidence because, forsooth, plaintiff's
estimate of his own speed is the only testimony in the record on that point.
[Headnote 4]
Appellant contends that defendants were liable under the doctrine of last clear chance.
Deiss v. Southern Pacific Co., 56 Nev. 151, 47 P.2d 928, 53 P.2d 332. Under the facts the
doctrine is clearly not applicable.
[Headnote 5]
We have carefully considered the testimony of all other witnesses in the case (save the
large volume of testimony concerning the extent of plaintiff's personal injuries, which point
we do not reach in this appeal), but do not find it necessary to enlarge upon our statement of
the facts by reference thereto. Appellant's exhaustive brief and his oral argument have
received due consideration, but we cannot find that any of his assignments of error,
particularly his assignment of a want of substantial evidence to support the findings and
judgment, has merit.
____________________
driver's right of way is qualified and not absolute, and that his right of way applies when he is proceeding in a
lawful manner and at a lawful speed and is free from negligence in approaching the intersection.
want of substantial evidence to support the findings and judgment, has merit. The judgment
and order denying new trial are affirmed with costs.
____________
70 Nev. 533, 533 (1954) Bloom v. Southern Nev. Hospital
GRACE BLOOM, Appellant, v. SOUTHERN NEVADA MEMORIAL HOSPITAL,
THOMAS L. ADAMS, PARIS U. STEWART, JESSE WHIPPLE, W. E. BAKER,
DOROTHY LAUNDERS, Respondents.
No. 3799
November 5, 1954. 275 P.2d 885.
Department No. 1.
Action against county hospital for tort. From a holding that hospital was not subject to
suit, plaintiff appealed. The Supreme Court, Merrill, J., held that hospital, which was created
pursuant to statute authorizing counties to establish county hospitals, was without legal entity
and was not subject to suit.
Affirmed.
George E. Franklin, Jr., of Las Vegas, for Appellant.
Roger D. Foley, District Attorney, Clark County, for Respondents.
Hospitals.
Hospital, which was created pursuant to statute authorizing counties to establish county hospital, was
without legal entity and was not subject to suit for tort. N.C.L.1929 and 1943-1949 Supp., sec. 2225 et
seq.
OPINION
This is an appeal from order of the trial court dismissing the complaint of appellant as
plaintiff below.
The sole question raised is whether respondent hospital is subject to suit for tort. The trial
court ruled that it was not. This respondent is a public hospital established by Clark County
pursuant to the authority of sec. 2225 et seq., N.C.L.1929, Supp. 1943-1949. The individual
respondents are the elected hospital trustees and are sued in that capacity.
Appellant, as plaintiff, alleges in her complaint that while a patient at the hospital she
suffered injury due to negligence of the hospital in maintaining defective equipment. She
alleges that she was not an indigent patient but paid in full for all services rendered to her and
equipment used by her at the hospital. She contends that the liability of a county hospital for
tort depends upon whether, in the commission of the tort, the institution was engaged in a
governmental or a proprietary function; that in providing services to her as a paying patient
respondent hospital was engaged in a proprietary function and thus is liable.
We do not reach the questions posed by these contentions, however. The disposition of
this matter does not depend upon the nature of the function performed by the hospital or
whether, under the circumstances of this case, sovereign immunity from suit or from liability
may be said to have been waived. It is thus unnecessary for us to discuss Cauble v. Beemer,
64 Nev. 77, 177 P.2d 677, or Granite Oil Co. v. Douglas County, 67 Nev. 388, 219 P.2d 191,
16 A.L.R.2d 1069, touching upon these questions.
It is settled law that county hospitals created pursuant to the cited statutory authority are
without legal entity and for this reason are not subject to suit. McKay v. Washoe General
Hospital, 55 Nev. 336, 33 P.2d 755, 756. In that case this court stated, The act under which
the defendant hospital was organized provides that any county may establish a public
hospital in the following manner.' The act did not create a corporation, but merely authorized
the respective counties to establish a hospital, and it did not provide that such hospital might
sue or be sued."
sue or be sued. See Granite Oil Co. v. Douglas County, supra, for a discussion of this
decision.
Since the decision in the McKay case, sec. 2228, N.C.L.1929, Supp. 1943-1949, dealing
with the powers and duties of the hospital trustees, has been amended to empower the trustees
by proper legal action to collect claims due, owing and unpaid to said public hospital from
any person dealing with the same * * *. This authority granted to the trustees does not,
however, breathe corporate life into the institution they represent, or in any other manner
provide it with independent entity.
____________
70 Nev. 535, 535 (1954) Bynum v. Frisby
HARVEY A. BYNUM, Appellant, v. GEORGE W.
FRISBY, Respondent.
No. 3800
November 15, 1954. 276 P.2d 487.
Department No. 2.
From a summary judgment for defendant, plaintiff appealed. The Supreme Court, Eather,
C. J., held that issue whether the accounting made prior to trial was true and correct was issue
which plaintiff was entitled to have tried, and, therefore, grant of summary judgment for
defendant was improper.
Judgment Reversed.
Dotson & Earl, R. Dale Cook, and George E. Marshall, all of Las Vegas, Attorneys for
Appellant.
G. William Coulthard and Alvin N. Wartman, Las Vegas, Attorneys for Respondent.
Judgment.
In accounting proceeding, issue whether the accounting made prior to trial was true and correct was
issue which plaintiff was entitled to have tried, and therefore grant of summary judgment for defendant
was improper.
OPINION
This is an appeal from summary judgment entered in favor of respondent, as defendant
below. The action is one for an accounting brought by appellant pursuant to terms of the
following agreement:
Agreement
This Agreement made and entered into as of the 1st day of April, 1946, by and between
George W. Frisby and Dave Anderson, co-partners doing business under the name of Club
Kit Carson', Parties of the First Part, and Harvey A. Bynum, Party of the Second Part,
Witnesseth:
Recitals:
The Parties of the First Part have a lease dated November ___, 1945, from Nate Mack
and wife, and James S. Fulcher and wife, covering on a portion of the Northwest Quarter of
Section 16, Township 21, S., Range 61 E., M.D.B.&M., in the County of Clark, State of
Nevada, upon which leased parcel of land they have constructed a club building consisting of
bar room, casino and dining hall, known as Club Kit Carson'.
The Party of the Second Part has rendered services to the Parties of the First Part and is to
be compensated therefor.
The Parties of the First Part have contributed to their co-partnership as capital therefor,
the sum of Sixty-Two Thousand Five Hundred ($62,500.00) Dollars.
