Nevada Reports 1885-1888 (19 Nev.) PDF

19 Nev.
11, 11 (1885)
RULES
of
The Board of Pardons.
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1. The regular meetings of the board shall be held on the second Monday of January
and July of each year.
2. Special meetings may be called by the governor at any time when the exigencies of
any case demand it, notice thereof being given to each member of the board.
3. No application for the remission of a fine or forfeiture, or for a commutation of
sentence or pardon, shall be considered by the board unless presented in the form and manner
required by the law of the state, approved February 20, 1875.
4. In every case where the applicant has been confined in the state prison, he or she
must procure a written certificate of his or her conduct during such confinement, from the
warden of said prison, and file the same with the secretary of this board, on or before the day
of hearing.
5. All oral testimony offered upon the hearing of any case must be presented under
oath, unless otherwise directed by a majority of the board.
6. Action by the board upon every case shall be in private, unless otherwise ordered
by the consent of all the members present.
7. After a case has been acted upon, and the relief asked for has been refused, it shall
not, within twelve months thereafter, be again taken up or considered upon any of the grounds
specified in the application under consideration, except by the consent of a majority of the
members of the board; nor in any case, except upon new and regular notice as required by law
in case of original application.
19 Nev. 11, 12 (1885) Rules of the Board of Pardons
8. In voting upon any application the roll of members shall be called by the secretary
of the board in the following order:
FirstThe Attorney General.
SecondThe Junior Associate Justice of the Supreme Court.
ThirdThe Senior Associate Justice.
FourthThe Chief Justice.
FifthThe Governor.
Each member, when his name is called, shall declare his vote for or against the
remission of the fine or forfeiture, commutation of sentence, pardon or restoration of
citizenship.
9. No document relating to a pending application for pardon or commutation of
sentence, or to a prior application which has been denied, shall be withdrawn from the
custody of the clerk after filing, unless by consent of the board.
10. Application for pardon or commutation of sentence must be filed with the clerk at
least two days before the regular meeting of the board, at which the application is to be
considered.
11. All papers pertaining to applications for pardon, or for restoration to citizenship,
must be properly endorsed before presentation for filing; and the name of the attorney for the
applicant must appear in such indorsement on the petition and notices to the District Judge
and District Attorney. The indorsement on each paper must begin at the top with Board of
Pardons, and include the name of the document.
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19 Nev. 13, 13 (1885) Rules of the Supreme Court
RULES
OF
THE SUPREME COURT
OF THE STATE OF NEVADA
____________
rule i.
1. Applicants for license to practice as attorneys and counselors will be examined in
open court on the first day of the term.
2. The supreme court, upon application of the district judge of any judicial district,
will appoint a committee to examine persons applying for admission to practice as attorneys
and counselors-at-law. Such committee will consist of the district judge and at least two
attorneys resident of the district.
The examination by the committee so appointed shall be conducted and certified
according to the following rules:
The applicant shall be examined by the district judge and at least two others of the
committee, and the questions and answers must be reduced to writing.
No intimation of the questions to be asked must be given to the applicant by any
member of the committee previous to the examination.
The examination shall embrace the following subjects:
1. The history of this state and of the United States;
2. The constitutional relations of the state and federal governments;
3. The jurisdiction of the various courts of this state and of the United States;
4. The various sources of our municipal law;
5. The general principles of the common law relating to property and personal rights
and obligations;
6. The general grounds of equity jurisdiction and principles of equity jurisprudence;
7. Rules and principles of pleadings and evidence;
8. Practice under the civil and criminal codes of Nevada;
9. Remedies in hypothetical cases;
10. The course and duration of the applicant's studies.
3. The examiners will not be expected to go very much at large into the details of
these subjects, but only sufficiently so fairly to test the extent of the applicant's knowledge
and the accuracy of his understanding of those subjects and books which he has studied.
4. When the examination is completed and reduced to writing, the examiners will
return it to this court, accompanied by their certificate showing whether or not the applicant is
of good moral character and has attained his majority, and is a bona fide resident of this state.
Such certificate shall also contain the facts that the applicant was examined in the presence of
the committee; that he had no knowledge or intimation of the nature of any of the questions to
be propounded to him before the same were asked by the committee, and that the answers to
each and all the questions were taken down as given by the applicant without reference to any
books or other outside aid.
5. The fee for license must in all cases be deposited with the clerk of the court before
the application is made, to be returned to the applicant in case of rejection.
rule ii.
In all cases where an appeal has been perfected, and the statement settled (if there be
one) thirty days before the commencement of a term, the transcript of the record shall be filed
on or before the first day of such term.
rule iii.
1. If the transcript of the record be not filed within the time prescribed by Rule II, the
appeal may be dismissed on motion during the first week of the term, without notice. A cause
so dismissed may be restored during the same term, upon good cause shown, on notice to the
opposite party; and unless so restored the dismissal shall be final, and a bar to any other
appeal from the same order or judgment.
2. On such motion there shall be presented the certificate of the clerk below, under
the seal of the court, certifying the amount or character of the judgment; the date of its
rendition; the fact and date of the filing of the notice of appeal, together with the fact and date
of service thereof on the adverse party, and the character of the evidence by which said
service appears; the fact and date of the filing of the undertaking on appeal; and that the same
is in due form; the fact and time of the settlement of the statement, if there be one; and also,
that the appellant has received a duly certified transcript, or that the has not requested the
clerk to certify to a correct transcript of the record; or, if he has made such request, that he has
not paid the fees therefor, if the same have been demanded.
rule iv.
1. All transcripts of record in civil cases shall be printed on unruled white paper, ten
inches long by seven inches wide, with a margin on the outer edge of not less than two inches
wide. The printed page, exclusive of any marginal note or reference, shall be seven inches
long and three and one-half inches wide. the folios embracing ten lines each, shall be
numbered from the commencement to the end, and the numbering of the folio shall be printed
on the left margin of the page. Small pica solid is the smallest letter, and most compact mode
of composition allowed.
2. Transcripts in criminal cases may be printed in like manner as prescribed for civil
cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches
long by ten and one-half inches in width, with a margin of not less than one and one-half
inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so
that the same may be secured, and every part conveniently read.
read. The transcript, if written, shall be in a fair, legible hand, and each paper or order shall be
separately inserted.
3. The pleadings, proceedings, and statement shall be chronologically arranged in the
transcript, and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness; and
the transcript shall have at least one blank fly-sheet cover.
4. No record which fails to conform to these rules shall be received or filed by the
clerk of the court.
rule v.
The written transcript in civil causes, together with sufficient funds to pay for the
printing of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt
thereof, shall file the same and cause the transcript to be printed, and to a printed copy shall
annex his certificate that the said printed transcript is a full and correct copy of the transcript
furnished to him by the party; and said certificate shall be prima facie evidence that the same
is correct. The said printed copy so certified shall also be filed, and constitute the record of
the cause in this court, subject to be corrected by reference to the written transcript on file.
rule vi.
The expense of printing transcripts on appeal in civil causes and pleadings, affidavits,
briefs, or other papers constituting the record in original proceedings upon which the case is
heard in this court, required by these rules to be printed, shall be allowed as costs, and taxed
in bills of costs in the usual mode.
rule vii.
For the purpose of correcting any error or defect in the transcript from the court
below, either party may suggest the same, in writing, to this court, and, upon good cause
shown, obtain an order that the proper clerk certify to the whole or part of the record, as may
be required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
rule viii.
Exceptions or objections to the transcript, statement, the undertaking on appeal, notice
of appeal, or to its service or proof of service, or any technical exception or objection to the
record affecting the right of the appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term after
the transcript is filed, and must be noted in the written or the printed points of the respondent,
and filed at least one day before the argument, or they will not be regarded.
rule ix.
Upon the death or other disability of a party pending an appeal, his representative
shall be substituted in the suit by suggestion in writing to the court on the part of such
representative, or any party on the record. Upon the entry of such suggestion, an order of
substitution shall be made and the cause shall proceed as in other cases.
rule x.
1. The calendar of each term shall consist only of those cases in which the transcript
shall have been filed on or before the first day of the term, unless by written consent of the
parties; provided, that all civil cases in which the appeal is perfected, and the statement
settled, as provided in Rule II, and the transcript has not been filed before the first day of the
term, may be placed on the calendar, on motion of the respondent, upon the filing the
transcript.
2. When the transcript in a criminal cause is filed, after the calendar is made up, the
cause may be placed thereon at any time, on motion of the defendant.
3. Causes shall be placed on the calendar in the order in which the transcripts are
filed with the clerk.
rule xi.
1. At least six days before the argument, the appellant shall furnish to the respondent
a printed copy of his points and authorities, and within two days thereafter the respondent
shall furnish to the appellant a written or printed copy of his points and authorities.
2. On or before the calling of the cause for argument each party shall file with the
clerk his printed points and authorities, together with a brief statement of such of the facts as
are necessary to explain the points made.
3. The oral argument may, in the discretion of the court, be limited to the printed
points and authorities filed, and a failure by either party to file points and authorities under
the provisions of the rule, shall be deemed a waiver by such party of the right to orally argue
the cause.
4. No more than two counsel on a side will be heard upon the oral argument, except
by special permission of the court, but each defendant who has appeared separately in the
court below, may be heard through his own counsel.
5. At the argument, the court may order printed briefs to be filed by counsel for the
respective parties within such time as may then be fixed.
6. In criminal cases it is left optional with counsel either to file written or printed
points and authorities or briefs.
rule xii.
In all cases where a paper or document is required by these rules to be printed, it shall
be printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
rule xiii.
Besides the original, there shall be filed ten copies of the transcript, briefs, and points
and authorities, which copies shall be distributed by the clerk.
rule xiv.
All opinions delivered by the court, after having been finally corrected, shall be
recorded by the clerk.
rule xv.
All motions for a rehearing shall be, upon petition in writing, and presented within
fifteen days after the final judgment is rendered, or order made by the court, and publication
of its opinion and decision, and no argument will be heard thereon. No remittitur or mandate
to the court below shall be issued until the expiration of the ten days herein provided, and
decisions upon the petition, except on special order.
rule xvi.
Where a judgment is reversed or modified, a certified copy of the opinion in the case
shall be transmitted, with the remittitur, to the court below.
rule xvii.
No paper shall be taken from the court room or clerk's office, except by order of the
court, or of one of the justices. No order will be made for leave to withdraw a transcript for
examination, except upon written consent to be filed with the clerk.
rule xviii.
No writ of error or certiorari shall be issued, except upon order of the court, upon
petition, showing a proper case for issuing the same.
rule xix.
Where a writ of error is issued, upon filing the same and a sufficient bond or
undertaking with the clerk of the court below, and upon giving notice thereof to the opposite
party or his attorney, and to the sheriff, it shall operate as a supersedeas. The bond or
undertaking shall be substantially the same as required in cases on appeal.
rule xx.
The writ of error shall be returnable within thirty days, unless otherwise specially
directed.
rule xxi.
The rules and practice of this court respecting appeals shall apply, so far as the same
may be applicable, to proceedings upon a writ of error.
rule xxii.
The writ shall not be allowed after the lapse of one year from the date of the
judgment, order, or decree which is sought to be reviewed, except under special
circumstances.
rule xxiii.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles of Carson. When the party served resides more than twenty miles from Carson, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson.
rule xxiv.
In all cases where notice of a motion is necessary, unless for good cause shown, the
time is shortened by an order of one of the justices, the notice shall be five days.
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19 Nev. 21, 21 (1885) Rules of the District Court
RULES
of the
District Court of the State of Nevada
____________
rule i.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise
ordered.
rule ii.
The clerk of each county of the state shall make three calendars for the district court
of his county, upon one of which he shall place all civil causes at issue upon questions of fact
as soon as the issue is made; upon another of which he shall place all civil causes at issue
upon a question of law, and all motions of every nature, except ex parte motions, as soon as
the issue is made, or as soon as notice of motion is filed; and upon the third of which he shall
place all criminal business of every kind. The names of the attorneys of the respective parties
shall be appropriately placed on such calendars. The clerk shall, on every Saturday, forward
to the presiding judge of the court, a full statement of the condition of the business of the
court as shown by the calendars.
rule iii.
The judge who is to hold court in any county shall give the clerk of such county notice
of the time when court will sit. The clerk shall, immediately upon receiving such notice, give
all the attorneys having business in said court, as shown by the calendar, and also all
attorneys practicing in his county, notice in writing of the time when court will be held.
all the attorneys having business in said court, as shown by the calendar, and also all attorneys
practicing in his county, notice in writing of the time when court will be held. He shall also
give notice of the time of holding court, in some newspaper printed and published at the
county seat of his county, provided it can be done without expense.
rule iv.
Upon the meeting of the court, as provided in Rule III, the law calendar will first be
called and disposed of. The trial calendar will then be called, and causes at issue upon
questions of fact disposed of. When the calendar is called the causes will be set for a time
certain. When the calendar is called the causes will be set for a time certain. Parties are
expected to be ready to try their causes, whether at issue upon questions of law or fact, when
the calendar is called, and in the order in which they are set. Parties may, prior to the meeting
of the court, fix the day of trial by stipulation in writing, subject to the approval of the court
or judge. The daily business of the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed
by the judge.
SecondEx parte motions.
ThirdProbate business, when there is no contest.
FourthIssues arising subsequent to the calling of the calendar shall be set.
FifthTrial of causes, as previously set.
SixthQuestions of law.
rule v.
On each Saturday of any session of court held by any district judge, law questions
shall take precedence, and be heard without previous setting or notice.
rule vi.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
rule vii.
Any issue of law, and any motion of any nature or kind, may be heard orally by
stipulation of the parties, at any time or place agreed on in the state, with the consent of
the judge first having jurisdiction of the cause, or such questions of law, or motions, as
the case may be, may be submitted on briefs to such judge, with his consent, and the
decision may be filed thereafter at any time, which decision shall fix the time when the
decision of the court is to be complied with; and in all such cases the party who is
required to act by such decision, shall receive due written notice thereof from the
opposite party.
may be heard orally by stipulation of the parties, at any time or place agreed on in the state,
with the consent of the judge first having jurisdiction of the cause, or such questions of law,
or motions, as the case may be, may be submitted on briefs to such judge, with his consent,
and the decision may be filed thereafter at any time, which decision shall fix the time when
the decision of the court is to be complied with; and in all such cases the party who is
required to act by such decision, shall receive due written notice thereof from the opposite
party. Time for complying with such decision shall commence to run from the time when
service is made in the manner required by the statutes for service of pleadings in a case;
provided, that when the parties are present by their respective attorneys when the decision is
rendered, no notice shall be required.
rule viii.
When a demurrer is interposed in any case, if it be made to appear to the satisfaction
of the court that such demurrer has not been interposed in good faith, but merely for delay,
the defendant shall only answer upon such terms as the court may prescribe, and upon the
filing of the answer, the case shall be set down for trial for as early a day as the business of
the court will permit. In cases other than those above mentioned, ten days shall be allowed to
amend or plead, as the case may be, unless the court by its order fix a different time.
rule ix.
All documents and pleadings, intended for the pleadings of this court, shall be on
paper known as legal cap, of good quality, and without interlineations, unless noted
thereon by the clerk at the time of filing. No original pleading or paper shall be amended by
making erasures or interlineations thereon, or by attaching slips thereto, except by leave of
court. Copies of all papers issued from this court, or to be used therein, which are required by
law, or rule of court to be served, shall be upon legal cap paper in a legible hand, and in
default of so doing, the party failing shall be compelled to renew the paper, or be precluded
from using the original, as the court may deem proper.
rule x.
Motions in all cases, except ex parte motions, motions for continuance, and motions
to amend pleadings pending a trial, shall be noticed at least five days before the day
specified for a hearing, and a copy of all papers to be used by the moving party, except
pleadings or other records of the court, shall be served with the notice of motion.
continuance, and motions to amend pleadings pending a trial, shall be noticed at least five
days before the day specified for a hearing, and a copy of all papers to be used by the moving
party, except pleadings or other records of the court, shall be served with the notice of
motion. The notice of motion shall be in writing, and shall specify the papers to be used and
the names of witnesses to be examined by the moving party, and the grounds upon which the
motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the
time for hearing. For a failure to comply with this rule the motion shall be denied.
rule xi.
Upon reading and filing the notice of motion, with due proof of service of the same,
and of the papers mentioned therein, if no one appears to oppose the motion, the moving
party shall be entitled to have the motion decided. Upon the hearing, the affidavits to be used
by either party shall be endorsed and filed before the affidavits shall be used. The manner of
making motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof,
or introduce his oral evidence.
SecondThe opposing party shall then read or state the contents of his opposing
papers, or introduce his oral evidence.
ThirdThe opposing party may then read his rebutting papers, or introduce oral
evidence, if admissible under the rules of practice in law or equity. The counsel for the
moving party shall make his argument, to be followed by the counsel of the opposing party,
and the counsel for the moving party may reply.
rule xii.
All motions for the continuance of causes shall be made of affidavit; and, when made
on the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding
place, if known.
SecondWhat diligence has been used to procure their attendance, or depositions,
and the causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each
of such absent witnesses, and whether or not the same facts can be proven by other
witnesses than parties to the suit, whose attendance or depositions might have been
obtained.
or not the same facts can be proven by other witnesses than parties to the suit, whose
attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of
such absent witnesses could not be obtained.
FifthThat the application is made in good faith, and not for delay merely. And no
continuance will be granted unless the affidavit upon which it is applied for conforms to this
rule, except where the continuance is applied for in a mining case, upon the special ground
provided by statute. A copy of the affidavits upon which a motion for a continuance is made,
shall be served upon the opposing party as soon as practicable after the cause for the
continuance shall be known to the moving party. Counter affidavits may be used in
opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
rule xiii.
If the attorney or counsel of either party offers himself as a witness on behalf of his
client, and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up
to the jury, without the permission of the court.
rule xiv.
No attorney will be received as surety on any bond or recognizance to be filed or
entered into in any action or proceeding in this court.
rule xv.
A party making application for a commission to take the deposition of a witness out of
the state, shall serve, with the notice of such application, a copy of the direct interrogatories;
and, at least one day before the hearing of the application, the adverse party shall serve upon
the moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall
be settled at the time of hearing the application, unless the court or judge otherwise direct;
provided, the parties may agree to the interrogatories without submission to the court or
judge, or may stipulate that the depositions may be taken without written interrogatories.
judge, or may stipulate that the depositions may be taken without written interrogatories.
rule xvi.
When a deposition is received by the clerk, he shall endorse upon the envelope the
time of receiving it, and immediately file it with the papers of the case in which it was taken;
and at any time afterward, upon the application of any attorney in the case, he shall open the
same, and endorse upon the envelope the time of opening, and the name of the attorney upon
whose application it was opened, and shall then file the deposition.
rule xvii.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
rule xviii.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
rule xix.
No paper or record belonging to the files of the court shall be taken from the office
and custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
rule xx.
If the undertaking required before issuing a writ of attachment is shown to the
satisfaction of the court or judge, upon proper notice, to be insufficient to secure the party
whose property is attached, against damages, the court or judge may require an
additional undertaking to be filed, and if not filed, the attachment shall be dissolved.
property is attached, against damages, the court or judge may require an additional
undertaking to be filed, and if not filed, the attachment shall be dissolved. No attachment
shall be dissolved by reason of any defect in the attachment papers that can be amended
without affecting the substantial rights of the parties.
rule xxi.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
rule xxii.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it
shall stay all further proceedings in the court below, upon the judgment or order appealed
from, or upon the matter embraced therein; and if an execution or other order shall have been
issued to the sheriff, coroner, or elizor, he shall return the same, with the cause therefor, and
his proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate,
under the seal of the court, of the perfecting of the appeal. The certificate shall state the title
of the action, the filing and service of the notice of appeal and the date of such filing and
service, together with the filing and approval of the undertaking staying all proceedings, and
the date of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
rule xxiii.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and report whether the
mortgaged premises can be sold in parcels, if the whole amount secured by the mortgage
has not become due.
whether the mortgaged premises can be sold in parcels, if the whole amount secured by the
mortgage has not become due. If any of the defendants have been served by publication, the
order of reference shall also direct the referee to take proof of the facts and circumstances
stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any payments
which have been made, and to compute the amount due on the mortgage, preparatory to the
application for decree of foreclosure.
rule xxiv.
When an order shall be made enlarging the time to file a statement or affidavits on
motion for new trial, the adverse party shall have the same number of days to propose
amendments or file counter affidavits as was allowed by such order to file such statement or
affidavits.
rules xxv.
When an motion for a new trial is made in a cause tried before a referee, the statement
shall be settled by the referee.
rule xxvi.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elizor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings. The certificate shall state the title of the action, the order staying the execution
or other proceedings, and the date of such order, together with the filing and approval of
the undertaking above required, and the date of such filing and approval;
the order staying the execution or other proceedings, and the date of such order, together with
the filing and approval of the undertaking above required, and the date of such filing and
approval; and such certificate shall operate as a supersedeas of the execution or a vacation of
the order.
rule xxvii.
No agreement or stipulation between the parties in a cause, or their attorneys, in
respect to the proceedings therein, will be regarded, unless the same shall be entered in the
minutes in the form of an order, by consent, or unless the same shall be in writing, subscribed
by the party against whom the same shall be alleged, or by his attorney or counsel.
rule xxviii
No juror shall be excused except in open court; and when a juror is excused, the clerk
shall immediately withdraw his name from the jury box for the period for which he has been
excused.
rule xxix.
No person shall be appointed guardian ad litem, either upon the application of the
infant or otherwise, unless he be the general guardian of the infant, or an attorney or other
officer of this court, or is fully competent to understand and protect the rights of the infant;
has no interest adverse to that of the infant, and is not connected in business with the attorney
or counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to
the infant for any damage which may be sustained for his negligence or misconduct in
defense of the suit.
rule xxx.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
rule xxxi.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or
money, with two sureties, who shall justify as in other cases, approved by the judge and
filed by the clerk, conditioned for the faithful discharge of his trust.
proceeds of sale of real estate, until he has given security by bond, in double the amount of
such property or money, with two sureties, who shall justify as in other cases, approved by the
judge and filed by the clerk, conditioned for the faithful discharge of his trust.
rule xxxii.
The counsel obtaining any order, judgment or decree, shall furnish the form of the
same to the clerk.
rule xxxiii.
The sheriff shall file with the clerk the affidavit and order on which any arrest is
made, within five days after such arrest is made.
rule xxxiv.
The party against whom judgment is entered shall have two days after service of a
copy of the cost bill in which to move to retax costs.
rule xxxv.
In actions to enforce mechanics' liens, other lienholders coming in under the notice
published by the plaintiff, shall do so by filing with the clerk and serving on the plaintiff, and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to answer
such statements.
rule xxxvi.
No motion once heard and disposed of shall be renewed in the same cause, nor shall
the same matters therein embraced be reheard, unless by leave of the court granted upon
motion therefor, after notice of such motion to the adverse parties.
rule xxxvii.
When an appeal from the justices' court to this court has been perfected, and the
papers are not filed in this court within fifteen days from the day of filing the undertaking on
appeal, this court, on the production of a certificate from the justice to the effect that an
appeal has been taken and perfected, but the papers have not been ordered up, or the
proper costs not paid, or upon showing that any other necessary steps have not been
taken, shall dismiss the appeal at the cost of the appellant.
justice to the effect that an appeal has been taken and perfected, but the papers have not been
ordered up, or the proper costs not paid, or upon showing that any other necessary steps have
not been taken, shall dismiss the appeal at the cost of the appellant.
rule xxxviii.
The plaintiff shall cause the papers in a case certified to this court under the
provisions of the 539th section of the Practice Act, to be filed in the office of the clerk of this
court within fifteen days from the day upon which the order of the justice is made directing
the transfer of the case. If the papers are not so filed the case shall be dismissed, upon filing a
certificate from the justice to the effect that he has certified the papers as required by said
section, but that the same have not been ordered up, or the proper costs paid; or if it shall
appear that such papers are not filed in this court by reason of the neglect of the plaintiff to
pay the fees of the clerk for filing the same.
rule xxxix.
During the time the court remains in session it shall be the duty of the sheriff in
attendance to prevent all persons from coming within the bar, except officers of the court,
attorneys and parties to, or jurors or witnesses in, the cause or matter being tried or heard. The
sheriff shall also keep the passage way to the bar clear for ingress or egress.
rule xxxx.
Before the argument begins, counsel shall prepare their instructions, submit them to
the inspection of the opposite party, and then deliver them to the court. The court will hear
objections to instructions, and will, when practicable, settle the instructions in advance of the
argument, and permit counsel to use them when addressing the jury.
rule xxxxi.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing of
said cause, proceeding, demurrer or motion.
judge who shall have first entered upon the trial or hearing of said cause, proceeding,
demurrer or motion.
rule xxxxii.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
rule xxxxiii.
No judge, except the judge having charge of the cause or proceeding, shall grant
further time to plead, move, or do any act or thing required to be done in any cause or
proceeding, unless it be shown by affidavit that such judge is absent from the state, or from
some other cause is unable to act.
rule xxxxiv.
When a cause shall have been certified by the State Land Register to the district court
for trial, it shall be the duty of the first applicant, within thirty days after receiving notice of
such certification, to file and serve upon the adverse party a complaint setting forth the facts
upon which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
rule xxxxv.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
To the Honorable Judges of the District Court of the State of Nevada:
Your Committee appointed to prepare Rules of Court, submit for your approval and
adoption the foregoing rules, forty-five in number.
TRENMOR COFFIN,
ROBT. M. CLARKE,
R. H. LINDSAY,
W. E. F. DEAL,
H. F. BARTINE,
Committee.
attest: James D. Torreyson, Secretary.
____________
It is hereby ordered that the foregoing rules, forty-five in number, be and they are
hereby adopted as the Rules of Practice of the District Court of the State of Nevada, and that
they be in force in each county thirty days after the date of their filing in the clerk's office of
such counties.
RICHARD RISING,
Presiding District
Judge.
R. R. BIGELOW,
A. L. FITZGERALD,
District Judges.
____________
State of Nevada, ss.I, Chas. F. Bicknell, Clerk of the Supreme Court of said State of
Nevada, do hereby certify that the foregoing rules were made and adopted by the Supreme
Court of the State of Nevada for the government of the District Court of the State of Nevada,
on the fourth day of April, A. D. 1887, and ordered to be published in pamphlet form by the
Superintendent of State Printing.
In testimony whereof, I have hereunto set my hand and the seal of said Supreme Court
this fourth day of April, A. D. 1887.
[Seal.] CHAS. F. BICKNELL, Clerk.
____________
19 Nev. 34, 34 (1885)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
JANUARY TERM, 1885.
____________
19 Nev. 34, 34 (1885) White Pine County v. Herrick
[No. 1191.]
THE COUNTY OF WHITE PINE, Appellant, v. H. S. HERRICK,
et al., Respondents.
PleadingsCounty Treasurer's BondConditions Precedent.In an action brought by a county against the
sureties on an official bond of the county treasurer, to recover an amount of money for which the
treasurer was in default, it is not necessary, in order to entitle the county to recover, that the complaint
should specifically aver a performance of the several acts required to be performed by the county
commissioners; but an averment that the county commissioners complied with all the requirements and
conditions of said bond, and the requirements of all acts of the legislature pertaining to the official bonds
of the county officers is sufficient. (Civil Pr. Act, Sec. 60.)
Appeal from the District Court of the Sixth Judicial District, White Pine County.
The facts are stated in the opinion.
Lansing & Mitchell, for Appellant:
I. The complaint contains a statement of the facts constituting the cause of action in
ordinary and concise language, and is in all respects sufficient. (1 Comp. L. 39; 2 Comp. L.
2917, 2921, 2980; Mendocino Co. v. Morris, 32 Cal. 145.)
II. The specifications or particular reasons named in the first ground of demurrer are not
conditions precedent; neither would they constitute matters of defense. (Tuolumne
Redemption Co. v. Sedgwick, 15 Cal. 515; Smith v. Morse, 2 Cal. 548, 564; Blanchard v.
Russell, 13 Mass. 16; King v. Dedham Bk., 15 Mass. 446; Smith's Com., Sec. 759; Thorne v.
San Francisco, 4 Cal. 127.)
Baker & Wines, for Respondents:
I. The amended complaint does not state facts sufficient to constitute a cause of action
against respondents. The complaint should have alleged every fact which, if denied, appellant
would be required to establish. (Jerome v. Stebbins, 14 Cal. 457; Green v. Palmer, 15 Cal.
413; Maynard v. F. F. Ins. Co., 34 Cal. 48.)
II. The act of the legislature of the State of Nevada entitled, An act for the relief of
sureties on official bonds, approved February 28, 1881, is strictly within the authority of the
law-making power of the state, and is constitutional. It simply imposed an additional duty
upon boards of county commissioners. It operated in presenti, and imposed as a penalty for
the failure to perform such additional duty, that no action could be maintained upon the
official bonds mentioned in the act. The act did not take away or abrogate the right to
maintain a suit upon the bond. (Walter v. Bacon, 8 Mass, 468; Cooley Con. Lim. 87, 172,
173, 174, 286, 287, 288, 289; Wolfkiel v. Mason, 16 Abb. Pr. 221; Stocking v. Hunt, 3 Denio,
274; Pierce v. Mills, 21 Ind. 27; Whitney v. Blanchard, 2 Gray, 208; Maryland v. B. & O. R.
R., 3 How. 534; Sedg. on Con. L. 618, 625, 633, 634, 658; King v. Nichols, 16 Ohio St. 80;
Dawson v. State, 38 Ohio St. 1; State v. Hendrickson, 15 Md. 205.)
By the Court, Belknap, C. J.:
This action was brought against the sureties upon the official bond of George P.
McConkey, as county treasurer of White Pine county, to recover a sum of money for which
he was in default. Defendants demurred to the complaint upon the ground that it did not state
facts sufficient to constitute a cause of action, and under this head assigned the failure of the
plaintiff to set forth a performance of the duties enjoined upon the county commissioners by
the act of the legislature approved February 20, 1881, entitled An act for the relief of sureties
on official bonds. (Stat. 1881, 91.) This act requires the boards of county commissioners to
keep each official bond given by an officer of their county, with at least two good and
sufficient sureties for its whole penal sum; to require a monthly report of receipts and
disbursements from each financial officer of their county; to view the public moneys in the
custody of the county treasurer at least once in each year; and to make complete annual
settlements with such officer in the month of September of each year. If the county
commissioners fail in the performance of any of these duties, the law releases and discharges
the sureties upon the official bond of the officer from liability, in so far as the county in which
he held office is concerned. It is argued that these provisions of the law are conditions
precedent, and that the complaint must show that they have been performed. The complaint
does not specifically aver a performance of the several acts required to be performed by the
county commissioners, but alleges that the county commissioners of said county of White
Pine complied with all the requirements and conditions imposed upon said commissioners by
the terms of said bond, and the requirements of all acts of the legislature of the state of
Nevada pertaining to the duty of county commissioners, relating to county officers and to the
official bonds of county officers; * * * and then proceeds to state certain matters for the
purpose of excusing the annual September settlement, not questioned upon this appeal.
Section 60 of the civil practice act furnishes an easy mode for pleading the performance
of conditions precedent in a contract.
pleading the performance of conditions precedent in a contract. It provides: In pleading the
performance of conditions precedent in a contract, it shall not be necessary to state the facts
showing such performance, but it may be stated generally that the party duly performed all the
conditions on his part. * * *
The pleader has not employed the precise language of section 60, but he has used language
equivalent to it, and a substantial compliance with the section is all that is necessary.
Respondent contends that this case is not within the provisions of the practice act, and that
appellant should have alleged in detail a performance of the various duties required of the
county commissioners by the act of 1881, and refers to decisions as supporting this view. In
the cases to which we have been referred (People v. Jackson, 24 Cal. 630; Himmelman v.
Danos, 35 Cal. 441; and Dye v. Dye, 11 Cal. 163), the right of action depended upon a
statute, and it was essential to the statement of a cause of action that the facts bringing the
case within the statute should be averred. But the present action is brought upon a contract
between the defendants and the state. The contract has been changed by the state through its
legislature consenting that, in so far as counties are concerned, no recovery shall be had upon
undertakings of the nature of the one sued upon, unless certain acts be performed by the
county through its county commissioners. These new conditions are ingrafted upon the
undertaking, and if they are conditions precedent they are well pleaded.
It is not necessary upon this appeal to determine whether the provisions of the law of 1881
are conditions precedent, or whether the statute is applicable to undertakings made before its
passage. These questions were made by demurrer to the original complaint; but the plaintiff,
instead of adhering to his pleading, amended it so as to obviate them, and leave them out of
the case. We are of opinion that the amended complaint states a good cause of action.
Judgment reversed and cause remanded.
____________
19 Nev. 38, 38 (1885) Comaita v. Kyle
[No. 1193.]
JOHN COMAITA, Respondent, v. MATTHEW KYLE,
Appellant.
Sale and Delivery of Personal Property.In the sale of a wood and coal ranch with the wood chopped, and coal
burned, thereon, where there are no words or acts of delivery, and no possession taken of the personal
property except the receipt of a bill of sale: Held, that a delivery of the bill of sale was not even a
symbolical delivery of the personal property described therein.
IdemDischarge of WorkmenDeclarations of Vendor.The vendor's discharge of his workmen and
departure from the ranch, coupled with the declaration that he left the vendee in possession of everything,
was not sufficient to constitute a delivery of the wood and coal.