The Parties of the First Part desire to assign to the Party of the Second Part a twenty
percent (20%) interest in said co-partnership, upon the terms and conditions hereinafter
stated, to-wit:
Now, Therefore it is Agreed Between the Parties Hereto, as follows:
1. The Parties of the First Part do hereby sell, assign, transfer and set over to the Party
of the Second Part, a twenty {20%) percent interest of, in and to that certain
co-partnership existing between the Parties of the First Part and known as and called
'Club Kit Carson'.
assign, transfer and set over to the Party of the Second Part, a twenty (20%) percent interest
of, in and to that certain co-partnership existing between the Parties of the First Part and
known as and called Club Kit Carson'.
2. It is understood and agreed between the parties hereto that the Party of the Second Part
is not a partner with the Parties of the First Part in said Club Kit Carson', nor shall said
Second Party be permitted to interfere in the management or administration of the partnership
business and affairs or to acquire any information or account of partnership transactions, or to
inspect the partnership books, but shall be entitled to receive, in accordance with this
contract, twenty per cent (20%) of the profits to which the Parties of the First Part would
otherwise be entitled, and in case of a dissolution of said partnership, the Party of the Second
Part shall be entitled to receive from the Parties of the First Part said twenty percent (20%)
interest, and may require an account from the date of the last account agreed to between the
3. It is understood and agreed that before there shall be any division of profits between
the Parties of the First Part and the Party of the Second Part, the said Parties of the First Part
shall be entitled to deduct and retain the said sum of $62,500.00 so advanced by them as
aforesaid, and said sum shall be considered as a loan from the said First Parties to the
partnership, but that after said First Parties shall have received from said partnership said sum
of $62,500.00, then all profits from the partnership shall be divided, twenty percent (20%) to
the Party of the Second Part, and eighty percent (80%) to the Parties of the First Part.
4. The Parties of the First Part have this day paid to the Party of the Second Part the sum
of Two Thousand Dollars ($2,000.00) which shall be considered as an advance on said share
of the profits, and the Parties of the First Part shall in any settlement hereafter made with said
Second Party, be entitled to a credit of $2,000.00.
5. It is understood and agreed that all other agreements between the parties hereto are
terminated and cancelled as of the date of this agreement.
In Witness Whereof, the parties hereto have hereunto set their hands as of the day and
year first above written.
(Signed) Dave Anderson
George W. Frisby
Harvey A. Bynum,
Party of the Second Part.
It appears that the partnership of respondent and Anderson (parties to the above
agreement) has been terminated and that respondent has acquired all assets formerly held by
the partnership.
After commencement of the action respondent furnished an accounting to appellant and
the trial court allowed appellant time within which to file objections thereto. The following
objections were made: (1) That depreciation charged was in fact return of capital. (2) That no
showing was made as to receipts by the partnership from sale of partnership assets. (3) That
no certification of the account was furnished, nor was there any indication that it was made
from the original records.
These objections were made the subject of a hearing before the trial court, and following
hearing were overruled. Upon motion of respondent the court then granted summary
judgment in his favor.
In so acting we feel the court erred. The correctness of the accounting remained an issue of
fact. In granting summary judgment the trial court must in effect have determined the
accounting to be true and correct. This was, then, a determination of fact upon an issue which
the appellant was entitled to have tried. It was not such a determination as properly could be
made upon summary judgment. Parman v. Petricciani, 70 Nev. 427, 272 P.2d 492.
One of appellant's principal contentions upon this appeal is that no accounting was made
with respect to the assets of the partnership.
appeal is that no accounting was made with respect to the assets of the partnership. Thus the
sufficiency of the accounting is the very issue upon which the matter comes to us upon
appeal.
In the case at bar, appellant has shown that there is an issue to be tried. That it may be
tried, the judgment is reversed, appellant to have his costs on appeal.
____________
70 Nev. 539, 539 (1954) Havas Used Cars v. Lundy
HAVAS USED CARS, INC., a Nevada Corporation, Appellant, v. RAY LUNDY, Doing
Business as RAY LUNDY'S GARAGE, Respondent.
No. 3801
November 22, 1954. 276 P.2d 727.
Appeal from judgment of Eighth Judicial District Court, Clark County; Frank McNamee,
Judge, Department No. 1.
Claim and delivery action by conditional sale vendor of automobile, upon default in
payments by conditional vendee, to recover automobile from possession of automobile
repairman who had installed rebuilt engine at request of conditional vendee, prior to time of
his default, with understanding that title and possession of rebuilt engine would remain with
repairman until payment of his bill. From a judgment for defendant for value of rebuilt
engine, plaintiff appealed. The Supreme Court, Badt, J., held that conditional vendor of
automobile was not entitled to engine which had been installed in chassis by automobile
repairman, who had installed such engine at request of conditional vendee prior to time of his
default, on ground that engine had become part of automobile by accession where engine was
readily detachable without damage to rest of automobile.
Affirmed.
David Zenoff and Calvin C. Magleby, both of Las Vegas, for Appellant.
Hawkins & Cannon, of Las Vegas, for Respondent.
Accession.
Conditional vendor of automobile was not entitled to engine which had been installed in chassis by
automobile repairman, who had installed such engine (also on title-retention basis) at request of
conditional vendee, prior to time of his default, on ground that engine had become part of automobile by
accession where engine was readily detachable without damage to rest of automobile.
OPINION
Where an automobile repairman has installed a rebuilt engine in a car at the request of a
conditional sale vendee lawfully in possession, with the understanding that the repairman
shall retain title to the engine and possession of the engine and car till payment of his bill, and
the engine thus installed can be readily removed without damage to the other parts of the car,
is such repairman entitled to remove the engine, or entitled to a judgment for its value, in a
claim and delivery action brought by the conditional sale vendor upon the conditional
vendee's default in payments?
We answer this question in the affirmative, as did the trial court, against the contention of
the conditional sale vendor, plaintiff below and appellant here, that by reason of the doctrine
of accession it became entitled to the new engine so united to the car as to constitute a part of
the vehicle.
Plaintiff had sold a Hudson automobile under a conditional sale contract to one Grimes,
who, without the knowledge or consent of plaintiff, delivered the car to defendant for
installation of a new engine. On completion of the repairs, defendant retained possession of
the car because of nonpayment of his bill. Plaintiff, learning that the car was in defendant's
possession, demanded possession by reason of Grimes' default.
possession by reason of Grimes' default. Defendant refused to deliver possession without first
removing the new engine. Plaintiff then took the car under claim and delivery. The court
found that defendant retained title to said rebuilt engine and accessories installed in said
automobile, and that they were defendant's property at the time said car was repossessed by
the plaintiff in this action. It also found that the engine could be removed without material
injury or damage to the automobile and enhanced the value thereof to the extent of $347.75,
the value of the engine and parts; that the plaintiff, in repossessing the car with the new
engine, converted the latter to his own use to defendant's damage in said sum; but disallowed
defendant's claim for work and labor of installation of the reasonable value of $99.50, under
our statutory provision that the lien therefor should be a secondary lien when the car is sold
on a conditional sales contract. Sec. 3779.03, N.C.L. 1943-1949 Supp. See amendment, Stats.