IdemFraud Against Creditors.Every sale by a vendor of personal property in his possession, or under his
control, unless the same is accompanied by an immediate delivery and continued change of possession is,
under the statutes of this state, conclusive evidence of fraud as against the creditors of the vendor.
IdemConstructive Possession of Ranch.The bill of sale did not convey the vendor's title to the ranch, and, as
there was no proof that the ranch was inclosed, or had any established boundaries, the vendee did not
have any constructive possession of any portion thereof.
IdemWhen Nonsuit Should be Granted.Upon a review of all the facts: Held, that the vendee had neither
actual nor constructive possession of any part of the ranch (except a cabin thereon), or of the wood and
coal, and that the motion for a nonsuit should have been granted.
Appeal from the District Court of the Sixth Judicial District, Eureka County.
H. K. Mitchell, for Appellant:
Baker & Wines, for Respondent:
By the Court, Leonard, J:
This is an action to recover damages for the alleged conversion of personal property,
to-wit, about 15,000 bushels of charcoal and 450 cords of wood. The following
uncontradicted facts were proven by plaintiff: On the fifteenth of November, 1882, one
Locatelli was indebted to plaintiff in the sum of $2,120. On the evening of said day,
defendant, the sheriff of Eureka county, came to plaintiff's house and stopped all night.
Eureka county, came to plaintiff's house and stopped all night. After making several inquiries,
plaintiff concluded that defendant was on his way to Locatelli's ranch for the purpose of
attaching the latter's property. Plaintiff waited until defendant had retired for the night, when
he started for Locatelli's ranch. He arrived there about 7 o'clock in the morning. He took with
him a man by the name of Allison, to assist him in settling with Locatelli. Plaintiff informed
Locatelli that the sheriff was then on his way to attach him, and proposed to pay him $100 in
coin, and satisfy his indebtedness for work done in burning coal and cutting wood, and cancel
Locatelli's indebtedness to plaintiff, if Locatelli would sell him the ranch and the wood, and
coal thereon. Locatelli accepted the proposition, and thereupon he executed to plaintiff the
following instrument in writing:
$2,120. Antelope Valley, November 16, 1882.
This is to certify that for and in consideration of the sum of two thousand and one
hundred and twenty dollars, the receipt whereof is hereby acknowledged, I have this day sold,
and do by these presents sell and deliver, to John Comaita a certain wood and coal ranch on
which I now reside, situate west of Antelope Valley, and immediately west of Antelope
Valley, and immediately west of the old Lamaroux ranch, together with the wood chopped,
and piled or pitted, and all the coal burned, with two horses and one wagon, to have and to
hold the same for himself and his heirs forever.
Witness: Giacomo Locatelli.
I. J. Wilson,
Joel Allison.
After executing the above instrument, Locatelli and plaintiff were informed that the former
must discharge his hired men, go away from the ranch, and leave plaintiff in charge and
possession of everything. This was done. Locatelli remained away about ten days. Before or
after the execution and delivery of the certificate or bill of sale, Locatelli did nothing relating
to the wood or coal other than as above stated. There were no words or acts of delivery of
either wood or coal. Plaintiff did nothing to take possession of either, except to receive the
bill of sale. The coal was in six or seven piles, some distance from each other and from the
cabin where the bill of sale was executed and delivered to plaintiff.
tance from each other and from the cabin where the bill of sale was executed and delivered to
plaintiff. Plaintiff did not go to the stacks of coal or piles of wood, and had never before that
morning been on the ranch or seen the property. Nearly all the wood and coal were in the
canon near the cabin, and nearly all in plain sight of the cabin. In about an hour after the
purchase had been made, and Locatelli had left the cabin and ranch, defendant arrived, and
levied his writ of attachment upon the ranch, wood, coal, etc., in question, in the case of
Tognini v. Locatelli. At that time plaintiff had done nothing in relation to the property, except
to receive the bill of sale. Before the levy, plaintiff showed defendant the bill of sale as the
source of his claim and title, and notified him that he had bought all the property described
therein from Locatelli, and had paid for it. Immediately after the levy, plaintiff left the ranch,
and has never returned. Plaintiff introduced no proof as to the extent of the ranch, or that it
was inclosed. The bill of sale was executed and delivered to plaintiff in the cabin which
belonged to Locatelli, and which was occupied by him and his men when working on the
ranch. It is not disclosed whether or not the land is a portion of the public domain.
Upon the above fact shown by plaintiff, defendant moved for a nonsuit upon the following
grounds:
First. That the uncontroverted case made by plaintiff constituted a fraud in law.
Second. That from the testimony it appears that plaintiff claims the personal property
described in the complaint by virtue of a pretended purchase of real property upon which the
personality is situated, and that the instrument in writing under which he claims the real
property is insufficient to convey any right or possession to the real property, and is void.
Third. That there is not any evidence that the ranch was inclosed by any actual inclosure,
or anything equivalent thereto, to show the extent of plaintiff's dominion or control of the
same, as claimed by him, or otherwise.
Fourth. That the testimony shows that plaintiff relies upon a constructive possession of
the land where the coal was pitted and the wood piled to make out his possession of the
personal property, in which case he can only recover by the introduction, as evidence, of such
a deed as will vest in him a legal seizin and possession, and that the written instrument
introduced did not convey, and does not convey, to him any right of possession; the same
being in law a simple parol conveyance of land, and insufficient to convey personal
property thereon as against creditors.
introduced did not convey, and does not convey, to him any right of possession; the same
being in law a simple parol conveyance of land, and insufficient to convey personal property
thereon as against creditors.
Fifth. That plaintiff has not shown any delivery of the personal property, or any change of
the possession thereof.
Did the court err in denying defendant's motion? Was there sufficient proof of delivery and
change of possession of the wood and coal to entitle plaintiff to the finding of a jury upon
those questions? There were no words or acts of delivery of the personal property, and
plaintiff did not do anything to take possession of the wood and coal, except to receive the
bill of sale. A delivery of the bill of sale was not even a symbolical delivery of the personal
property described therein. (Carter v. Willard, 19 Pick. 12; Dempsey v. Gardner, 127 Mass.
382.) Certainly, Locatelli's discharge of his workmen did not constitute a delivery or change
of possession of the wood and coal; nor did Locatelli's departure have that effect, although
coupled with the general declaration that he left plaintiff in possession of everything.
Undoubtedly, plaintiff might have taken possession of the personal property in some proper
manner before the levy, and, had he done so, there would have been a complete delivery and
change of possession, as was held by this court in Gaudette v. Travis, 11 Nev. 157. But the
mere departure of the vendor, together with the execution and delivery of the bill of sale, did
not have that effect. Those acts would not have constituted a sufficient delivery and change of
possession if Locatelli had sold the personal property only. In that case, considering the
character of the property, plaintiff would not have been obliged to remove it, but it could have
been delivered, and the pits of coal and piles of wood could have been marked in plaintiff's
name. Indeed, counsel for respondent do not claim that prior to the levy there was a sufficient
delivery and change of possession of the wood and coal, independently of the sale, surrender
and taking possession, of the ranch. It is said, however, that as between the vendee of
personal property and an attaching creditor of the vendor, the former has a reasonable time in
which to take possession, and that whether plaintiff had such reasonable time, prior to the
attachment, was a question for the jury to decide.
The statute declares that every sale made by a vendor of goods and chattels in his
possession or under his control, unless the same be accompanied by an immediate delivery
and continued change of possession of things sold, shall be conclusive evidence of fraud as
against the creditors of the vendor. In Clute v. Steele, 6 Nev. 335, this court decided that the
statute is satisfied if there is a delivery at any time before the rights of creditors accrue, by
attachment or otherwise. Undoubtedly, the acts that constitute a delivery and change of
possession vary in different cases, and depend upon the character and quantity of the property
sold. But in every case, when property is in the vendor's possession or under his control, as
against his creditors, there must be a valid delivery before the write of attachment is levied. In
this case there was no conflict of evidence. It all showed that there was no delivery or change
of possession of the wood or coal, independently of the sale, surrender, and taking possession,
of the ranch. It was, therefore, the duty of the court to grant a nonsuit, unless plaintiff's
purchase and possession of the ranch constituted a sufficient possession of the property in
dispute.
It is conceded that the bill of sale did not convey Locatelli's title to the ranch. There was no
proof that the ranch was inclosed, or had any established boundaries. Plaintiff, then, did not
have constructive possession of any portion thereof. (Cannon v. Union Lumber Co., 38 Cal.
674; Wolfskill v. Malajowich, 39 Cal. 281; Eureka M. Co. v. Way, 11 Nev. 182.) He had
actual possession of the cabin only. Since there was no delivery of the wood and coal, actual
or symbolical, should we assume that the legal title to the ranch was in Locatelli, nothing less
than a conveyance by deed of the real estate, with surrender of possession thereof to plaintiff,
would have given the latter possession of the personal property thereon. (Sharon v. Shaw, 2
Nev. 292; Stephenson v. Clark, 20 Vt. 627; Shumway v. Rutter, 8 Pick. 443.) Plaintiff had
neither actual nor constructive possession of any part of the ranch outside of the cabin, or of
the wood and coal thereon, at the time of the levy, and the motion for nonsuit should have
been granted.
In view of the conclusions reached, we deem it unnecessary to point out the errors
contained in plaintiff's first and second instructions.
The judgment and order appealed from are reversed, and the cause is remanded.
____________
19 Nev. 43, 43 (1885) State v. Boyd
[No. 1206.]
THE STATE OF NEVADA, ex rel. ATTORNEY GENERAL,
Relator, v. D. B. BOYD, Respondent.
Classification of CountiesUnconstitutional ProvisionsStatute 1883, 73.The act fixing the salaries of
county officers in certain counties (Stat. 1883, 73), is illusory, because some of its provisions are
applicable only to Washoe county and others only to Esmeralda county, and the basis of the classification
as made in section 10 is unconstitutional, because in its practical operation it is applicable only to two
counties and can never affect any other county.
IdemUniformity of County Governments.In order to observe the uniformity required by article 4, sec. 25
of the constitution, the classification of counties must be based upon reasonable and actual
differences; the legislation must be appropriate to the classification, and embrace all within the class.
IdemOperation of the Law.The requirement that the system of county government shall be uniform, is not
considered to impart universality to the operation of the law.
Quo Warranto to determine respondent's right to hold the office of county assessor of
Washoe county under the provisions of the act making the county treasurer of Washoe county
ex officio the assessor. (Stat. 1883, 73.)
Clarke & King, for Relator:
J. F. Alexander, for Respondent:
Under the statute approved March 1, 1883, entitled An act fixing the salaries of county
officers in certain counties in this state, and other matters relating thereto, (Stat. 1883, 73,)
the county treasurer of Washoe county is made ex officio the assessor of the county. The
question presented for consideration is whether this provision is not unconstitutional.
It is claimed by relator that the provision is a violation of article 4, sec. 25, of the
constitution, which provides that the legislature shall establish a system of county and
township government, which shall be uniform throughout the state. If this requirement can
be expressed more significantly in its application to this case, it means that the legislature
shall establish a uniform plan or method for the government of all the counties of the state.
19 Nev. 43, 44 (1885) State v. Boyd
the counties of the state. It is a matter of general knowledge that legislatures are disposed to
adopt, without particular scrutiny, measures proposed by the representatives of a particular
locality, affecting it only, and not the state at large. The object of the provision was to prevent
this character of legislation in relation to county government. Any change in the general
system of county government may affect every county in the state. Among the advantages
attained by this requirement is that legislation upon this subject will receive the careful
attention of the members of the legislature in general, all proposed alterations will be
scrutinized, and frequent and disturbing changes avoided.
In obedience to the requirements of the constitution, the legislature of 1886, in dealing
with the general subject of county government, provided, among other things, for the election
of a county assessor and a county treasurer for each county in the state. This legislation
remains in effect in each county, unless the act of 1883, exempting Washoe county from its
operation, and consolidating these offices in the county, can be upheld. It is too clear for
argument or controversy that a legislative act, arbitrarily establishing this plain difference in
the government of Washoe county from that of the other counties of the state, violates the
system of uniformity contemplated by the constitution. No elaboration of the proposition can
make it plainer than the simple statement of the facts. The draughtsman of the statute, in
apparent anticipation of its conflict with the constitution, inserted a clause which may have
been intended to give it the appearance of a general law. It is as follows:
Sec. 10. This act shall apply to all counties in this state in which there were cast more
than eleven hundred and fifty votes, and less than thirteen hundred and fifty votes, at the
general election held in eighteen hundred and eighty-two, in this state.
Washoe and Esmeralda counties each cast about 1250 votes at the election of 1882, and
they are the only counties in the state falling within the classification attempted to be made. It
is apparent from an inspection of the statute that even this classification is illusory, because
some of the provisions of the act are expressly applicable only to Washoe county and others
only to Esmeralda county. The statute does not, therefore, apply uniformly, even within the
limited classification named. But the basis of classification cannot be sustained.
19 Nev. 43, 45 (1885) State v. Boyd
the basis of classification cannot be sustained. Abstractly considered, the language of the
section appears to contemplate a class of counties, but in its practical operation the law is
applicable to Washoe and Esmeralda counties only, and can never affect any other county.
The legislature could, with equal right, designate these counties by name, as by the total vote
cast at a past election.
A statute somewhat similar in form and purpose was adopted by the legislature of
Pennsylvania in the year 1878. It was intended to apply to Crawford county alone, but in
order to evade the provisions of the constitution it was made applicable to all counties of
more than 60,000 inhabitants, in which there shall be any city, incorporated at the time of the
passage of this act, with a population exceeding eight thousand inhabitants, situated at a
distance from the county seat of more than twenty-seven miles, by the usually traveled public
road. The court held the classification improper, and said: This is classification run mad.
Why not say all counties named Crawford, with a population exceeding sixty thousand, that
contain a city named Titusville, with a population of over eight thousand, and situated
twenty-seven miles from the county seat? or, all counties with a population of over sixty
thousand, watered by a certain river, or bounded by a certain mountain? (Com. v. Patton, 88
Pa. St. 260.)
In the case of Zeigler v. Gaddis the supreme court of New Jersey had occasion to discuss
this subject. The case involved the validity of a law giving the court of common pleas power
to grant licenses to keep inns and taverns in all incorporated cities having a population not
less than four thousand, and not exceeding a population of six thousand, and in towns having
a population less than one thousand, in counties of this state, such counties having a
population of not less than thirty-seven thousand, and not exceeding forty thousand, by the
census of 1875. The court said: The uniformity that is thus sought (by the constitution) can
only be broken by classification of those bodies (political divisions of the state) that are
founded on substantial differences, such as are not illusory or fraudulent in their character.
(44 N. J. L. 365.) It is said in Richards v. Hammer, 42 N. J. L. 440, that the marks of
distinction on which the classification is founded must be such in the nature of things as will,
in some reasonable degree at least, account for and justify the restriction of the legislation.'
In brief, there must be a true, substantial classification, and not a hidden specification.
19 Nev. 43, 46 (1885) State v. Boyd
for and justify the restriction of the legislation.' In brief, there must be a true, substantial
classification, and not a hidden specification. As, in the case last cited, the descriptive words,
in any city of this state where a board of assessment and revision of taxes now exists,' etc.,
were found to be only applicable to the cities of Elizabeth and Newark, so in this case the
populations given in the act of 1879, on comparison with the census, limit the description to
the counties of Warren and Hunterdon; and to the city of Lambertville, and the towns of
Frenchtown and Clinton, all in the county of Hunterdon. The circumlocution and ostensible
classification set forth in the act is, therefore, demonstrated to be aimed at these three small
municipalities in the whole state. There is no suggestion of a distinction which will, in any
reasonable degree, account for and justify this restriction of legislation to these three
localities, and the attempt to do, by indirection, what it is apparent could not be done by a
direct and specific description of the purpose of the act, must fail * *. (See also Pavonia H.
H. R. v. Jersey City, 45 N. J. L. 298; Rutgers v. New Brunswick, 42 N. J. L. 51; Anderson v.
Trenton, Id. 486; Coutieri v. New Brunswick, 44 N. J. L. 58; McConihe v. McMurray, 17 Fla.
269; State v. Stark, 18 Fla. 255; Lake v. Palmer, Id. 501.)
In order to observe the uniformity required by the constitution, classification, if made,
must be based upon reasonable and actual differences; the legislation must be appropriate to
the classification, and embrace all within the class. We are of opinion that if a set of counties
be fairly classified in conformity with the views herein expressed, a law embracing them all
would be unobjectionable as to uniformity. The requirement that the system of county
government shall be uniform, is not considered to import universality in the operation of the
law. Such construction would defeat much useful legislation.
The respondent claiming to hold the office of assessor by virtue of an unconstitutional
provision, it is ordered that a judgment of ouster be entered against him, with costs.
____________
19 Nev. 47, 47 (1885) State v. Lindsey
[No. 1192.]