1953, 377.
Appellant concedes that the trial court found a reservation of title to the engine by the
defendant, but contends that, although there is a division of authority as to the effect of such
reservation, the better view is that the same is not good as against a chattel mortgagee or a
conditional seller of the principal property to which it is attached.
1
Cases cited in support of
this view are for the most part distinguishable upon the facts, but if they may be said to
indicate or imply a rule of law contrary to our conclusion in this case, such would not be in
accord with the holding of this court in Clarke v. Johnson, 43 Nev. 359, 187 P. 510. There
one Crumley had installed upon two trucks, for the contracting vendee, $339.40 repairs and
$477 new tires. Under claim and delivery by the contracting vendor, the contracting vendee
defaulted as in the present case. The trial court had found that the repairs item represented
value that could not be removed from the trucks.
____________________

1
See Annotation 92 A.L.R. 425, Law of accession as applied to automobiles, in which the author lists (a)
cases holding property to pass by accession and (b) cases holding property not to pass by accession.
repairs item represented value that could not be removed from the trucks. This court, upon
such finding, held that it was error to render judgment for the repairs item, but affirmed the
judgment for the value of the tires. It is true that the court there construed a provision of the
sale contract as a recognition that the tires were separable and severable distinct parts. This,
however, does not weaken the court's rejection of the contention that the tires were
accessions. The conclusion of separability and severability in Clarke v. Johnson may indeed
have been aided by the terms of the contract. Here such conclusion is supported by the
finding of the trial court based on undisputed evidence.
Under the trial court's finding of the retention of title to the engine by the defendant and
the ready removability of the engine without damage to the car, neither of which findings is
questioned, we are led to the conclusion, under Clarke v. Johnson, supra, that the engine did
not become an accession. The distinction between the installation of a new set of tires and the
installation of a new engine is, after all, one of degree only. The car could no more be
operated without tires than it could without an engine. Each case in which the doctrine of
accession is advanced must be decided on its own facts.
It should be noted that respondent's brief cites a dozen or more authorities in which Clarke
v. Johnson has been cited with approval. As appellant had made no comment in this regard,
we have not found it necessary to examine those cases. To like effect as Clarke v. Johnson is
Atlas Assurance Co. v. Gibbs, 121 Conn. 188, 183 A. 690, 692, which also involved the
installation of an engine claimed to have become part of the chassis by accession, although it
was readily detachable without damage to the automobile. The court said: If, as appears
here, the engine can be readily detached from the car without damage to the rest of it, to
permit the plaintiff to take the engine which lawfully belongs to the defendant would be to
impose an unjust loss upon the latter and give to the former an enhancement of value to
which he is not entitled."
the former an enhancement of value to which he is not entitled.
The judgment is affirmed with costs.
____________
VIVIAN H. DEARDEN, Appellant, v. ALBERT D.
GALLI, Respondent.
No. 3772
December 2, 1954. 277 P.2d 381.
Appeal from the Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Action by employee against employer for injuries sustained by employee in accident on
employer's ranch. The Seventh Judicial District Court, White Pine County, Harry M. Watson,
Judge, entered judgment for plaintiff and defendant appealed. The Supreme Court, Eather, C.
J., held with regard to employee's contention on appeal that any error in instructing with
regard to contributory negligence could not have been prejudicial since contributory
negligence had not been an issue in case, that record established that trial had been conducted
throughout upon supposition that defense of contributory negligence had been sufficiently
pleaded to warrant its going to jury and that no objection had been made with regard to
pleading of issue.
See also 70 Nev. 410, 269 P.2d 1014.
Reversed and Remanded.
Robert R. Gill, of Ely; Pike & McLaughlin, of Reno; Stewart, Cannon & Hanson, and
Ernest F. Baldwin, of Salt Lake City, Utah, for Appellant.
Gray & Horton, of Ely, for Respondent.
1. Master and Servant.
In action by employee against employer for injuries sustained when gate on truck fell striking employee,
an inference could have been drawn by jury, from evidence as to the manner in which accident occurred, to
the effect that pin holding gate in place had been carelessly or improperly inserted by employee.
2. Trial.
Where a case is tried by respective parties on theory that pleadings present an issue of contributory
negligence, and where no objection has been made to the form of pleadings, and there is substantial
evidence to support this issue, it becomes duty of trial court to give to jury such appropriate instructions on
this subject as have been offered by defendant.
On employer's appeal, wherein respondent employee contended that any error in instructions with regard
to contributory negligence could not have been prejudicial since contributory negligence had not been an
issue in case, record established that trial had been conducted throughout upon supposition that defense of
contributory negligence had been sufficiently pleaded to warrant its going to jury, and no objection had
been made with regard to pleading of issue.
OPINION
This action was instituted by Albert D. Galli, respondent, for damages sustained in an
accident which occurred on May 11, 1951, on the ranch of the appellant, Vivian H. Dearden,
in Garrison, Utah.
The parties will be referred to as in the court below, and to better appreciate the
contentions of both parties it is necessary that we briefly state the facts.
The plaintiff, a man of 62 years, had been employed steadily by the defendant for the past
18 months. Before that time, he had worked for the defendant and other members of the
Dearden family at various times. Plaintiff did general farm work, although most of his time
was spent in feeding cattle and irrigating. On the day of the accident, plaintiff was engaged in
irrigating when the defendant requested him to help in loading a spike-toothed harrow onto
the bed of a General Motors Corporation truck, which was equipped with an Omaha stock
rack about five feet high.
rack about five feet high. Access to the enclosed area of the bed was through an endgate,
located on the rear of the rack, which could be raised on guides provided by two stringers,
lined on the inside with angle iron. The gate weighed from 60 to 80 pounds. When the gate
was raised it was held in that position by an iron pin inserted through a hole in the adjacent
stringer and underneath the crosspiece of the gate.
Immediately before the accident, the defendant got inside the truck bed and lifted the gate.
When it was fully raised he asked the plaintiff to insert the iron pin, which the plaintiff
attempted to do. He was not sure whether or not he inserted the pin to its full length;
however, the pin was apparently inserted far enough to hold the gate up temporarily.
Thereafter, the defendant lifted on the harrow from the inside of the truck bed and the
plaintiff lifted from the outside. To get the harrow through the gate opening it was necessary
to slant it slightly. After the two men had lifted the harrow through the opening the gate fell,
striking both of plaintiff's arms in the forearm area between his wrist and elbow, causing an
incomplete linear fracture of the right forearm, and a simple fracture of the left forearm. After
the accident, the plaintiff was taken to the Steptoe Hospital in Ely, Nevada, for treatment,
after which he was treated at intervals by Dr. T. V. Ross, who released him on or about
August 1.
Upon trial and submission of the case to the jury a verdict was returned against defendant
in the sum of $20,680. Judgment was entered upon the verdict, together with costs and
disbursements.
Defendant's motion for a new trial was denied and this appeal is prosecuted from the
judgment rendered upon the verdict of the jury and from the denial of defendant's motion for
a new trial.
The points made in support of the appeal are as follows:
1. The court erred in not directing a verdict of No cause of Action" for the defendant
and against the plaintiff at the close of all the evidence.
cause of Action for the defendant and against the plaintiff at the close of all the evidence.
2. The court erred in its instructions to the jury and particularly in failing to submit to the
jury the issue of whether the plaintiff was guilty of contributory negligence.
3. The court erred in failing to grant defendant's motion for a mistrial after counsel for the
plaintiff in his voir dire examination of the jurors informed them that the defendant was
covered by a policy of liability insurance.
4. The amount of damages awarded was excessive, indicating the jurors in arriving at their
verdict were governed by passion or prejudice and failed to follow the instructions of the
court.
Appellant contends that the court committed error in giving two instructions relative to
respondent's defense of contributory negligence on the part of plaintiff. These are instructions
Numbers 6 and 10 and read as follows:
Instruction No. 6. You are instructed that before you can find a verdict in favor of the
Plaintiff against the Defendant in this action, you must find from a preponderance or greater
weight of the evidence not only that the Defendant was negligent in one or more of the
respects alleged in Plaintiff's Complaint, but also that such negligence on his part was the
proximate cause of said accident. If you find from the evidence that Defendant was not
negligent, or if you find that he was negligent but that his negligence was not the proximate
cause of the accident, or if you find that Plaintiff was negligent in any respect whatsoever,
and that his negligence was a proximate cause of said injury then the Defendant is not liable.
Instruction No. 10. You are instructed that if you find from the evidence that while said
gate was in a raised position, the Plaintiff failed to insert the iron pin into the hole and
underneath said gate to the full length of said pin and that under the evidence it was and
should have been apparent to a reasonable person under the circumstances that failure to
insert said pin to its full length would permit the gate to fall, then you are instructed that
such failure, if any, was the proximate cause of said accident, then Plaintiff cannot
recover and you must return a verdict in favor of the Defendant."
have been apparent to a reasonable person under the circumstances that failure to insert said
pin to its full length would permit the gate to fall, then you are instructed that such failure, if
any, was the proximate cause of said accident, then Plaintiff cannot recover and you must
return a verdict in favor of the Defendant.
Appellant's objection to these instructions is that both of them predicate the validity of the
defense upon the proposition that the plaintiff's negligence was a proximate cause of said
injury and do not permit of the possibility that the plaintiff's negligence may have
contributed or have been a proximate contributing cause of the injury. It is contended that by
the language of the instructions the jury would not have felt able to decide for the defendant
on the basis of the plaintiff's contributory negligence unless it felt that the contributory
negligence was the sole proximate cause of the accident. Respondent does not appear to deny
that such is the effect of the instructions.
[Headnote 1]
He contends that any error which may thus have been committed was not prejudicial for
the reason that contributory negligence could not be regarded as an issue in the case. He
contends first that there was no evidence of contributory negligence. We feel, however, that
an inference may quite properly have been drawn by the jury from the evidence as to the
manner in which the accident occurred, to the effect that the pin was carelessly or improperly
inserted by the plaintiff.
Respondent's principal contention is that contributory negligence was not pleaded and
therefore could not properly have been regarded as an issue. The answer alleges in its first
affirmative defense that the end gate dropped suddenly from a cause unknown to defendant.
It further alleges that at the time the iron pin was inserted in the end gate by plaintiff,
defendant was not in a position to see and did not see whether or not it was properly inserted
to its full length or depth of the hole."
hole. As a third affirmative defense, answer alleges: That whether the falling of the end
gate as aforesaid was due to faulty or careless placement of the pin therein by plaintiff or to
the rack being swayed by wind or both causes, plaintiff was familiar with the rack, it was in
the same condition as when previously used, the danger incident to the pin coming out was
equally or more apparent to plaintiff than to defendant due to their respective positions at the
time, and the danger of injury by the falling of the end gate if the pin should come out, was an
assumed risk on the part of the defendant. It might quite properly be said that the answer had
failed specifically or sufficiently to allege contributory negligence. It is, however, clear from
the allegations of the answer that while the defendant did not know of the cause of the
accident or of the dropping of the endgate, he did have in mind the possibility that the pin
may not have been properly inserted and that the accident may have resulted from the faulty
or careless placement of the pin.
Subsequently the defendant moved to amend the answer in order to plead negligence on
the part of the plaintiff so that defendant may have the benefit of such defense in the event
evidence be adduced to support such further defense. The amendment sought would have
added a fourth separate defense as follows: That if the falling of the end gate as aforesaid
was due to faulty or careless placement of the pin therein by plaintiff, then said conduct on
his part constituted negligence which solely caused or proximately contributed to cause said
accident. The motion to amend was denied. The minute entry with reference to this action,
signed by the district judge, reads as follows: At 10:35 A.M. a motion to amend answer was
made by defense and was ordered denied for the reason that matter is covered adequately by
other pleadings in answer.
The matter thereupon proceeded to trial. Following the introduction of all evidence, the
defendant moved for directed verdict "in favor of the defendant and against the plaintiff
on the grounds and for the reason that the evidence shows conclusively and as a matter
of law, and to the extent that reasonable minds could not differ, that the plaintiff himself
was guilty of negligence which proximately contributed to the accident and its resulting
injuries, in first not inserting the iron pin under the gate to its full extent."
for directed verdict in favor of the defendant and against the plaintiff on the grounds and for
the reason that the evidence shows conclusively and as a matter of law, and to the extent that
reasonable minds could not differ, that the plaintiff himself was guilty of negligence which
proximately contributed to the accident and its resulting injuries, in first not inserting the iron
pin under the gate to its full extent. This motion was argued to the court by counsel for
defendant. Counsel for plaintiff did not answer the argument, did not contend that
contributory negligence was not an issue, but simply stated: I will submit it. The court in
ruling upon the motion, did not rule that the issue of contributory negligence was not properly
before the court, but stated: The motion is denied. The court feels there is ample evidence to
go to the jury. To rule on the motion would be an invasion of the province of the jury.