THE STATE OF NEVADA, Respondent, v. LIZZIE
LINDSEY, Appellant.
Murder by PoisonJury Must Fix the Degree.Where a defendant is convicted of the crime of murder, alleged
to have been committed by the administering of poison, the jury may find the defendant guilty of murder in
the second degree for the reason that the statute leaves the question of degree to be settled by the jury.
IdemError in Favor of Appellant.If the jury fix the crime at murder in the second degree, in a case where
the law and the facts make it murder in the first degree, it is an error in favor of the prisoner, of which the
law will not take any cognizance, and of which the prisoner ought not to complain.
InstructionsNegligence of DefendantPoison Taken by MistakeDefendant Liable for the
Consequences.Instructions to the effect that in the event of the defendant's preparing poison with suicidal
intent and the deceased person having drank the same by mistake that the defendant would be liable for
the consequences, in the same connection stating correctly what the consequences would be, are not
erroneous or misleading.
IdemInstructions Must be Considered as an Entirety.Held, that the instructions must be considered together
as an entirety and that when so considered they state a correct principle of law.
Appeal from the District Court of the Second Judicial District, Ormsby County.
The instructions referred to in the opinion read as follows: The jury are instructed that if a
person exposes or places poison in such a position that it is likely to be unconsciously or non
negligently taken by another person, either as food or drink, he or she, is liable for the
consequences. And you are further instructed that if a person in attempting to commit suicide,
unlawfully kills another, such person is guilty of manslaughter. If you believe from the
evidence in this case, beyond all reasonable doubt, that the defendant, Lizzie Lindsey, on the
2d day of December, A. D. 1883, purchased a poisonous substance, to-wit: strychnine, with
intent to take her own life; that she took it to the house where she and deceased were residing;
that she put the strychnine so purchased by her into a glass of whisky; that she left said glass
containing said strychnine and whisky upon a table in deceased's room which deceased
occupied, and had the right to occupy, and in such exposed situation that it was likely to
attract, and did attract, deceased's attention, and if you further believe from the evidence
beyond all reasonable doubt that the deceased, Robert Pitcher, rightfully went into the
room in which the glass containing the whisky and strychnine was, and that the said
Pitcher, without any fault on his part, took, drank and swallowed down the contents of
said glass, not knowing at the time he so drank it that it contained any poison, and that
the drinking of the strychnine contained in said glass caused said Pitcher's death, and
that he died * * * from the effects of drinking said poison, then I instruct you that the
defendant is guilty of manslaughter and you should so find."
exposed situation that it was likely to attract, and did attract, deceased's attention, and if you
further believe from the evidence beyond all reasonable doubt that the deceased, Robert
Pitcher, rightfully went into the room in which the glass containing the whisky and strychnine
was, and that the said Pitcher, without any fault on his part, took, drank and swallowed down
the contents of said glass, not knowing at the time he so drank it that it contained any poison,
and that the drinking of the strychnine contained in said glass caused said Pitcher's death, and
that he died * * * from the effects of drinking said poison, then I instruct you that the
defendant is guilty of manslaughter and you should so find.
R. M. Clarke, for Appellant:
I. The indictment charges murder by means of poison, and no conviction can be had for
murder committed by any other instrumentality other than that specified in the indictment. (1
Comp. L. 1860; 2 Whar. Cr. L. sec. 1059 and note; Rus. on Cr. 467; Roscoe's Cr. Ev. 567; 1
East, P. C. 341.)
II. Murder committed by poison is murder of the first degree and can be nothing else. (1
Comp. L. 2323; People v. Sanchez, 24 Cal. 28; People v. Nichol, 34 Cal. 211; People v.
Bealoba, 17 Cal. 389; Riley v. State, 9 Humph. 646; State v. Pike, 49 N. H. 399; State v.
Harris, 12 Nev. 415; State v. Hymers, 15 Nev. 50; 2 Bish. Cr. L. sec. 727, note 2; People v.
Campbell, 40 Cal. 129; People v. Long, 39 Cal. 694; People v. Vasquez, 49 Cal. 560; People
v. Haun, 44 Cal. 96.)
III. A verdict of murder of the second degree is an acquittal of murder of the first degree.
(People v. Gilmore, 4 Cal. 376; State v. Ross, 29 Mo. 32.)
IV. It was error to charge that defendant was liable for the consequence of her act, if she
negligently and knowingly exposed a deadly poison in such a place or manner as it would be
likely to be taken by another unconsciously.
W. H. Davenport, Attorney General, and J. D. Torreyson, District Attorney of Ormsby
County, for Respondent.
I. The degree of homicide is a fact which the statute requires to be specially found by the
jury.
If the crime charged in the indictment be murder in the first degree, a verdict that the
jury find the defendant guilty of the crime as charged in the indictment is not such a
designation of the degree as the statute requires.
degree, a verdict that the jury find the defendant guilty of the crime as charged in the
indictment is not such a designation of the degree as the statute requires. (1 Whar. Cr. Law,
Sec. 543 and note 6; Whar. on Hom. Sec. 900 and note 3; State v. Rover, 10 Nev. 388, 392;
People v. Campbell, 40 Cal. 129, 138, 139; Johnson v. State, 17 Ala. 618; Levison v. State,
54 Ala. 520; Beaudien v. State, 8 Oh. St. 634; Dick v. State, 3 Oh. St. 89; Parks v. State, Id.
101.)
II. The jury must ascertain the degree, and they have the power to fix a lower degree than
the statute provides. (1 Comp. Laws, 2323; 1 Whar. Crim. Law, Sec. 391; State v. Dowd, 19
Conn. 387; Lane v. Com., 59 Pa. St. 371; Rhodes v. Com., 48 Pa. St. 396; Shaffner v. Com.,
72 Pa., St. 60; Com. v. Keeper Prison, 2 Ash'm 231; Robbins v. State, 8 Oh. St. 131, 193,
194; Beaudien v. State, 8 Oh. St. 635, 637-8.)
III. A party who places poison in such a position that it is likely to be unconsciously and
non-negligently taken by passersby is liable for the consequences. (1 Whar. Cr. Law, Secs.
166 and note 3; 345 and note 1; 385 and note 2; Desty Am. Cr. Law, Sec. 129; J. & N. 3; Reg
v. Michael, 9 Car. & P. 356; Reg v. Chamberlain, 10 Cox, C. C. 486.)
IV. Whoever in attempting to commit suicide unintentionally kills another is guilty of
manslaughter. (1 Whar. Cr. Law, Secs. 328, 453 and notes; Com. v. Mink, 123 Mass. 422.)
By the Court, Hawley, J.:
Appellant was indicted for the crime of murder, alleged to have been committed by the
administering of poison. The jury found her guilty of murder in the second degree.
1. It is argued in her behalf that the verdict is a verdict of acquittal; that the crime alleged
in the indictment was murder in the first degree; that there is no such crime, under our statute,
as murder in the second degree for a homicide committed by means of poison. The statute of
this state declares that all murder which shall be perpetrated by means of poison, lying in
wait, torture, or by any other kind of willful, deliberate, and premeditated killing, or which
shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or
burglary, shall be deemed murder of the first degree;
degree; and all other kinds of murder shall be deemed murder of the second degree; and the
jury before whom any person indicted for murder shall be tried, shall, if they find such person
guilty thereof, designate by their verdict whether it be murder of the first or second degree;
but if such person shall be convicted on confession in open court, the court shall proceed, by
examination of witnesses, to determine the degree of the crime, and give sentence
accordingly. (1 Comp. Laws. 2323.)
Under this statute there are certain kinds of murder which carry with them conclusive
evidence of premeditation, viz., when the killing is perpetrated by means of poison, lying in
wait, or torture; or when the homicide is committed in the perpetration, or attempt to
perpetrate, any of the felonies enumerated in this statute. In these cases the question whether
the killing was willful, deliberate and premeditated is answered by the statute in the
affirmative, and if the prisoner is guilty of the offense charged, it is murder in the first degree.
(State v. Hymer, 15 Nev. 50, and authorities cited in appellant's brief.) But suppose the jury,
in charity for the faults and weakness of the human race, sympathy for the prisoner, or any
other mistaken view of the law or the facts, lessens the offense to murder in the second
degree, is the prisoner to go free? Does not the case stand precisely upon the same plane as a
verdict of murder in the second degree in any case not enumerated in the statute, where there
is a willful, deliberate and premeditated killing? Is it not as much the duty of the jury in such
a case to find the prisoner guilty of murder in the first degree, as in the cases specially
enumerated in the statute? Suppose the jury in such a case, where the evidence is positive,
clear, plain and satisfactory beyond a reasonable doubt, regardless of all the testimony, and in
violation of the well-settled principles of law, should find the prisoner guilty of murder in the
second degree; would the prisoner be entitled to a new trial upon the ground that the verdict is
against the evidence? Is it not a fact that juries frequently render just such verdicts, and the
result cannot be accounted for upon any theory other than that of a compromise of opinion?
Why should such verdicts be allowed to stand? The answer is plain. The reason is that the
statute leaves the question of degree to be settled by the verdict of the jury. A verdict finding
the prisoner guilty of murder, without mentioning the degree, would be a nullity.
murder, without mentioning the degree, would be a nullity.
In State v. Rover, this court, referring to the statute which we have quoted, said: By this
statute, murder is divided into first and second degrees, depending upon the particular
circumstances in which the crime is committed; and whether it be of the first or second
degree, is a fact to be specially found from the evidence adduced, without reference to any
special facts which may be stated in the indictment. In case of a trial, the jury before whom
the trial is had, if they find the defendant guilty, are required to find this fact, and to designate
by their verdict whether their guilt be of the first or second degree; and in case of a plea of
confession, the court is required to determine this question of fact by the examination of
witnesses in open court. It is therefore apparent, from the plain and positive provisions of the
statute, that a verdict which fails to designate the degree of murder of which the jury find the
defendant guilty, is so fatally defective that no judgment or sentence can be legally
pronounced thereon. (10 Nev. 391.)
A judge should always inform the jury of the degree which the law attaches to murder, by
whatever means the crime may have been committed; but in every case it is the province of
the jury, if the prisoner is found guilty, to determine and fix the degree by their verdict, and
the courts cannot deprive the jury of their right to fix the degree by imperatively instructing
them, in a case where the crime was committed by administering poison (or in any other
case), that if they find the prisoner guilty they must find him guilty of murder in the first
degree. (Robbins v. State, 8 Ohio St. 193; Beaudien v. State, Id. 638; Rhodes v. Com., 48 Pa.
St. 398; Lane v. Com. 59 Pa. St. 375; Shaffner v. Com., 72 Pa. St. 61.)
Wharton, in discussing the degrees of murder, says: But, however clear may be the
distinction between the two degrees, juries not unfrequently make use of murder in the
second degree as a compromise, when they think murder has been committed, but are
unwilling, in consequence of circumstances of mitigation, to expose the defendant to its full
penalties. (2 Whart. Crim. Law, 1112.)
In Rhodes v. Com., supra, the court said: Under proper instructions from the bench, it is
not only the right of the jury to ascertain the degree, but it is the right of the accused to have it
ascertained by them. * * * No doubt cases of murder in the first degree have been found in
the second, but this must have been anticipated when the statute was framed, and has
certainly been observed under its operation, and yet it has remained upon our
statute-book since 1794 unaltered in this regard.
murder in the first degree have been found in the second, but this must have been anticipated
when the statute was framed, and has certainly been observed under its operation, and yet it
has remained upon our statute-book since 1794 unaltered in this regard. Possibly the very
distinction of degrees was invented to relieve such jurymen's consciences as should be found
more tender on the subject of capital punishment than on their proper duties under evidence.
Many men have probably been convicted of murder in the second degree, who, really guilty
of the higher crime, would have escaped punishment altogether but for this distinction in
degrees so carefully committed by the statute to juries.
The jury have the undoubted power to fix the crime in the second degree when it ought,
under the law and the facts, to be fixed in the first. We need not speculate why it was so
provided. It is sufficient that it is so written, and we cannot change, alter, or depart from it.
(Lane v. Com., supra.)
Our attention has not been called to any case where a verdict of murder in the second
degree has been set aside upon the ground that the testimony was such as to make the crime
murder in the first degree. But, on the other hand, the direct question involved in this case has
been decided adversely to appellant. (State v. Dowd, 19 Conn. 387; Lane v. Com., supra.) In
the latter case the court said: It has never yet been decided in Pennsylvania that a verdict of
murder in the second degree might not be given in a case of murder by poison. That it may be
given is as unquestionable as the power of the jury is under the act to give it, and impossible
for the court to refuse it.
If the jury fix the crime at murder in the second degree, in a case where the law and the
facts make it murder in the first degree, it is an error in favor of the prisoner, of which the law
will not take any cognizance, and of which the prisoner ought not to complain.
II. Objection is made to certain instructions given by the court, upon the theory that the
poison may have been mixed with whisky with the intent on the part of the appellant to
commit suicide, and was negligently exposed in such a place and manner as would likely to
be unconsciously or non-negligently taken by other persons, either as food or drink, and the
jury were told that in such a case the person so leaving the poison would be "liable for the
consequences," and would be "guilty of manslaughter."
ing the poison would be liable for the consequences, and would be guilty of
manslaughter. This objection cannot be sustained. The use of the words liable for the
consequences, of which complaint is made, might have been error if the court had not in the
same connection stated what the consequences would be; but the instructions upon this point
must be considered together as an entirety, and when so considered they state a correct
principle of law, (Desty Cr. Law, 124b.; 2 Whart. Crim. Law, 1004; Reg. v. Michael, 9
Car. & P. 356;) and it is evident that the jury could not have been misled.
The judgment of the district court is affirmed.
____________
19 Nev. 53, 53 (1885) Sweeney v. Schultes
[No. 1195.]
JAMES SWEENEY, Respondent, v. G. D. SCHULTES, et
al., Appellants.
PracticeNotice in SummonsWhen DefectiveSection 26 of the civil practice act (1 Comp. Laws, 1089)
declares that a certain notice shall be inserted in the summons in certain actions and that a different notice
shall be given in others. Held, that the distinction, as made in the statute, should be observed and
enforced by the courts as essential and necessary.
IdemObject of SummonsGeneral Appearance of DefendantEffect of.The object of a summons is to put
the defendant, upon notice of the demand against him, and to bring him into court at the time therein
specified. If the defendant makes a general appearance by filing a demurrer or answer, the court could
thereafter proceed and grant any relief to which the plaintiff is entitled, regardless of the error in the form
of the notice inserted in the summons.
IdemHarmless ErrorsUpon a review of the facts: Held, that the error of the court in refusing to set aside the
summons, on the ground that it did not contain the notice required by the statute, was immaterial and
harmless, and must be disregarded.
H. K. Mitchell, for Appellants:
The court erred in denying defendant's motions to quash the summons. The summons is
fatally defective. (4 Phill. on Ev. 213;
213; Whitwell v. Barbier, 7 Cal. 62; Gray v. Hawes, 8 Cal. 568-9; Lyman v. Milton, 44 Cal.
632; Tuttle v. Smith, 14 How. Pr. 398; People v. Bennett, 6 Abb. Pr. 343; Luling v. Stanton, 8
Abb. Pr. 378; Cobb v. Dankin, 19 How. Pr. 164; Norton v. Cary, 14 Abb. Pr. 364; 23 How.
Pr. 469.)
Wren & Cheney, for Respondent:
The summons issued in this action is sufficient. A substantial compliance with statutory
provisions regulating the form of summons and process is all that is necessary. (Wheeler v.
Smith, 18 Wis. 651; Barndollar v. Patton, 5 Colo. 46; Milan v. Sproull, 36 Ga. 393; Cleland
v. Tavernier, 11 Minn. 194; Payne v. Collier, 6 Mo. 321; Lewis v. Grace, 44 Ala. 307; Ritter
v. Offutt, 40 Md. 207; Slocomb v. Powers, 10 R. I. 255; Ins. Co. v. Highsmith, 44 Iowa, 330;
Clawson v. Wolfe, 77 N. C. 100; Johnson v. Healy, 9 Ben. 318; Wiggins v. Richmond, 58
How. Pr. 376; Dunkle v. Elston, 71 Ind. 585.)
This is an action of ejectment for the recovery of certain real estate and mesne profits. The
defendants were personally served with summons. They appeared specially, and separately
moved the court to set aside the summons, on the ground that it did not contain the notice
required by section 26 of the civil practice act. The notice in the summons reads as follows:
And you are hereby notified that if you fail to appear and answer the said complaint, as
above required, the said plaintiff will take judgment against you * * * for the restitution of
said lots and parcels of land and premises, and five thousand dollars damages, and costs of
suit.
The motions were denied, and time was given defendants to appear and answer. They
appeared within the time given, and filed a joint demurrer to the complaint, it being therein
stated that it was interposed without waiving any rights they, or either of them, may have
under or by virtue of his separate notice of motion to set aside the summons issued and served
in this case, and the order and ruling of the court made thereon. The demurrer was overruled,
and the defendants were given further time to answer. They failed to file an answer within the
time given, and their default was duly noted by the clerk.