The instructions were then given to the jury, including Instructions 6 and 10 heretofore
quoted. While it appears that counsel for defendant excepted to the language of these
instructions, it does not appear that counsel for plaintiff objected to them.
In arguing the case to the jury, counsel for the defendant apparently argued the matter of
contributory negligence for it appears that counsel for the plaintiff, during the course of this
argument, objected to such argument being made, as follows: I submit that it is improper
argument; he is arguing contributory negligence. The court's response to this was as follows:
I think it is within the scope; the objection is overruled.
Trial of the matter was had September 29, 1952. On May 28, 1953, decision was rendered
by the trial court on defendant's motion for a new trial. At this time, with reference to the
court's action in denying defendant's motion to amend the answer, the trial court stated:
Defendant's motion for permission to amend his answer to allege the negligence of plaintiff,
having been opposed by plaintiff, that the granting of such motion at the opening of the trial
would require postponement of the trial at the expense of [plaintiff] to permit preparation
to meet the new defense, and further that such motion was not supported by affidavits as
in S640 {b) N.C.L. 1931-41 Supp.
opening of the trial would require postponement of the trial at the expense of [plaintiff] to
permit preparation to meet the new defense, and further that such motion was not supported
by affidavits as in 8640 (b) N.C.L. 1931-41 Supp. (since superseded by N.R.C.P.). The
motion was denied without prejudice to renew the same if the evidence would support such
amendment to conform to the proof. The order was excepted to and the motion was not
renewed. * * * The proposed amendment as an addition to defendant's third separate and
affirmative defense averring assumption of the risk was, we think, bad in form, being
equivocal and not the pleading of an ultimate fact.
A review of the record in the respects noted would seem to lead inevitably to the
conclusion that while contributory negligence was never affirmatively pleaded, the reason for
this was that the true facts were unknown to the defendant. It is obvious, however, that from
the outset the defendant had in mind the possibility that the evidence would support an
inference in this respect and that the defendant intended to rely upon contributory negligence
should the facts permit such reliance. This fact was made abundantly clear to counsel and to
the court by motion to amend prior to trial. The action taken by the court at that time, as
reflected by the minute order, clearly indicates that the trial court understood that the
defendant intended to rely upon contributory negligence should the evidence support such
theory. It might well be said that the law of the case with reference to the sufficiency of the
pleading was established at that time by the minute order entered by the court indicating that
the defense of contributory negligence had been sufficiently covered by the answer.
[Headnote 2]
The argument of counsel for the defendant on motion for directed verdict and the
argument to the jury, both indicated clearly the defendant's theory of defense upon completion
of the taking of evidence. The action taken by the judge in denying the motion for directed
verdict and in overruling plaintiff's objection to the argument of contributory negligence
to the jury, indicate that the court at that time respected defendant's theory of
contributory negligence as valid.
and in overruling plaintiff's objection to the argument of contributory negligence to the jury,
indicate that the court at that time respected defendant's theory of contributory negligence as
valid. The fact that the judge gave Instructions 6 and 10, covering the matter of contributory
negligence, further supports our view that the judge regarded this as a valid theory of defense
and one which should go to the jury for determination. We cannot, then, avoid the conclusion
that counsel and the court consistently throughout the trial of the case regarded contributory
negligence as a theory of defense and that the matter was conducted throughout upon the
supposition that such a defense had been sufficiently pleaded to warrant its going to the jury
for determination. Under these circumstances, can it be said that defendant's failure to renew
his motion to amend in order that the allegations of the answer might conform to the proof
constituted a waiver of defendant's right to rely upon contributory negligence as a theory of
defense? It should be noted that the action of the court, taken at the time the matter was
presented to the jury both by argument and by instruction, would indicate that in the view of
the court there had not been such a waiver. Furthermore, the law would appear to be to the
effect that where a case is tried by the respective parties on the theory that the pleadings
present an issue of contributory negligence, and where no objection has been made to the
form of the pleadings and there is substantial evidence to support this issue, it becomes the
duty of the trial court to give to the jury such appropriate instructions on this subject as have
been offered by the defendant. Hoffman v. S. P. Co., 84 Cal.App. 337, 258 P. 397, 400, and
cases cited therein.
[Headnote 3]
This court is neither deciding nor implying that the evidence disclosed by the record in this
case established the fact that plaintiff was guilty of contributory negligence, but is merely
holding that those facts furnish substantial evidence that the matter was conducted
throughout upon the supposition that such a defense had been sufficiently pleaded to
warrant its going to the jury for determination under appropriate instructions which were
offered with relation to the subject of contributory negligence.
throughout upon the supposition that such a defense had been sufficiently pleaded to warrant
its going to the jury for determination under appropriate instructions which were offered with
relation to the subject of contributory negligence.
It is unnecessary to pass upon other grounds urged by defendant for reversal.
The judgment and order denying defendant's motion for a new trial are reversed with costs,
and the case is remanded for a new trial.
January 4, 1955.
Per Curiam:
Rehearing denied.
____________
70 Nev. 553, 553 (1954) Plunkett v. Plunkett
ROBERTA PLUNKETT, Appellant, v. MARVIN K.
PLUNKETT, Respondent.
No. 3826
December 8, 1954. 277 P.2d 380.
On appellant wife's motion for allowance of $250 costs and expenses and $500 attorney
fee on appeal from judgment of Eighth Judicial District Court, Clark County, A. S.
Henderson, Judge, Department No. 2, the Supreme Court held that where preparation of
record on appeal had been completed, opening brief on merits had been filed, reply to
respondent's seven page answering brief would be short, preparation for argument on appeal
would comprise only review of work already done, and only remaining function for counsel
for appellant was apparently presentation of oral argument on merits of appeal, and time and
expense required in traveling for purpose of this presentation, respondent would be ordered to
pay sum of $200 to appellant's attorneys.
Robert L. Gifford, of Las Vegas, for Appellant.
Morse, Graves & Compton, of Las Vegas, for Respondent.
Where expenses of filing fees in supreme court, securing of appeal bond, clerk's and reporter's transcript
fees for preparation of transcript of files of district court, together with stenographic notes of reports of
testimony, all of documentary evidence, orders of court, and pleadings, papers, and records making up
record on appeal, had been met before appellant-wife moved for allowance of such costs and expenses,
motion was denied, since motion of this nature may be allowed only prospectively.
Where preparation of record on appeal had been completed, opening brief on merits had been filed, reply
to respondent's seven page answering brief would be short, preparation for argument on appeal would
comprise only review of work already done, and only remaining function for counsel for appellant was
apparently presentation of oral argument on merits of appeal, and time and expense required
in traveling for purpose of this presentation, respondent was ordered, on
appellant-wife's motion for allowance of $500 attorney fee on appeal, to pay sum of
$200 to appellant's attorneys.
merits of appeal, and time and expense required in traveling for purpose of this presentation, respondent
was ordered, on appellant-wife's motion for allowance of $500 attorney fee on appeal, to pay sum of $200
to appellant's attorneys.
OPINION
On Motion for Allowances.
Granted in Part, Denied in Part.
Per Curiam:
[Headnote 1]
Appellant wife has moved for an allowance of $250 costs and expenses and $500 attorney
fee on appeal. The motion is supported by the appellant's affidavit and opposed by
respondent's counter affidavit. The specified required costs are filing fees in the Supreme
Court * * * securing of an appeal bond, for clerk's and reporter's transcript fees for the
preparation of a transcript of the files of the * * * district court, together with stenographic
notes of the reports of the testimony, all of the documentary evidence, orders of court, and the
pleadings, papers, and records making up the record on appeal. The record shows that the
expense of all of these items has already been met and, as a motion of this nature may be
allowed only prospectively, the same is denied. Blouin v. Blouin, 66 Nev. 137, 143, 206 P.2d
608.
[Headnote 2]
As to counsel fees, the preparation of the record on appeal has been completed, the
opening brief on the merits has been filed, the reply to respondent's seven-page answering
brief will be short, the preparation for the argument on appeal will comprise only a review of
the work already done, and the only remaining function for counsel for appellant is apparently
the presentation of the oral argument on the merits of the appeal and the time and expense
required in traveling from Las Vegas to Carson City for the purpose. For the last-named items
it is ordered that respondent pay to appellant's attorneys the sum of $200. As it appears that
respondent is presently at Anderson A. F. Base, Guam, M. I., said sum may be paid within
thirty days from date of counsel's receipt of copy of this order.
respondent is presently at Anderson A. F. Base, Guam, M. I., said sum may be paid within
thirty days from date of counsel's receipt of copy of this order.
This order is without prejudice to the making of other and additional orders with regard to
payment of costs and attorney fees in the court's disposition of the appeal on the merits. The
appeal will stand in abeyance until payment by respondent of sum herein ordered, unless the
appellant shall voluntarily elect to proceed despite any failure of compliance. Caye v. Caye,
66 Nev. 78, 83, 203 P.2d 1013, 211 P.2d 252.
____________
70 Nev. 555, 555 (1954) Scott v. Nevada Employment Security
JAMES D. SCOTT, Appellant, v. NEVADA EMPLOYMENT
SECURITY DEPARTMENT, Respondent.
No. 3803
December 28, 1954. 278 P.2d 602.
Appeal from the Second Judicial District Court, Washoe County; John S. Belford, Judge,
Department No. 1.
Claimant filed a claim with the Employment Security Department in its office in Churchill
County, which is in the First Judicial District of Nevada, for benefits under the
Unemployment Compensation Law. The claim was rejected, and he appealed to the Board of
Review, which sustained the Appeal Tribunal. The claimant then filed a petition in the
Second Judicial District Court of Washoe County, seeking review of determination of Board
of Review. The Second Judicial District Court of Washoe County, John S. Belford, Judge,
Department No. 1, entered order dismissing the petition, and the claimant appealed. The
Supreme Court, Eather, C. J., held that the Second Judicial District Court of Washoe County
did not have jurisdiction, in view of provision of the Unemployment Compensation Law that
any party aggrieved by a final decision of Board of Review may secure judicial review
thereof by commencing an action in the district court of the county where the appealed
claim was filed.
secure judicial review thereof by commencing an action in the district court of the county
where the appealed claim was filed.
Affirmed.
Martin J. Scanlan, of Reno, and C. Lester Zahniser, of Sparks, for Appellant.
Griswold, Vargas, Dillon & Bartlett, of Reno, for Respondent.
1. Social Security and Public Welfare.
Where claimant filed claim for benefits under Unemployment Compensation Law with Employment
Security Department in Churchill County, which is in First judicial district for Nevada, and claim was
rejected, and he appealed to Board of Review, which sustained Appeal Tribunal, Second judicial district
court in Washoe County had no jurisdiction of claimant's petition for review, in view of provision of the
Unemployment Compensation Law that any party aggrieved by final decision of Board of Review may
secure judicial review thereof by commencing action in district court of county where appealed claim was
filed. N.C.L.1943-1949 Supp., sec. 2825.06, subsec. 6(i), as amended by St. 1951, c. 233, sec. 9, subsec.
6.16.
Unemployment benefits have their roots in legislative enactments, and are not inherent rights of
inhabitants of the state, and therefore the legislature may lay down any reasonable and nondiscriminatory
conditions it may see fit concerning eligibility and procedure.
3. Constitutional Law; Social Security and Public Welfare.
Provision of Unemployment Compensation Law that any party aggrieved by final decision of Board of
Review may secure judicial review thereof by commencing action in district court of county wherein
appealed claim was filed does not violate constitutional provision giving to all district courts jurisdiction
over all cases in equity, and appellate jurisdiction from such other inferior tribunals as may be established
by law. N.C.L.1943-1949 Supp., sec. 2825.06, subsec. 6(i), as amended by St. 1951, c. 233, sec. 9, subsec.
6.16; Const. art. 6, sec. 6.
Where claimant filed claim for benefits under Unemployment Compensation Law with Employment
Security Department in its office in Churchill County, which is in First judicial district of Nevada, and
claim was rejected, and he appealed to Board of Review, which sustained Appeal Tribunal, and claimant
then filed petition for review in Second judicial district court in Washoe County, instead of in Churchill
County as required by Unemployment Compensation Law, district court for Washoe
County was not required to transfer petition to district court for Churchill County
instead of dismissing petition for lack of jurisdiction. N.C.L.1943-1949 Supp., sec.
Unemployment Compensation Law, district court for Washoe County was not required to transfer petition
to district court for Churchill County instead of dismissing petition for lack of jurisdiction.
N.C.L.1943-1949 Supp., sec. 2825.06, subsec. 6(i), as amended by St. 1951, c. 233, sec. 9, subsec. 6.16.