Thereafter, on the same day, they appeared and filed an answer, making therein the same
reservation of their rights as contained in their demurrer. The plaintiff subsequently had the
case set for trial, introduced his proofs, and obtained judgment for the possession of the
property, and for $1,500 damages. This appeal is taken from the judgment.
Did the court err in overruling defendant's motion to set aside the summons? This question
must, in our opinion, be answered in the affirmative. The statute declares in explicit and clear
language what notice shall be inserted in the summons, viz.: FirstIn an action arising on
contract for the recovery of money or damages, that the plaintiff will take judgment for a sum
specified therein, if the defendant fail to answer the complaint. SecondIn other actions, that
if the defendant fail to answer the complaint, the plaintiff will apply to the court for the relief
demanded therein. (Civil Pr. Act, Sec. 26; 1 Comp. L. 1089)
This action came within the second subdivision of this section, and the summons should
have contained the notice therein specified, instead of the notice required in the first
subdivision, which relates to a different cause of action. The legislature having prescribed
that a certain notice shall be given in certain actions, and that a different notice shall be given
in others, the distinction, as made in the statute, ought to be observed and enforced by the
courts as essential and necessary. (Odell v. Campbell, 9 Or. 305.)
In Ward v. Ward the summons, as served upon the defendant, contained the notice
required in the second subdivision of the statute, and the cause of action set forth in the
complaint came within the class designated in the first subdivision. The defendant did not
appear, and judgment was entered by default against him for the amount claimed in the
complaint. He moved to set aside the judgment on the ground that the summons did not
contain the notice required by law. The district court set the judgment aside, and the supreme
court, in affirming the judgment, said: We have no doubt that the entry of a judgment by
default, in the absence of a notice in the summons that in case the defendant failed to appear
and answer within the time prescribed by law, the plaintiff would take judgment for the sum
demanded in the complaint, was, at least, such an irregularity as would justify the court in
vacating the judgment."
least, such an irregularity as would justify the court in vacating the judgment. (59 Cal. 141.)
The defendants had the right to appear specially for the purpose of moving to set aside the
summons, and their motions ought to have been granted, unless the plaintiff applied to the
court for leave to amend the summons, and this is what he ought to have done. (Pollock v.
Hunt, 2 Cal. 194.) This brings us to a consideration of the more important question, whether
the error, in the light of the subsequent proceedings, was prejudicial to the defendants, or of
such a character as demands a reversal of the judgment. Upon this point there appears to be
considerable diversity of opinion. Decisions can be found apparently sustaining both sides of
the question. (See authorities cited in briefs; also, Ridder v. Whitlock, 12 How. Pr. 213; Brett
v. Brown, 13 Abb. Pr. (N. S.) 296; Brown v. Eaton, 37 How. Pr. 325; Briggs v. Sneghan, 45
Ind. 18; Warren v. Crane, 50 Mich. 301.)
But upon close inspection it will be ascertained that the real difference in the results are
caused by a difference in the peculiar facts of each case and the particular language of the
statutory provisions of the respective states, more than upon any controversy as to the general
principles of the law.
Under the Code of New York, as it existed at the time of the decision in Tuttle v. Smith, 14
How. Pr. 395, suits were commenced by the service of a summons, (How. N. Y. Code
1859, 127;) and it was held that the form of the summons, as to the notice required by
section 129 of the Code, (similar to section 26 of our practice act,) must come within the
subdivision in which the cause of action to be stated in the complaint that should thereafter be
filed, belonged. The complaint was set aside on the ground of variance between it and the
summons, with leave to the plaintiffs, if they wished to have their complaint stand, to amend
their summons. It was urged that the defect in the summons was waived by the appearance of
the defendant. The answer to this, as given by the court, was that the defendant treated the
summons as regular, and only objected that the course pursued by the plaintiff was a
departure from his summons or process. It was admitted that if the objection was to the
summons, or the motion necessarily reached to setting that aside, the answer that the defects
were waived by a general appearance would be complete. The decision in Tuttle v. Smith
was followed as having settled the question of practice in Cobb v. Dunkin, 19 How. Pr.
166;
decision in Tuttle v. Smith was followed as having settled the question of practice in Cobb v.
Dunkin, 19 How. Pr. 166; but in the subsequent case of Brown v. Eaton, 37 How. Pr. 325, the
court said it ought not to be followed in cases where the summons and complaint were served
together, nor in any case where it clearly appeared that the defendant could not have been
prejudiced by the mistake in the form of the summons.
Under the practice of this state, actions are commenced by the filing of a complaint with
the clerk of the court, and the issuance of a summons thereon. (Civil Pr. Act, Sec. 22; 1
Comp. L. 1085.) The summons in this case, when served upon the defendant Schultes, was
attached to a certified copy of the complaint. The other defendant was served with the
summons only. But the summons under our statute is required to state, among other things,
the cause and general nature of the action. (Civil Pr. Act, Sec. 24; 1 Comp. L. 1087.) The
summons was complete in all respects as required by section 24, and was defective only in
the form of notice required by section 26. The object of a summons is to put the defendant
upon notice of the demand against him, and to bring him into court at the time therein
specified. If the defendants relied upon the irregularity in the notice, they ought not to have
made any further appearance. When they accepted the time given to answer, and then filed a
demurrer, which raised an issue in the case, it was a general appearance in the action,
notwithstanding the words of reservation contained in the demurrer. (1 Comp. L. 1560.) After
this appearance the court had jurisdiction to proceed and grant any relief to which the plaintiff
was entitled, regardless of the mistake in the form of the notice inserted in the summons. The
summons had served its purpose and spent its force when the demurrer was filed, and hence
the error in the notice of the summons, and the ruling of the court thereon, became immaterial
and harmless; and, as it could not have prejudiced the defendants, it must be disregarded.
(Lake v. Lake, 16 Nev. 366.)
In Dyas v. Keaton, where, substantially, the same questions were involved, the court said:
The defendant will be presumed to be injured by the failure of the plaintiff to comply with
the provision of the statute in relation to notice, when nothing further appears from the
record to have been done by the defendant.
nothing further appears from the record to have been done by the defendant. The mistake in
the notice is a mere technical error, which, however, is, by the weight of authority, deemed
such an irregularity or informality as that a judgment, entered in pursuance thereof, will be set
aside. The plaintiff must comply with an express requirement of the statute, whether
necessary or not, or suffer the consequences of his failure by his summons being declared
defective, and a judgment by default thereon annulled. What should be our action, however,
when the purpose of the summons has been secured by the action of the defendant himself,
and no injury has resulted from such defective process? In this case the appellant did not
choose to stand upon his motion, but without compulsion, (except the fear of a default and
judgment thereon, which it has been the universal practice of the courts in similar cases, so
far as we have examined the reports, to set aside,) appeared and demurred to the complaint,
which, being overruled, he answered and thereupon asked and obtained a continuance until
the next term. * * * The defect in the notice was not such an irregularity or informality as
would have caused a dismissal of the suit. The only result obtained, had the appellant's
motion been sustained, would have been to delay the cause until a proper summons had been
served upon him. By procuring the continuance at the first term, the appellant obtained all the
advantages which he would have secured had his motion to quash the summons been
sustained. (3 Mont. 501.)
The general tendency of the decisions is to look with disfavor upon mere technical
objections, which relate solely to the form of the process or proceedings, especially where it
is apparent that the error is one which has caused no substantial injury to the complaining
party. In pursuance with this general principle, it was enacted in our statute that the court
shall in every stage of an action disregard any error or defect in the pleadings or proceedings
which shall not affect the substantial rights of the parties, and no judgment shall be reversed
or affected by reason of such error or defect. (1 Comp. Laws, 1134.) What was the object of
the legislature in incorporating this provision in the Code? There can be no difference of
opinion upon this question. The principal object was, as stated by the court in Dyas v.
Keaton, supra, To avoid the technicalities of the common-law procedure, by which it was
claimed that justice was often defeated.
that justice was often defeated. This was certainly a most laudable as well as desirable object.
The practical spirit of the age, which will not brook trifling in business affairs, and whose
principal aim is utility, demands that courts should endeavor to secure the attainment of this
avowed design in the adoption of the Code. It is the general rule, now prevailing in the courts,
that wherever and whenever substantial justice is secured, a mere technical error, which is
harmless in its character, and which has worked no injury, will not be permitted to defeat or
annul the final conclusion or consummation of judicial proceedings.
The action of the court in overruling defendants motion did not in any manner affect the
case after the filing of the demurrer. All subsequent proceedings were based upon the
complaint alone. Had the motion to set aside the summons been granted, the only effect
would have been to deprive the plaintiff of his right to collect costs for the service of the
summons, and to delay proceedings in the case until another summons could be served. These
costs, if included in the cost bill, could be deducted upon a proper motion being made. The
delay that would have been gained by having the motion sustained was obtained by the time
subsequently given to file the demurrer and answer. Having generally appeared in the action,
the error in the ruling of the court denying the motions became harmless, and worked no
substantial injury to the defendants. And, as the defendants did not move the court to have the
default or judgment set aside for the purpose of allowing them to present their answer and try
the cause upon its merits, it is plain to be seen that they have not placed themselves in a
position to complain of the judgment.
By the Court, Hawley, J., on rehearing.
A re-argument of this case, upon rehearing, has not changed our views in any respect. The
questions involved were sufficiently discussed in our former opinion.
____________
19 Nev. 60, 60 (1885) Orr Water Co. v. Reno Water Co.
[No. 1180.]
THE ORR WATER DITCH COMPANY, Respondent, v.
THE RENO WATER COMPANY, Appellant.
Pleadings ConstruedAction to Recover Damages for Breach of Contract.Held, that the averments in the
complaint that the money expended in repairing a ditch was paid by plaintiff to defendant's use, and that
the defendant promised to pay the same, may be treated a surplusage and that, without these words, the
facts alleged in the complaint constituted a cause of action to recover damages for breach of contract.
(Belknap, C. J., dissenting.)
IdemUnnecessary Averments.A complaint showing a good cause of action is not bad because of
unnecessary averments contained in it.
Breach of ContractFailing to Repair DitchMeasure of Damages.In an action for breach of contract, in that
the defendant failed to keep plaintiff's ditch in repair after promising to do so in his contract, the proper
measure of damages is the money paid by plaintiff for the repairs which such failure by defendant rendered
necessary.
EvidenceWhen Receipt of Corporation is Admissible.A receipt issued in the name of a corporation, and
signed by a party who owned all the stock, is admissible in evidence, when the claim is made that the
corporation was not doing business at the time such receipt was signed, and had no agent, as it tended to
support plaintiff's claim that defendant did business during the years mentioned.
IdemAdvertisementCollector under Control of Sole Stockholder.An advertisement signed by a collector,
under the instruction of a party who held all the stock and controlled the affairs of the corporation, is also
admissible in evidence for the same reason.
NoticeEstoppel.A party cannot render himself unable to receive a notice, and then be heard to complain
because notice is not given.
Findings of CourtSupported by Evidence.Held, that the finding that the defendant received all the benefits
of the contract is correct.
Appeal from the District Court of the Seventh Judicial District, Washoe County.
Clarke & King, and Pierce Evans, for Appellant:
I. Plaintiff can have no relief not warranted by the pleadings. (1 Comp. Laws, 1211;
Marshall v. Golden Fleece, 16 Nev. 156, 173, 174; Martin v. Matfield, 49 Cal. 44; Bliss on
Code Pl., Sec. 164; Corry v. Gaynor, 21 Oh. St. 277; Swan v. Smith, 13 Nev. 260.) He must
recover according to the case made by the complaint, or not at all. The proofs must
correspond with the pleadings.
respond with the pleadings. No recovery can be had upon the proofs alone.
II. The complaint in this case is in form and substance for money paid to the use and
benefit of appellant. It contains a statement of all the facts essential to this form of action,
and omits facts indispensable to any other form. It alleges the ultimate facts: The payment of
money for appellant's use and benefit, the promise of appellant to pay the same, and refusal to
make such payment. These are the essential and sufficient averments in an action for money
paid. (Nash. Pl. Pr. 142: Van Santvoord's Pl. 429.) The action is not to recover damages for
breach of the contract. The complaint is wholly insufficient in such an action. It omits the
averment of damages, and fails to state any equivalent facts.
III. Treating the complaint as one upon contract to recover damages for breach, it is
wholly unsupported by the evidence. There is no averment of damages. There is no evidence
of damages which can be recovered in an action upon the contract for breach. It does not
appear that respondant [respondent] was injured. It does not appear that respondent had use
for the ditch or water, or was entitled to any use, or that the ditch carried any water in excess
of appellant's rights therein. No notice was given to appellant that the ditch required cleaning,
nor was any demand made upon appellant to clean the ditch, or pay the sum expended in that
behalf. It does not appear that the sum paid for labor and material was the reasonable and
proper cost of cleaning the ditch. The proof admitted was incompetent to support an action
for damages.
The evidence did not tend to show that respondent ever paid any money that could have
been originally demanded of appellant or that it was in any way liable for. One cannot by a
voluntary payment of another's debt, make himself the creditor of that other. (Hassinger v.
Solms, 5 S. & R. 9; Vanderheyden v. Mallory, 1 Coms. 472; Chappellear v. Harrison, 1 Gill
& John. 479; R. G. Factory v. Reid, 5 Cow. 603; Moulton v. Loux,. 52 Cal. 81; Beach v.
Vandenburg, 10 John, 361; Thompson v. Button, 14 John. 87; Smith v. Crocker, 2 Root 84;
Weakley v. Brahan, 2 Stew. 500; Rumney v. Ellsworth, 4 N. H. 138; 2 Green Ev. sec. 114,
note 4.)
V. Respondent had no action or right of recovery against appellant, either upon the
contract for damages or for money paid.
appellant, either upon the contract for damages or for money paid.
VI. It was manifest error to admit the acts and declarations of Geo. B. Hill to bind
appellant. Hill was not an officer or agent of appellant, or in any manner authorized to act for
it. He was acting independent of the corporation upon his own authority and for his own sole
benefit.
VII. The evidence shows without any conflict that Geo. B. Hill had the benefits of the
contract, and that the only demand made was upon Hill.
W. E. F. Deal, for Respondent:
I. The defendant was not dissolved, and it could not be dissolved so as to absolve itself
from performing its contract. The fact that Hill owned all the stock did not affect the
corporation. It could only be dissolved by expiration of its life under its charter or by
proceedings taken for that purpose. (Russell v. McLellan, 14 Pick. 69; Pratt v. Bacon, 10
Pick. 126; Ang. & Ames on Corp. sec. 77, 773; Cooley's Con. Lim. 289, 290; 1 Dillon on
Mun. Cor., sec. 114.)
II. The allegation that the money paid out was paid to defendant's use, and that defendant
promised to pay the same, if necessary, could be treated as surplusage. (Richardson v. Jones,
1 Nev. 405; Williams v. Glasgow, 1 Nev. 533; Huguet v. Owen, 1 Nev. 466; McManus v.
Ophir S. M. Co., 4 Nev. 15.)
III. There was no necessity of alleging damages. The fact that it was the duty of defendant
to repair the ditch, and that plaintiff was compelled to keep the same in repair, and did keep
the same in repair, and pay out the money for defendant's use, are sufficient to import
damages.
IV. Whatever defect there was in the form of the complaint was cured by the answer and
by the judgment. (Bliss on Code Pl. Sec. 438.)
It was within the discretion of the court below to grant the relief it did grant by its
judgment. (N. C. and S. C. Co. v. Kidd, 37 Cal. 304.)
The plaintiff may be allowed any judgment to which, upon the allegations and proofs, he is
entitled to, either at law or in equity. (Armitage v. Pulver, 37 N. Y. 494; Jones v. Butler, 20
How. Pr., 189; Jones v. Butler, 30 Barb. 641; N. Y. I. Co. v. N. W. I. Co., 23 N. Y. 357; N. Y.
I. Co. v. N. W. I. Co., 12 Abb. Pr. 414;
414; N. Y. I. Co. v. N. W. I. Co., 21 How. 296; Wright v. Hooker, 10 N. Y. 51; Scott v.
Pilkington, 15 Abb. 280; 34 N. Y. 346; Simmons v. Eldridge, 29 How. Pr., 309.)
By the Court, Leonard, J.:
Under the laws of this state plaintiff was incorporated December 20, 1875, and defendant,
June 6, 1874. It is alleged in the complaint that heretofore, to-wit, on or about the twentieth
day of March, 1875, the said defendant, by its officers in such behalf duly authorized,
contracted in writing to keep in repair, at its own proper cost and expense, that certain water
ditch of the plaintiff, known as the Orr Ditch, in consideration of the use, for a specified
period, of a portion of the water flowing and to flow through said ditch; that during the years
1876, 1877, 1878, and 1879, and prior to the fourteenth day of June of said last-mentioned
year, (defendant) utterly failed and neglected so to do; and plaintiff was compelled to repair
said ditch, and was compelled to pay, and did pay, in and about the repairing of said ditch,
and for the preservation thereof, to defendant's use, large sums of money, amounting, in the
aggregate, to eleven hundred and thirty-eight 65-100 dollars in United States gold coin, which
defendant promised to pay; that defendant has not paid the same or any part thereof.
Judgment for eleven hundred and thirty-eight 65-100 dollars was demanded, besides interest
and costs.
Defendant denied all the allegations of the complaint, and for further answer alleged the
making of the contract of March 16, 1875, whereby plaintiff's grantors and plaintiff bound
themselves to furnish to defendant twenty-five inches of water for fifty years; that said
contract was still valid and existing between plaintiff and defendant; that defendant had fully
performed said contract on its part, but plaintiff had failed to furnish water as agreed, to
defendant's damage in the sum of fifteen hundred dollars, for which sum it asked judgment
against plaintiff. Plaintiff recovered judgment for eight hundred and thirty-one 45-100 dollars,
and this appeal is from the judgment, and the court's order overruling defendant's motion for a
new trial.
The court found that on March 16, 1875, and until after the incorporation of the Orr
Water-ditch Company, the grantors of plaintiff were the owners of the water-ditch known
as the Orr ditch, with certain rights and privileges;
plaintiff were the owners of the water-ditch known as the Orr ditch, with certain rights and
privileges; that on the sixteenth day of March, 1875, plaintiff's grantors made a contract in
writing with the defendant, by the terms of which the owners of the ditch and water above
named, granted, bargained, sold, and released to the defendant and its assigns, for their use
and benefit for fifty years, to flow continuously, twenty-five inches of water; that in
consideration of such sale defendant contracted, among other things, to keep the ditch in good
order and repair between certain points stated, and also that said owners and their assigns
might divert the water from said ditch for a reasonable time for the purpose of enlarging the
same, whenever the said owners might elect so to do, but for no other purpose; that after the
making of said contract, and after plaintiff was duly incorporated, the owners of said Orr
ditch, water-rights and privileges thereto appurtenant, and their grantors and assigns, sold and
assigned, by a good and sufficient deed, all their right, title, and interest in and to said ditch,
water-rights, privileges, and appurtenances to plaintiff, which, ever since, has been and now
is the owner thereof; that plaintiff and its grantors fully performed their part of said contract;
that defendant received all the benefits of said contract from March 16, 1875, until the
commencement of this action; that, during the time mentioned in the complaint, defendant
wholly failed to keep any part of said ditch in good or any order or repair; that repairs were
necessary in each of the years stated, in order that the ditch might carry water; that plaintiff
duly demanded of defendant that it should make the necessary repairs; that defendant
neglected and refused to make the same, and plaintiff was compelled to make them, in order
that the ditch might be used, and, in so doing, paid out eight hundred and thirty-one dollars
and twenty-five cents, no part of which has been paid, although payment has been demanded;
that, by reason of the premises, plaintiff has been damaged in the sum just stated.
Many of the errors urged by appellant rest upon the claim that this is an action of
assumpsit, for money paid to the use and benefit of defendant, and not an action to recover
damages for breach of contract. It is claimed that the complaint is insufficient to sustain an
action for damages.
The Code provides that the complaint shall contain a statement of the facts constituting
the cause of action, in ordinary and concise language;
ment of the facts constituting the cause of action, in ordinary and concise language; and the
court may grant plaintiff any relief consistent with the case made by the complaint and
embraced within the issue. (Comp. Laws, 1102, 1211.) The material facts alleged by plaintiff
are that defendant contracted to keep the ditch in repair, but failed and neglected to do so; that
plaintiff was compelled to do what defendant had agreed to do, for the preservation of its
property, and to pay therefor the sum of eleven hundred thirty-eight 65-100 dollars, which
sum has not been paid by defendant. The allegations that the money was paid by plaintiffs to
defendant's use, and that the defendant promised to pay the same, may be treated as
surplusage. Without those words the facts alleged in the complaint constitute a cause of
action for damages for breach of contract.
In Byxbie v. Wood, 24 N. Y. 610, the court said: Having money that rightfully belongs to
another creates a debt; and wherever a debt exists without an express promise to pay, the law
implies a promise; and the action always sounds in contract. Under the code this implied
promise is treated as a fiction, and the facts (out of which the prior law raised the promise)
are to be stated without any designation of a form of action, and the law gives such judgment
as, being asked for, is appropriate to the facts. Of course, we cannot now say that a particular
phrase makes a particular form of action, so that a party, by its use, may shut himself out from
the remedy which his facts would give him.
And in Wright v. Hooker, it is said: I think these allegations are sufficient to sustain the
judgment of the court that Hooker became liable as one of the drawers of the bill in suit. It is
true that it would appear that the person who drew the complaint contemplated that Hooker
would be held liable in some other capacity. But that is immaterial. The very object of the
new system of pleading was to enable the court to give judgment according to the facts stated
and proved, without reference to the form used, or to the legal conclusions adopted by the
pleader. (10 N. Y. 51.)
A good cause of action is not destroyed by adding immaterial matter, and a party is not
estopped or concluded by a mistaken averment of law in his pleading. (Union Bank v. Bush,
36 N. Y. 636, 637;
Y. 636, 637; and see Marquat v. Marquat, 12 N. Y. 341; Eno v. Woodworth, 4 Comst. 253.)
It is true, plaintiff did not allege in terms that it had been damaged in the sum paid out, but,
from the facts stated in the pleadings, the law presumes damages. Plaintiff was limited to a
reasonable and necessary amount paid out for keeping the ditch in repair, since no other
injury was pleaded. Upon the facts alleged and proven, the proper measure of damages was
the money paid for necessary repairs. (Green v. Mann, 11 Ill. 614.)
It was not error to admit in evidence the water receipts of defendant for the years
mentioned in the complaint. One of the issues raised by defendant, whether it constituted a
defense or not, was that it did no business and had no agent between April 4, 1876, and
August 13, 1879. These receipts, together with the testimony admitted in connection
therewith, tended to support plaintiff's claim that defendant did business during the years
mentioned, as it did in 1875, and that it received the benefits arising from the contract set out
in the pleadings. The same is true of the receipts of 1880. They, in connection with the
receipts for 1876-1879, tended to show that the corporation furnished water during the time
mentioned in the complaint the same as it did before and after. (Newton Manufacturing Co. v.
White, 42 Ga. 149.) And our conclusion is the same in relation to the advertisement published
in the Nevada State Journal, signed by C. A. Richardson, collector. The receipts were issued
by Hill, the owner of all the stock, who controlled the affairs of the corporation as he pleased.
They were issued in the name of the corporation, and to them were appended its rules. The
advertisement was inserted by an agent employed by and acting under Hill's instructions.
The court did not err in refusing to strike out plaintiff's testimony, showing demands and
notices served upon George B. Hill, Smith Hill, Hoyt, and Richardson, to repair and clean out
the ditch. The facts material to this question are these: The corporation defendant elected
trustees in March, 1876. In April following, George B. Hill purchased all the stock, and
assumed possession and control of the property of the corporation. But the corporation was
not dissolved in the manner prescribed by law. (2 Comp. L. 3410.) The trustees did not
resign, but between April 21, 1876, and June 14, 1879, did not pretend to act in an official
capacity, and, for the reasons stated in Orr W. D. Co. v. Reno W. Co., 17 Nev. 171
pretend to act in an official capacity, and, for the reasons stated in Orr W. D. Co. v. Reno W.
Co., 17 Nev. 171, were not trustees de jure or de facto. George B. Hill controlled the property
and carried on the business as it had been done, and as it was done afterwards, by himself and
agents employed by him. But, although he managed the business as he pleased and for his
own benefit, as the owner of all the stock, it was done in the name of the corporation. Water
bills were made out in the name of defendant. Water consumers were required to comply with
rules of the corporation. The water-works were assessed to the corporation.
The motion to strike out was made upon the ground that the notices were given to persons
who were not shown to have been agents or officers of defendant, and that notice to such
agents or officers only, could bind it. We have said that the corporation was not dissolved in
the manner prescribed by statute. It was not dissolved or relieved from its corporate liabilities
and responsibilities by a concentration of its stock in the hands of Hill. (Newton Manuf'g Co.
v. White, supra.) Although Hill owned all the stock, and there were no lawful trustees, still
the corporation existed as a legal entity, and with it, not with Hill, plaintiff had to deal.
(Russell v. McClellan, 14 Pick. 69; Ang. & A. on Corp., (10th Ed.,) sec. 771.)
If notices were necessary, they had to be given to the corporation through its proper
officers, if such it had. If it had them not, plaintiff should not be compelled to suffer for
defendant's fault. Defendant had power to enter into the contract in question, and plaintiff's
right of action for its breach continues until the liability is discharged. Defendant cannot
render itself unable to receive notice and then be heard to complain because notice is not
given. But Hill was the only party in interest, and if he and the persons employed by him were
not agents of defendant, then it had none. The evidence shows that plaintiff gave all the notice
it had power to give, and under the circumstances we are satisfied the court did not err in
finding that plaintiff duly demanded of defendant that it should make the necessary repairs.
Objection is made, also, to the finding that the defendant received all the benefits of the
contract from March 16, 1875. We are not prepared to admit that this finding was necessary
in order to establish defendant's liability; still it is correct. It is said that Hill received the
benefits of the contract, because he owned the stock and managed the property and
business upon his own authority and for his sole benefit.
is said that Hill received the benefits of the contract, because he owned the stock and
managed the property and business upon his own authority and for his sole benefit. But he did
so only by reason of his ownership of the stock. The title to the real and personal property
was in the corporation. The right, under the contract, to use the twenty-five inches of water
was in defendant. Primarily, the benefits accrued to the defendant, and secondarily to Hill,
because he owned all the stock. Hill took all the profits, because no one else had any stock. If
his right to use the water from plaintiff's ditch had been questioned, he would have had to
produce his stock as the foundation of his title. He had no other.
The judgment and order appealed from are affirmed.
Belknap, C. J., dissenting:
The only cause of action set forth in the complaint is in assumpsit, for money paid for the
use of the defendant. No evidence was introduced tending to sustain this cause of action, but
the plaintiff recovered judgment for the damages which, upon the proof, it appeared to have
sustained by reason of defendant's failure to keep a water ditch in repair. The statute provides
that if the defendant has answered, the court may grant any relief consistent with the case
made by the complaint and embraced within the issue. But the right upon which the plaintiff
recovered is distinct from that averred in the complaint, and is not embraced within the issue.
For no facts are properly in issue unless charged in the bill, and of course no proof can be
generally offered of facts not in the bill; nor can relief be granted for matters not charged,
although they may be apparent from other parts of the pleadings and evidence, for the court
pronounces its decree secundum allegata et probata. (Story, Eq. Pl. Sec. 257; Carpentier v.
Brenham, 50 Cal. 549.)
I cannot adopt the suggestion that the words to defendant's use, and the defendant
promised to pay the same, be treated as surplusage, because they are material to the cause of
action pleaded. For these reasons I dissent from the judgment.
____________
19 Nev. 69, 69 (1885) Boynton v. Longley
[No. 1199.]
J. W. BOYNTON, Appellant, v. A. A. LONGLEY,
Respondent.
Flow of WaterRights of Upper and Lower Land OwnersEasementServitudeDamages.The prevailing
doctrine, as to the flow of water caused by rain, snow or natural drainage, is that when two tracts of land
are adjacent and one is lower than the other, the owner of the upper tract has an easement in the lower
land to the extent of the water naturally flowing from the upper land to and upon the lower tract, and that
any damage that may be occasioned to the lower land thereby is damnum absque injuria.
IdemWhere Flow is Caused by Act of ManThe rule above stated only applies to waters which flow
naturally from the causes stated. Courts have generally declared that the servitude of the lower land
cannot be augmented or made more burdensome by the acts or industry of man.
IdemRights of FarmersArtificial IrrigationWhere both the upper and lower land owners are farmers,
engaged in the ordinary cultivation of their respective lands by artificial irrigation; held, that the law
should not be so construed as to deny or materially abridge the rights of either party to prosecute their
agricultural pursuits, or deprive them of any of the incidents necessary to cultivate and improve their
lands.
IdemSic utere tuo ut alienum non laedas. The upper land owner, while having the right to make a reasonable
use of the water for irrigation, must so use, manage and control it as not to injure his neighbor's land. He
should not be permitted to make his estate more valuable by an act which renders the estate of the owner
of the lower lands less valuable.
Prescriptive RightsIncrease of Flow of WaterA mere acquiescence or permission on the part of the lower
land owner to allow the flow of the waste or surplus water in such limited quantity as did his land no
injury, cannot be so construed as to give the upper land owner a prescriptive right to increase the flow to
such an extent as to damage the lands of the lower land owner.
IdemExtent of RightsTime Within Which Right AttachesThe right acquired by prescription is only
commensurate with the right enjoyed. The extent of the enjoyment measures the extent of the right. The
right gained by prescription is always confined to the right as exercised for the full period of time
required by the statute, which in this state is five years.
IdemEnlargement of UseServitudeInvasion of RightsA party claiming a prescriptive right for five
years who, within that time, enlarges the use, cannot at the end of that time, claim the use as enlarged
within that period. The acts by which the right is sought to be established must be such as to operate as an
invasion of the right claimed to such an extent that during the whole period of use the party whose estate
is sought to be charged with the servitude could have maintained an action therefor.
Assignment of ErrorsNo errors, except such as are embraced in the assignment of errors, will be considered
by this court.
The facts are sufficiently stated in the opinion.
Clarke & King, for Appellant:
I. Irrigation in this state is a necessity to the cultivation of the soil, and therefore a right
incident to the ownership and cultivation of land. If the owner of the land has the right to
cultivate it, he has the right to do that which is indispensible [indispensable] to irrigation,
to-wit, irrigate. (Barnes v. Sabron, 10 Nev. 243; Union M. & M. Co. v. Ferris; 2 Saw., 191.)
II. Every man has the right to beneficially use his own, and if in such use another is
damaged, the law affords no remedy. To give a remedy in such case would destroy the right.
(Broom's Leg. Max. 195; Field on Dam. 36, 37, Sec. 40.)
III. It is both the law of nature and society that the lower land owes a servitude to the
upper to receive the water which falls or flows by natural causes and natural channels upon it.
(Martin v. Riddle, 26 Pa. St. 415; Butler v. Peck, 16 Ohio St. 334; Laumier v. Francis, 23
Mo. 181; Beard v. Murphy, 37 Vt. 99; Gillham v. Madison R. R., 49 Ill. 484; Ogburn v.
Connor, 46 Cal. 346; Kauffman v. Gresemer, 26 Penn. St. 407; Bassett v. Salisbury M. Co.,
43 N. H. 569; Ang. on Wat. Cour., Sec's 108 a, b, c, d, and e.)
IV. Appellant, having flowed the waste water from his irrigation upon the respondent's
land for five years adversely, and under claim of right so to do, has acquired a right by
prescription. (Earl v. De Hart, 1 Beasly, 285; Ang. on Wat. Cour. 108h, 108i, 206a and 372;
Sargent v. Gutterson, 13 N. H. 467; Cowell v. Thayer, 5 Met. 253.)
The infringement of a right is sufficient. (Brown v. Ashley, 16 Nev. 315, 316; Ang. on
Wat. Cour. Sec. 135; B. M. Co. v. N. M. Co. 16 Pick. 241; Munroe v. Stickney, 48 Me. 462;
Butman v. Hussey, 12 Me. 407; Wheatley v. Baugh, 25 Penn. St. 528.)
Robert H. Lindsay, for Respondent:
1. There is no pretence on the part of appellant that the waste water complained of by
respondent comes from any other than purely artificial sources. Upon this state of facts
counsel for appellant claim that the right of irrigation is a natural right in the same sense
that the right to breathe the air is a natural right, and that if the respondent is injured or
damaged by appellant in his exercise of this natural right to irrigate he has no redress as
it is damnum absque injuria.
for appellant claim that the right of irrigation is a natural right in the same sense that the right
to breathe the air is a natural right, and that if the respondent is injured or damaged by
appellant in his exercise of this natural right to irrigate he has no redress as it is damnum
absque injuria.
That such is not the law of the land is shown by reference to the following cases: (Martin
v. Jett, 12 La. 501; 32 Am. Dec. 123; Ogburn v. Connor, 46 Cal. 346; Butler v. Peck, 16
Ohio St. 334; Laney v. Jasper, 39 Ill. 54; Merritt v. Parker, 1 Coxe, 460; Delahoussaye v.
Judice, 13 La Ann. 587; Adams v. Walker, 34 Conn. 466; Sharp v. Hancock, 8 Scott N. R. 46;
Harrison v. G. N. R. R. Co. H. & C. Exch. 231; Livingston v. McDonald, 21 Iowa, 165, 174.)