OPINION
A question of jurisdiction of the district court is involved in this appeal. Appellant filed a
claim with the Employment Security Department at its office in Churchill County, which is in
the First judicial district of Nevada, for benefits under the Unemployment Compensation Law
of Nevada. The claim was rejected and he appealed to the Board of Review, which sustained
the Appeal Tribunal. He then filed a petition in the Second judicial district court in and for
Washoe County, seeking a review of that determination by the board. The Nevada
Employment Security Department, respondent here, questioned the jurisdiction of that court,
and, when that court dismissed the petition for review, appellant brought the question here.
[Headnote 1]
Section 6(i) of section 2825.06 N.C.L., as amended by the Act of March 21, 1951 (Statutes
of 1951, at page 349), provides that any party aggrieved by a final decision of the Board of
Review may secure judicial review thereof by commencing an action in the district court of
the county wherein the appealed claim was filed. Inasmuch as appellant's claim was filed in
Churchill County, which is part of the First judicial district, it is obvious that by filing his
petition in the Second judicial district court in Washoe County, petitioner did not comply
with the statute.
[Headnote 2]
These unemployment benefits have their roots in legislative enactments; they are not
inherent rights of the inhabitants of the state. Hence, the legislature may lay down any
reasonable and nondiscriminatory conditions it may see fit concerning eligibility and
procedure.
it may see fit concerning eligibility and procedure. We see no hardship or unfairness in
requiring court review in the judicial district where the claim is first filed with the
Employment Security Department. In fact, we think the requirement stems from a desire to
aid the claimant because in most cases it is likely that claimant resides there and it would be a
hardship to require him to appear in another district. The right to petition for review is given
to the department as well as a claimant, and the department is thus prevented from going into
any district except where claimant first presented his claim and where, presumably, claimant
resides.
[Headnote 3]
Appellant reminds us that the Constitution of Nevada gives to all district courts of the state
jurisdiction over all cases in equity (Article VI. Section 6) and appellate jurisdiction from
such inferior tribunals as may be established by law. It is suggested by appellant that
respondent's contention would deprive the district court of jurisdiction already given to it by
the constitution and which the legislature may not take away; that the question of the proper
forum is one of venue rather than jurisdiction. We are unable to reach such a conclusion. The
constitution says, also, that district courts shall have appellate jurisdiction in cases arising in
courts of justice of the peace, but the legislature has provided that an appeal must be to the
district court of the County. Likewise, the constitution gives to district courts jurisdiction
relating to the estates of deceased persons and yet our probate code provides that exclusive
jurisdiction is in the district court of the county of which decedent was a resident. Those are
two of the many examples within the proper exercise of the legislative function that are never
questioned. We think the problem presented in this appeal must be answered in like manner:
Sacramento & San Joaquin Drainage District v. Superior Court, 196 Cal. 414, 238 P. 687;
Elberta Oil Company v. Superior Court, 74 Cal.App. 114, 239 P. 415.
An analogous situation was present in Minnesota Valley Canning Company v. Rehnblom,
242 Iowa 1112, 49 N.W.2d 553, 555, where the Workmen's Compensation Statute provided
that an aggrieved party could appeal to the district court of the county in which the injury
occurred. In holding that a court of another county did not have jurisdiction to entertain such
an appeal the Supreme Court of Iowa said, quoting from a former opinion:
* * * It may, therefore, be safely held that where a statute upon a particular subject has
provided a tribunal for the determination of questions connected with that subject, that the
jurisdiction thus conferred is exclusive, unless otherwise expressed or clearly manifested; * *
*.
An examination of one of the cases cited by appellant discloses a decision in harmony with
our conclusion here. In Ward v. Public Service Commission, 341 Mo. 227, 108 S.W.2d 136,
139, a statute provided that application might be made to the circuit court of the county
wherein the commission had its principal office, for review of a decision by the commission.
After an adverse decision by the commission, Ward obtained a restraining order by a circuit
court of another county. In reversing, the appellate court said:
We think the legislature had a right to say in what circuit courts the appellant could be
sued when it gave authority for it to be sued.
[Headnote 4]
Appellant says that the district court for Washoe County should have transferred the
petition to the district court for Churchill County instead of dismissing it. The conclusive
answer is that if the court did not have jurisdiction it could not have made an effective order
of any kind except the order of dismissal.
The order of dismissal is affirmed.
____________
In Memoriam
____________
Patrick A. McCarran
70 Nev. 561, 561 (1954) Memorial to Patrick A. McCarran
IN THE SUPREME COURT OF THE
STATE OF NEVADA
In the Matter of the Death of }
Honorable PATRICK A. McCARRAN }
Order

In respect to the memory of the late Honorable Patrick A. McCarran, who served for
many years as a Justice and Chief Justice of this Court and who departed this life on the 28th
day of September, 1954.
It Is Hereby Ordered that Virgil H. Wedge, as chairman, Charles A. Cantwell, Orville
R. Wilson, Hon. William D. Hatton, A. L. Scott, A. W. Ham, Sr., Hon. William E. Orr,
George J. Kenny and William Woodburn, Sr. be, and they hereby are, appointed as a
committee to draft and present to this court suitable resolutions expressing the high esteem in
which he was universally held and the sorrow of the members of the Bench and Bar of
Nevada because of his passing.
Done at Carson City, Nevada, this 4th day of October, 1954.
Edgar Eather,
Chief Justice.
Charles M. Merrill,
Associate Justice.
Milton B. Badt,
Associate Justice.
Attest: Ned A. Turner,
Clerk of the Supreme Court.
To the Honorable Chief Justice Edgar Eather, the Honorable Associate Justice Charles M.
Merrill, and the Honorable Associate Milton B. Badt, of the Supreme Court of the State
of Nevada:
In response to your Order entered October 4, 1954, the undersigned members of the
Bench and Bar of the State of Nevada respectfully submit the following Resolution,
attempting to express the high esteem in which the late United States Senior Senator for
Nevada, Honorable Patrick A. McCarran, was universally held, and the sorrow of the
members of the Bench and Bar of Nevada because of his passing.
the sorrow of the members of the Bench and Bar of Nevada because of his passing.
Virgil H. Wedge, A. L. Scott,
Chairman. A. W. Ham, Sr.,
Charles A. Cantwell, William E. Orr,
Orville R. Wilson, George J. Kenny,
William D. Hatton, William Woodburn, Sr.