II. A party claiming a prescriptive right to an easement in land must show such an
infringement of a right as will occasion damage and give the party damaged a right of action.
There must be such use of the premises and such damage as will raise a presumption that
plaintiff would not have submitted to it unless the defendants had acquired a right so to use
it. (Grisby v. C. L. W. Co. 40 Cal. 406; Hansen v. McCue, 42 Ib. 310; Woods on Nuis. Secs.
709, 716, 719; Crosby v. Bessey, 49 Me. 539; Norton v. Volentine, 14 Vt. 239; Webster v.
Flemming, 2 Humph. 518; Plumleigh v. Dawson, 6 Ills. 544; Woodruff v. North Bloomfield
G. M. Co. 9 Saw. 442.)
This case presents an interesting question which has never been decided in this state.
Appellant is the owner of certain lands which require irrigation, and the water used for this
purpose flows, by the laws of gravitation, onto the adjacent and lower lands owned and
cultivated by respondent. This action was instituted by respondent to recover damages to his
land and crops alleged to have been caused by the waste water flowing from appellant's land,
and for an injunction. The facts as found by the court, at the request of plaintiff, are as
follows: That plaintiff has been in the possession of and has cultivated all of the lands
described in the complaint, except the S. W. quarter of section 20, township 19 N., R. 20 E.,
since A. D. 1862, and entered into possession of and cultivated said last-mentioned lands
since 1875; that defendant entered into possession and commenced the cultivation of his
said lands in part in 1S69, and part in 1S70;
session and commenced the cultivation of his said lands in part in 1869, and part in 1870; that
at the time of the entry into possession and commencing to cultivate his said land, there was
only about 120 acres thereof which was cleared off and ready for irrigation, leaving some one
hundred and seventy acres of waste and unbroken land which had never been irrigated; that at
the time this action was brought, defendant cultivated and irrigated, of said lands mentioned,
291 acres; that defendant and his predecessors in interest procured at all times the water
necessary for irrigation of said lands through an artificial water-ditch * * * which conducted
the waters of the Truckee river a long distance to said land, as well as waste or surplus waters
from the lands of other farmers; that prior to 1878 defendant had only the right to use 150
inches of water from said ditch; that in 1870 he cleaned and enlarged said ditch, and in 1878
said ditch was enlarged to its present capacity by other parties, for the express purpose of
protecting the lands of plaintiff from the waste and surplus waters of other farmers; that
plaintiff cultivates several hundred acres of land by means of irrigation, and that his said
lands are only valuable with the proper use of water; that portions of his said lands are very
flat, and the waters discharged thereon from defendant's lands cannot run off, but if so
discharged will remain standing thereon until drank up by the soil or evaporated; that in
August, A. D. 1882, the surplus or waste waters upon defendant's lands were discharged upon
plaintiff's lands, and flooded and covered about forty acres thereof, and remained standing
thereon to the depth of three or four inches for ten or twelve days; that plaintiff's system of
drainage, and his ditches therefor, are sufficient for his own and ordinary necessities, but are
insufficient to collect and control the waters from defendant's lands.
In a dry and arid climate, where irrigation is necessary in order to cultivate the soil, the
question as to the rights of the proprietors of upper and lower lands in regard to the waste
water has seldom arisen, because, as a general rule, the lower land-owner is willing to
receive, dispose of, and profit by the use of all water flowing from the upper lands of another
in irrigating his own land. It is seldom that any land-owner in this state has occasion to
complain of too much water. The cry is, usually, not for less, but for more. As to the flow of
water caused by the fall of rain, the melting of snow, or natural drainage of the ground,
the prevailing doctrine is that when two tracts of land are adjacent and one is lower than
the other, the owner of the upper tract has an easement in the lower land to the extent of
the water naturally flowing from the upper land to and upon the lower tract, and that any
damage that may be occasioned to the lower land thereby, is damnum absque injuria.
caused by the fall of rain, the melting of snow, or natural drainage of the ground, the
prevailing doctrine is that when two tracts of land are adjacent and one is lower than the
other, the owner of the upper tract has an easement in the lower land to the extent of the water
naturally flowing from the upper land to and upon the lower tract, and that any damage that
may be occasioned to the lower land thereby, is damnum absque injuria. Water seeks its level
and naturally flows from a higher to a lower plane; hence the lower surface, or inferior
heritage, is doomed by nature to bear a servitude to the higher surface, or superior heritage, in
this: that it must receive the water that naturally falls on and flows from the latter. The
proprietors of the lower land cannot complain of this, for aqua currit et debet currere ut
solebat. But this rule--this expression of the law--only applies to waters which flow naturally
from springs, from storms of rain or snow, or the natural moisture of the land. Wherever
courts have had occasion to discuss this question they have generally declared that the
servitude of the lower land cannot be augmented or made more burdensome by the acts or
industry of man. (See authorities cited in the briefs of counsel.)
Washburn, referring to the respective rights of adjacent land-owners, in respect to waters
which fall in rain, or are in any way found upon the surface, but not embraced under the head
of streams or water-courses, nor constituting permanent bodies of water, like ponds, lakes,
and the like, before reviewing the authorities upon the subject, says: It may be stated as a
general principle that by the civil law, where the situation of two adjoining fields is such that
the water falling or collected by melting snows and the like upon one, naturally descends
upon the other, it must be suffered by the lower one to be discharged upon his land, if desired
by the owner of the upper field. But the latter cannot, by artificial trenches or otherwise, cause
the natural mode of its being discharged to be changed to the injury of the lower field, as by
conducting it by new channels, in unusual quantities onto particular parts of the lower field.
(Wash. Eas. 450.)
In Livingston v. McDonald, 21 Iowa, 160, the court declared, after reviewing numerous
authorities, that the owner of the upper land had no right, even in the course of the use and
improvement of his farm, to collect the surface water upon his own lands into a drain or
ditch, increased in quantity or in a manner different from the natural flow, and discharge
the same upon the lower lands of another, to the injury of such lands.
provement of his farm, to collect the surface water upon his own lands into a drain or ditch,
increased in quantity or in a manner different from the natural flow, and discharge the same
upon the lower lands of another, to the injury of such lands.
In the case under consideration the facts are different from any of the decided cases. Here
both parties are farmers, engaged in the ordinary cultivation of their respective lands by
artificial irrigation. To conduct and carry on this business profitably, it is absolutely necessary
to bring water from points where it can be obtained, remote and distant from their lands.
Without the reasonable use of this water their lands would be comparatively worthless. The
law should not be so construed as to deny or materially abridge the rights of either party to
prosecute his agricultural pursuits, or deprive him of any of the incidents necessary to
cultivate and improve his lands. We are of the opinion that the upper land-owner, while
having the undoubted right to make a reasonable use of the water for irrigation, must so use,
manage, and control it as not to injure his neighbor's land. Sic utere tuo ut alienum non
laedas. He should not be permitted to make his estate more valuable by an act which renders
the estate of the owner of the lower lands less valuable. This general doctrine is derived from
the civil law; it is in harmony with the rules established by a majority of the decided cases
having any analogy to the case at bar, and it is, in our opinion, founded upon substantial
reasons of justice and equity. In the discussion of these principles the words of Pothier are
often quoted with approval: Each of the neighbors may do upon his heritage what seemeth
good to him; in such manner, nevertheless, that he doth not injure the neighboring heritage.
(Shane v. Kansas City R. Co. 71 Mo. 245.)
In Livingston v. McDonald, supra, the court said: In examining this subject, and in
seeking to settle it upon proper principles, it would be inexcusable to overlook the doctrines
of the civil law respecting it. That law, embodying the accumulated wisdom and experience
of the refined and cultivated roman people for over a thousand years, though not binding as
authority, is often of great service to the inquirer after the principles of justice and right. * * *
In the determination of this case we recognize the general rule that each may do with his own
as he pleases;
with his own as he pleases; but we also recognize the qualification that each should so use his
own as not to injure his neighbor.
But it is claimed by appellant that he has acquired the right by prescription to have the
waste water flow down to and upon the lands of respondent, and that the court erred in giving
certain instructions in relation to this right. We are of opinion that the instructions
substantially embody correct principles of law that are applicable to the facts of this case; that
the objections urged are more technical than substantial; and that it is apparent, even if the
instructions were erroneous to some extent, that the jury could not have been misled thereby
to the prejudice of appellant. It is useless to discuss the particular phraseology in the
instructions to which objection is made, for it is manifest, from the findings of the court and
jury, that appellant failed to prove the essential facts necessary to enable him to defeat the
action on this ground. The court, at the request of defendant, found the following facts: That
from 1870 to 1879, both years inclusive, defendant irrigated the lands mentioned in the
answer herein, and used water thereon, in sufficient quantity to raise valuable crops of grass
and hay; that the quantity of water so used by defendant, during this period, varied in quantity
each year, but was always sufficient in amount to properly and reasonably irrigate his said
lands; that the waste water arising from such irrigation flowed upon plaintiff's lands; that such
flowing was open, notorious, continuous, peaceable, and uninterrupted, and under claim of
right, and an infringement of the estate of plaintiff; but that the quantity of water flowing
from this irrigation, and the manner of its use, was not the same, but different, during the
years, and it was not shown or determined what quantity of surplus or waste water was so
permitted or suffered to flow or drain upon plaintiff's land, during any time of said period,
and the same did not result in any damage to plaintiff's estate.
In the findings requested by the plaintiff the court says: That defendant has steadily
increased the quantity of water used upon his land, and the surplus thereof, since A. D. 1869;
that neither defendant nor his predecessors in interest, at any time for five years,
continuously, under claim of right, openly, notoriously, peaceably, and with the acquiescence
of the plaintiff, [did] flow, or suffer or permit to flow, any certain quantity of surplus or
waste water, arising from the irrigation of his lands, upon the lands of plaintiff."
quantity of surplus or waste water, arising from the irrigation of his lands, upon the lands of
plaintiff.
The jury, in answer to the special issues submitted in this case, found that the defendant, in
the irrigation of his lands in the years 1880, 1881 and 1882, used more water than was used
in preceding years; that the surplus water discharged upon plaintiff's land in these years was
greater in quantity than in previous years; that the plaintiff objected against the discharge of
water upon his lands, and remonstrated with defendant whenever water was discharged on
his land to his claimed damage; that in 1881 and 1882 the waste or surplus water flowing
upon plaintiff's land was twice turned off, and the flow thereof ceased, upon request or
demand made by plaintiff. All of these findings are sustained by the evidence.
A mere acquiescence or permission on the part of the respondent to allow the flow of the
waste or surplus water in such limited quantity as did his land no injury, cannot be so
construed as to give appellant a prescriptive right to increase the flow to such an extent as to
damage respondent's land. (Blaisdell v. Stephens, 14 Nev. 23.) Appellant failed to show to the
satisfaction of the court and jury that he had continuously exercised the right of flowing the
waste water upon respondent's land for the period of five years without any substantial
change. On the contrary, the evidence shows, as the findings state, that appellant has steadily
increased the quantity of water used upon his land; and that the surplus water by him
discharged upon the respondent's land in the years A. D. 1880, 1881 and 1882 was greater in
quantity than in previous years.
The right acquired by prescription is only commensurate with the right enjoyed. The extent
of the enjoyment measures the extent of the right. The right gained by prescription is always
confined to the right as exercised for the full period of time required by the statute, which is,
in this state, five years. A party claiming a prescriptive right for five years, who, within that
time, enlarges the use, cannot, at the end of that time, claim the use as enlarged within that
period. To acquire the right, it was incumbent on appellant to prove that he had, for the full
period of five years, flowed the water upon respondent's land to such an extent as to occasion
damage, and give respondent a right of action. The right by prescription had its origin in a
grant, and where a grant is lost, the user is the only evidence of the right supposed to have
been granted, and the presumption of a grant can only exist where there has been an
open, adverse, continuous and uninterrupted, user to the full extent and nature of the
easement claimed.
only evidence of the right supposed to have been granted, and the presumption of a grant can
only exist where there has been an open, adverse, continuous and uninterrupted, user to the
full extent and nature of the easement claimed. The acts by which the right is sought to be
established must be such as to operate as an invasion of the right claimed to such an extent
that during the whole period of use the party whose estate is sought to be charged with the
servitude could have maintained an action therefor. The findings in this case also state that,
within five years prior to the commencement of this action, the respondent remonstrated with
and denied the right of appellant to flow the surplus water over his (respondent's) land to such
extent or in such quantity as to damage the same, or the crops growing thereon, and that upon
respondent's request appellant ceased to flow the water. This was sufficient to show that the
use to the extent claimed was not acquiesced in by respondent, and to prevent the
presumption of a grant authorizing such flow of the water.
There is no assignment of error which authorizes this court to consider any of the
objections urged by appellant against the injunction granted by the court. The judgment of the
district court is affirmed.
____________
19 Nev. 78, 78 (1885)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
APRIL TERM, 1885.
____________
19 Nev. 78, 78 (1885) Jones v. Adams
[No. 1081.]
JOSEPH JONES, Appellant, v. JOHN Q. ADAMS, Respondent.
Implied FindingsPresumptions in Favor of.When the evidence in a case is not presented to the appellate
court for review, every material fact, not found, must be presumed in favor of the judgment.
Riparian RightsCommon LawReasonable Use of Water for Irrigation.Under the principles of the
common law riparian proprietors had the right to a reasonable use of the waters of a stream running
through their respective lands for the purposes of irrigation.
IdemCommon Law Not ApplicablePrior Appropriation.Prior to the passage of the act of congress of July
26, 1866, the doctrines of the common law, declaratory of the rights of riparian proprietors respecting the
use of running waters, was held to be inapplicableexcept to a limited extentto the wants and
necessities of the people of the Pacific coast states and territories, and the courts decided that prior
appropriations gave the better right to the use of the running waters to the extent, in quantity and quality,
necessary for the uses to which the waters were applied.
19 Nev. 78, 79 (1885) Jones v. Adams
IdemEffect of Act of Congress of July 26, 1866.Held, that the ninth section of the act of congress
confirmed to the owners of water rights on the public lands of the United States the same rights which
they held under the local customs, laws and decisions of the courts prior to its enactment; that the act did
not introduce any new system or any new or different policy upon the part of the general government and
that it recognized, sanctioned, protected and confirmed the system already established and provided for
its continuance. (Vansickle v. Haines, 7 Nev. 249, overruled.)
Appeal from the District Court of the Second Judicial District, Douglas County.
N. Soderberg, for Appellant:
I. Every riparian owner is entitled to a stream of water flowing through his land, without
diminution or alteration. (Ang. on Wat. C., Secs. 95, 120, 121, 123, 129, and notes; Godd. on
Ease., 56; Wash. on Ease., 231; Phear on Water Rights, 24; Ingraham v. Hutchinson, 2 Conn.
584; Dickinson v. Grand Junction C. Co., 7 Exch. 282, 292, 300; Chasemore v. Richards, 7
H. L. Cas. 349.)
II. A riparian owner to whom the water first comes in its flow has the right to use it for
domestic purposes and for watering his cattle, but he has no right to so obstruct or divert the
stream as to prevent the running of water substantially as in a state of nature it was
accustomed to run. The maxim of the law which he is bound to respect, while availing
himself of this right, is sic utere tuo ut alienum non laedas. (3 Kent Com., 440; Ang. on Wat.
C., Sec. 195; Tyler v. Wilkinson, 4 Mason, 400; Ferrea v. Knipe, 28 Cal. 341; Creighton v.
Evans, 53 Cal. 56.)
III. Jones, as the owner in fee of 360 acres of land, for which a United States patent was
issued in 1865, and through which Sierra creek naturally flows, is the owner by riparian right
of all the waters of the stream as incident to the land. This question is res adjudicata in
Nevada. (Vansickle v. Haines, 7 Nev. 249; Tyler v. Wilkinson, 4 Mason, 400; Mason v. Hill,
5 Barn. & A. 1; Atchison v. Peterson, 20 Wall. 507; Godd. on Ease., 251-2; Bainb. on M. &
M., 100.)
IV. The doctrine of riparian proprietorship laid down in Vansickle v. Haines, supra, has
become a rule of property in this state, and should be adhered to upon the principle of stare
decisis.
19 Nev. 78, 80 (1885) Jones v. Adams
decisis. (Rockhill v. Nelson, 24 Ind. 422; Bennett v. Bennett, 34 Ala. 53; Seale v. Mitchell, 5
Cal. 402; Linn v. Minor, 4 Nev. 467; 1 Kent Com., 476.)
V. The doctrine of riparian rights is fully applicable to our circumstances and the physical
condition of this country.
VI. The supreme court of the United States has distinctly recognized the doctrine of
riparian rights as a common law doctrine. (Beissell v. Scholl, 4 Dall. 211; Railroad v.