RESOLUTION
Whereas, Honorable Patrick A. McCarran, who served for many years as Justice and
Chief Justice of the Supreme Court of the State of Nevada, departed this life on September
28, 1954; and
Whereas, The stepping stones on which he ascended to the pinnacle of international
fame are epitomized in the biographical sketch appearing as follows in the February, 1954
Congressional Directory for the 83d Congress:
McCarran, Pat (Patrick A.), Democrat, United States Senator; born in Reno, Nevada,
August 8, 1876; son of Patrick and Margaret (Shea) McCarran; married Martha Harriet
Weeks, August 10, 1903; childrenMargaret (Sister Margaret Patricia, H.N.), Mary (Sister
Mary Mercy, H.N.), Norine, Patricia (Mrs. Edwin P. Hay), and Patrick Samuel; A.B.,
University of Nevada, 1901; A.M., 1915; honorary LL.D., 1945; honorary LL.D.,
Georgetown University, 1943; engaged in farming and stock raising in Nevada; member
Nevada State Legislature, 1903; sponsor first State 8-hour day law in United States for mines,
mills, and smelters (1903); representative of Nevada to National Irrigation Congress, 1904;
admitted to Nevada bar, 1905; practiced in Tonopah and Goldfield during the mining booms
of those places; district attorney, Nye County, 1907-9; resumed practice in Reno, 1909;
associate justice Supreme Court of Nevada, 1913-17, chief justice, 1917-18; author of many
legal opinions, leading cases on water, mining, corporations, domestic relations, criminal law,
and civil procedure under the Code (Nevada Reports, 35 to 42); members, Nevada State
Library Commission, 1913-1S; member, Nevada Board of Pardons, 1913-1S; member,
Nevada State Board of Parole Commissioners, 1913-1S; State chairman, Four-Minute
Men, World War I; president, Nevada State Bar Association, 1920-21; president Truckee
River Water Users Association, 1921-22; vice president, American Bar Association,
1922-23; chairman, Nevada State Board of Bar Examiners, 1931-32; Member United
States Senate since 1933; author, first bill introduced in Congress for a separate Air Force
{1933); opposed Court packing bill {1937); author, Civil Aeronautics Act of 193S;
coauthor, Civilian Pilot Training Act {1939); author, Silver Purchase Act of 1939; author,
National Cattle Theft Act, 1941; chairman, Senate Committee on the District of Columbia,
1942-43; chairman, Senate Special Committee for Industrial Decentralization, {1943-46);
chairman, Senate Committee on the Judiciary, 1943-46 and 1949-53; author, first Urban
Redevelopment Act passed by Congress {1944); chairman, Conference of Western
Senators since 1944 {reelected annually); author, Reorganization Act of 1945; author,
Federal Airport Act, 1945; author, National Aircraft Theft Act, 1945; coauthor,
Administrative Procedure Act {1946); author, Federal Judiciary Salary Act {1946); author,
Silver Purchase Act of 1946; chairman, Joint Congressional Committee on Foreign
Economic Cooperation, 1946-50; chairman, Special Subcommittee on Foreign Economic
Cooperation, 1950-52; author, Internal Security Act {1951); chairman, Senate Internal
Security Subcommittee since its creation in 1951; chairman, Senate Appropriations
Subcommittee on Mutual Security, 1952; author, Immigration and Nationality Act {1952);
member American Bar Association and Nevada State Bar Association; member, bars of
Nevada, Arizona, California, Utah, and United States Supreme Court; member, honorary
society, Phi Kappa Phi; third ranking minority member, Senate Appropriations Committee;
member, Appropriations Subcommittee on Departments of State, Justice, Commerce, and
the Federal Judiciary; home, 401 Court Street, Reno, Nevada;
Commission, 1913-18; member, Nevada Board of Pardons, 1913-18; member, Nevada State
Board of Parole Commissioners, 1913-18; State chairman, Four-Minute Men, World War I;
president, Nevada State Bar Association, 1920-21; president Truckee River Water Users
Association, 1921-22; vice president, American Bar Association, 1922-23; chairman, Nevada
State Board of Bar Examiners, 1931-32; Member United States Senate since 1933; author,
first bill introduced in Congress for a separate Air Force (1933); opposed Court packing bill
(1937); author, Civil Aeronautics Act of 1938; coauthor, Civilian Pilot Training Act (1939);
author, Silver Purchase Act of 1939; author, National Cattle Theft Act, 1941; chairman,
Senate Committee on the District of Columbia, 1942-43; chairman, Senate Special
Committee for Industrial Decentralization, (1943-46); chairman, Senate Committee on the
Judiciary, 1943-46 and 1949-53; author, first Urban Redevelopment Act passed by Congress
(1944); chairman, Conference of Western Senators since 1944 (reelected annually); author,
Reorganization Act of 1945; author, Federal Airport Act, 1945; author, National Aircraft
Theft Act, 1945; coauthor, Administrative Procedure Act (1946); author, Federal Judiciary
Salary Act (1946); author, Silver Purchase Act of 1946; chairman, Joint Congressional
Committee on Foreign Economic Cooperation, 1946-50; chairman, Special Subcommittee on
Foreign Economic Cooperation, 1950-52; author, Internal Security Act (1951); chairman,
Senate Internal Security Subcommittee since its creation in 1951; chairman, Senate
Appropriations Subcommittee on Mutual Security, 1952; author, Immigration and Nationality
Act (1952); member American Bar Association and Nevada State Bar Association; member,
bars of Nevada, Arizona, California, Utah, and United States Supreme Court; member,
honorary society, Phi Kappa Phi; third ranking minority member, Senate Appropriations
Committee; member, Appropriations Subcommittee on Departments of State, Justice,
Commerce, and the Federal Judiciary; home, 401 Court Street, Reno, Nevada; Washington,
D.C., residence, 4711 Blagden Avenue; office: Senate Office Building, Washington, D.C.";
and
Street, Reno, Nevada; Washington, D.C., residence, 4711 Blagden Avenue; office: Senate
Office Building, Washington, D.C.; and
Whereas, The members of the Bench and Bar of the State of Nevada enjoyed a warm
association with the great man as his stature became internationally recognized and his
prestige as a leader of men grew, we share now as we did then in the unique pride of the
ascendancy of a friend, for in truth, his prestige has continued to grow even in death. His
great character which manifested itself throughout the world, was molded in our presence.
His great individualism, which even his enemies respected, was forged in the courts of our
own State of Nevada. His passing from public life has left a void in the component parts of
Government, in our State and in our nation; a void which is, and will continue to be, felt and
mourned by free nations on all continents.
Now, Therefore, It Is
Resolved, That it is not our purpose to mourn the loss of our brother; he would not
wish it so. However, it is our purpose to raise high his magnificent example for all to view, so
that we may in life be guided by it and approach our grave as he did, with an unfaltering
trust, when that time comes. Paraphrasing an old familiar song:
He is gone and we shall miss him,
Truly it may now be said,
Dirges from the pine and cedar
Mingle with the tears we shed.
The foregoing resolution was adopted by the Court, and ordered spread upon its
minutes and published in the next volume of the Nevada Reports.
____________

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