Schurmeir, 7 Wall. 288.) The case of Broder v. Natoma Water Co., is not applicable.
VII. The plaintiff has an absolute and indefeasible title to his land. He owns everything on
it--the soil, the trees, the stones, the water--everything that a fee simple owner can grant to a
fee simple grantee. It is agricultural land; all the water of the stream is indispensable to its
vitality and fertility. The water constitutes its very life. He cannot legally be deprived of a
valuable part of his estate without his consent.
A. C. Ellis, for Respondent:
[The brief of respondent contended that the question disposed of in Vansickle v. Haines,
was not raised in this case, and did not discuss the questions decided in this opinion.]
A rehearing was granted in this case for the purpose of considering the specifications of
error relied upon by appellant. The only question that can be determined under the
specification is whether the court erred in rendering the judgment it did upon the findings.
(Jones v. Adams, 17 Nev. 85.) The court declared, by its judgment and decree, that appellant
was entitled to seven-tenths of the water of Sierra creek, and that respondent was entitled to
three-tenths, and gave to the respective parties the right to divert the amount of water awarded
to them out of and away from the stream on their respective lands for the purpose of
irrigation, and for their stock and domestic purposes. The evidence upon which the findings
were made cannot be reviewed. Every material fact, not found, must be presumed in favor of
the judgment. The third and fifth findings are as follows:
(Third) That the plaintiff, Joseph Jones, is the owner of a usufruct in the waters of said
stream, and that he and his grantors first appropriated and used, and that he is the owner,
by rights of appropriation and use, of seven-tenths part of all the water customarily
flowing in said stream;
19 Nev. 78, 81 (1885) Jones v. Adams
grantors first appropriated and used, and that he is the owner, by rights of appropriation and
use, of seven-tenths part of all the water customarily flowing in said stream; that the plaintiff,
Joseph Jones, is entitled to use, as the first appropriator, upon his said land, upon each and
every part thereof, seven-tenths of all the water customarily flowing in said Sierra creek, and
is entitled to divert the said water from the said stream upon his said land by means of flumes,
ditches, or otherwise, and to use the same upon his said land for the irrigation thereof; and to
use so much of the said seven-tenths of said stream as is necessary for his stock and domestic
purposes.
(Fifth) That the defendant, John Q. Adams, is the owner of a usufruct in the waters of
said stream, and that he and his grantors, in the year 1860, appropriated and used, and that he
is the owner, by right of appropriation and use, of three-tenths part of all the water
customarily flowing in said stream; and that said defendant is entitled to use, as the first
appropriator upon his said land and upon each and every part thereof, three-tenths of all the
water customarily flowing in said Sierra creek; and is entitled to divert the said water from
the said stream upon said land, by means of flumes, ditches, or otherwise, and to use the same
upon his said land for the irrigation thereof; and to use so much of the said three-tenths part
of said stream as is necessary for his stock and domestic purposes.
These findings support the judgment and decree. But it is argued by appellant that the
judgment should have been rendered upon other findings which show that appellant, in 1865,
acquired the title in fee to 320 acres of his land, and that said land is situate upon Sierra creek,
and upon both sides thereof; that respondent is the owner in fee of the land described in his
answer, which is situate upon the same creek, and that he is a riparian proprietor; that upon
these facts the case should have been determined by the principles of the common law in
relation to the rights of riparian proprietors, instead of upon the principle of prior
appropriation; that the doctrine of appropriation and use of the waters of a stream has no
application to a case where the parties, or either of them, have procured the title in fee to their
lands from the government of the United States prior to the act of congress of July 26, 1866,
(Rev. St. U. S. 2339.) It does not appear from the findings when respondent acquired the
fee to his land, and if it should be necessary, in order to support the judgment, that it
should have been acquired prior to the act of congress, we are bound, in the absence of
any finding to the contrary, to presume it was before that time.
19 Nev. 78, 82 (1885) Jones v. Adams
when respondent acquired the fee to his land, and if it should be necessary, in order to support
the judgment, that it should have been acquired prior to the act of congress, we are bound, in
the absence of any finding to the contrary, to presume it was before that time. If that fact was
important, appellant should have asked for a definite finding upon that point. (Warren v.
Quill, 8 Nev. 218.)
If the theory contended for by appellant, that this case should have been decided upon the
principles pertaining to riparian rights should prevail, it would not follow, as claimed by him,
that as a lower proprietor he would be entitled to all the water of the stream. This is not the
law. We had occacion [occasion] in Warren v. Quill, supra, to state that the inference must
not be drawn that, in any case, a riparian proprietor may take all the water of a stream for the
purpose of irrigation, to the detriment of adjoining proprietors; for this is not the rule.
In Vansickle v. Haines, which is relied upon by appellant, the court use this language:
The common law does not, as seems to be claimed, deprive all of the right to use, but, on the
contrary, allows all riparian proprietors to use it in any manner not incompatible with the
rights of others. When it is said that a proprietor has the right to have a stream continue
through his land, it is not intended to be said that he has the right to all the water, for that
would render the stream, which belongs to all the proprietors, of no use to any. What is meant
is that no one can absolutely divert the whole stream, but must use it in such manner as not to
injure those below him. (7 Nev. 286.)
In Union M. & M. Co. v. Ferris, where both parties obtained the title in fee to their lands
prior to the act of congress, the question as to the rights of riparian proprietors on a stream
was elaborately discussed. The defendant claimed that in a hot and arid climate like Nevada
the use of water for irrigation was a natural want; that the upper proprietor on the stream
might consume all the water for the purpose of irrigating his land; and that such use would be
reasonable. The court, in considering this question said: To lay down the arbitrary rule
contended for by the defendant, and say that one proprietor on the stream has so unlimited a
right to the use of the water for irrigation, seems to us an unnecessary destruction of the
rights of other proprietors on the stream, who have an equal need and an equal right."
19 Nev. 78, 83 (1885) Jones v. Adams
the rights of other proprietors on the stream, who have an equal need and an equal right. (2
Saw. 195.)
But the right to use water for the purpose of irrigation was expressly recognized.
Irrigation must be held in this climate to be a proper mode of using water by a riparian
proprietor; the lawful extent of the use depending upon the circumstances of each case. With
reference to these circumstances, the use must be reasonable, and the right must be exercised
so as to do the least possible injury to others. There must be no unreasonable detention or
consumption of the water. That there may be some detention and some diminution, follows
necessarily from any use whatever. How long it may be detained, or how much it may be
diminished, can never be stated as an arbitrary or abstract rule. (2 Saw. 197.)
Under the rules of the common law the riparian proprietors would all have the right to a
reasonable use of the waters of a stream running through their respective lands for the
purpose of irrigation. It is declared in all of the authorities upon this subject that it is
impossible to lay down any precise rule which will be applicable to all cases. The question
must be determined in each case with reference to the size of the stream, the velocity of the
water, the character of the soil, the number of proprietors, the amount of water needed to
irrigate the lands per acre, and a variety of other circumstances and conditions surrounding
each particular case; the true test in all cases being whether the use is of such a character as to
materially affect the equally beneficial use of the waters of the stream by the other
proprietors. In Vansickle v. Haines the court quoted, with approval, the doctrine announced
by Shaw, C. J., in Elliot v. Fitchburg R. Co. 10 Cush. 194: That a portion of the water of a
stream may be used for the purpose of irrigating land we think is well established as one of
the rights of the proprietors of the soil along or through which it passes. Yet a proprietor
cannot, under color of that right, or for the actual purpose of irrigating his own land, wholly
obstruct or divert the water-course, or take such an unreasonable quantity of water or make
such unreasonable use of it, as to deprive other proprietors of the substantial benefits which
they might derive from it, if not diverted or used unreasonably.
Numerous authorities were cited in support of this doctrine.
19 Nev. 78, 84 (1885) Jones v. Adams
(Vansickle v. Haines, 7 Nev. 287; Farrell v. Richards, 30 N. J. Eq. 515.)
When it is said that such use must be made of the water as not to affect the material rights
of other proprietors, it is not meant that there cannot be any diminution or decrease of the
flow of water; for if this should be the rule, then no one could have any valuable use of the
water for irrigation, which must necessarily, in order to be beneficial, be so used as to absorb
more or less of the water diverted for this purpose. The truth is that under the principles of the
common law in relation to riparian rights, if applicable to our circumstances and condition,
there must be allowed to all, of that which is common, a reasonable use.
If the judgment had been based upon the findings in relation to riparian rights, it would,
therefore, have been at least as favorable to respondent as it now is. The court would not have
given either party the right to absolutely divert any portion of the water away from the stream,
nor allowed to either any definite quantity or portion for the purpose of irrigation, but would
have given to each a reasonable use of the water, and determined the question of reasonable
use by the particular facts and circumstances as revealed by the evidence. Under the rules of
the common law the judgment and decree of the court would, perhaps, have to be modified so
as to conform to the views we have expressed. (Union M. & M. Co. v. Ferris, 2 Saw. 199;
Same v. Dangberg, Id. 458-460.)
But did the court err in rendering its judgment upon the rights of the parties, acquired by
appropriation, as set forth in the third and fifth findings? In all of the Pacific coast states and
territories, prior to the passage of the act of congress of July 26, 1866, the doctrines of the
common law, declaratory of the rights of riparian proprietors respecting the use of running
waters, was held to be inapplicable, or applicable only to a very limited extent, to the wants
and necessities of the people, whether engaged in mining, agricultural or other pursuits; and it
was decided that prior appropriation gave the better right to the use of the running waters to
the extent, in quantity and quality, necessary for the uses to which the waters were applied.
This was the universal custom of the coast, sanctioned by the laws and decisions of the courts
in the respective states and territories, and approved and followed by the decisions of the
supreme court of the United States.
19 Nev. 78, 85 (1885) Jones v. Adams
supreme court of the United States. In this condition of affairs, the congress of the United
States, on the twenty-sixth of July, 1866, passed the act granting the right of way to ditch
and canal owners over the public lands, and for other purposes, the ninth section of which
reads as follows: That whenever, by priority of possession, rights to the use of water for
mining, agricultural, manufacturing or other purposes, have vested and accrued, and the same
are recognized and acknowledged by the local customs, laws, and the decisions of courts, the
possessors and owners of such vested rights shall be maintained and protected in the same;
and the right of way for the construction of ditches and canals for the purposes aforesaid is
hereby acknowledged and confirmed; provided, however, that whenever, after the passage of
this act, any person or persons shall, in the construction of any ditch or canal, injure or
damage the possession of any settler on the public domain, the party committing such injury
or damage shall be liable to the party injured for such injury or damage. (14 U. S. Stat. 253;
Rev. Stat. U. S. 2339.)
In construing this section, the court, in Vansickle v. Haines, said: The act of congress of
July, 1866, if it shows anything, shows that no diversion had previously been authorized; for,
if it had, whence the necessity of passing that act, which appears simply to have been adopted
to protect those who at that time were diverting water from its natural channel. Doubtless all
patents issued or titles acquired from the United States since July, 1866, are obtained subject
to the rights existing at that time. But this is a different case; for, if the appellant has any right
to the water, he acquired it by the patent issued to him two years before that time, and with
which, therefore, congress could not interfere. But we do not understand it to be claimed that
the act does directly affect this case, but that it is only referred to as exhibiting the policy of
the general government. The answer is that the policy began with that act, was never in any
way sanctioned or suggested prior to the time of its passage, and therefore has nothing to do
with this case. (7 Nev. 280.)
In Union M. & M. Co. v. Ferris, supra, it was claimed by the defendants that the act of
congress confirmed their rights acquired by priority of appropriation; but the court ignored
this claim and endorsed the doctrines enunciated by the court in Vansickle v. Haines.
19 Nev. 78, 86 (1885) Jones v. Adams
in Vansickle v. Haines. We are of opinion that the ninth section of the act of congress
confirmed to the owners of water-rights on the public lands of the United States the same
rights which they held under the local customs, laws and decisions of the courts prior to its
enactment; that the act of congress did not introduce, and was not intended to introduce, any
new system, or to evince any new or different policy upon the part of the general government;
that it recognized, sanctioned, protected and confirmed the system already established by the
customs, laws and decisions of courts, and provided for its continuance.
We had occasion in Barnes v. Sabron, 10 Nev. 230, to quote with approval the doctrines
announced by the supreme court of the United States in Basey v. Gallagher, that the
government, by its silent acquiescence, had assented to and encouraged the occupation of the
public lands for mining purposes; that he who first connected his labor with the property open
to general exploration, in natural justice acquired a better right to its use and enjoyment than
others who had not given such labor; that the miners on the public lands and throughout the
Pacific states and territories, by their customs, usages, and regulations, had recognized the
inherent justice of this principle, and that it had been recognized by legislation, and enforced
by the courts, and finally approved by the legislation of congress in 1866; that this principle
was equally applicable to the use of water on the public lands for purposes of irrigation; and
we declared that it logically followed, from the legal principles announced in that case, that
the first appropriator of the waters of a stream had the right to insist that the water flowing
therein should, during the irrigating season, be subject to his reasonable use and enjoyment
to the full extent of his original appropriation and beneficial use.
In Basey v. Gallagher, the court, after quoting the ninth section of the act of congress,
said: It is very evident that congress intended, although the language used is not happy, to
recognize as valid the customary law with respect to the use of water which had grown up
among the occupants of public lands under the peculiar necessities of their condition; and that
law may be shown by evidence of the local customs, or by the legislation of the state or
territory, or the decisions of the courts. The union of the three conditions in any particular
case is not essential to the perfection of the right by priority; and in case of conflict
between a local custom and a statutory regulation, the latter, as of superior authority,
must necessarily control."
19 Nev. 78, 87 (1885) Jones v. Adams
case is not essential to the perfection of the right by priority; and in case of conflict between a
local custom and a statutory regulation, the latter, as of superior authority, must necessarily
control. (20 Wall. 683.)
In Jennison v. Kirk, counsel for plaintiff contended that of the two rights mentioned in the
ninth section of the act of congress, only the right to the use of water on the public lands,
acquired by priority of possession, is dependent upon local customs, laws and decisions of the
courts; and that the right of way over such lands for the construction of ditches and canals is
conferred absolutely upon those who have acquired the water-right, and is not subject in its
enjoyment to the local customs, laws and decisions. The court refused to sustain this position.
It said: The object of the section was to give the sanction of the United States, the proprietor
of lands, to possessory rights, which had previously rested solely upon the local customs,
laws and decisions of the courts, and to prevent such rights from being lost on a sale of the
lands. The section is to be read in connection with other provisions of the act of which it is a
part, and in the light of matters of public history relating to the mineral lands of the United
States.
After stating, at considerable length, the history of the discovery of gold in California, the
adoption by the minersin their love of order, system, and fair dealingof rules and
regulations for the government of their property rights; the recognition of the rights, by prior
appropriation, to the water of a stream conveyed away from its natural channel for mining or
other beneficial purposes; the fact that the doctrines of the common law respecting the rights
of riparian owners were not considered as applicable, or only in a very limited degree, to the
condition of the miners; that the waters of rivers and lakes were carried great distances in
ditches and flumes, constructed with vast labor and enormous expenditure of money, along
the sides of mountains, and through canyons and ravines, to supply communities engaged in
mining, as well as for agriculturalists and for ordinary consumption, and giving the views of
the author of the act of congress and interpreting its several sections, the court, speaking of
the ninth section, said: In other words, the United States by the section said that whenever
rights to the use of water by priority of possession had become vested, and were recognized
by the local customs, laws, and decisions of the court, the owners and possessors should
be protected in them;
19 Nev. 78, 88 (1885) Jones v. Adams
and decisions of the court, the owners and possessors should be protected in them; and that
the right of way for ditches and canals, incident to such water-rights, being recognized in the
same manner, should be acknowledged and confirmed; but where ditches subsequently
constructed injured by their construction the possession of others on the public domain, the
owners of such ditches should be liable for the injuries sustained. Any other construction
would be inconsistent with the general purpose of the act, which, as already stated, was to
give the sanction of the government to possessory rights acquired under the local customs,
laws, and decisions of the courts. (98 U. S. 460.)
In Broder v. Natoma Water Co. the court said: It is the established doctrine of this court
that rights of miners, who had taken possession of mines and worked and developed them,
and the rights of persons who had constructed canals and ditches to be used in mining
operations and for purposes of agricultural irrigation in the region where such artificial use of
the water was an absolute necessity, are rights which the government had, by its conduct,
recognized and encouraged, and was bound to protect, before the passage of the act of 1866.
We are of opinion that the section of the act which we have quoted was rather a voluntary
recognition of a pre-existing right of possession, constituting a valid claim to its continued
use, than the establishment of a new one. (101 U. S. 276, and authorities there cited: Coffin
v. Left-hand Ditch Co. 6 Colo. 443; opinion by Ross, J, in Lux v. Haggin, 69 Cal. 255.)
It necessarily follows from the views we have expressed, and from the doctrines
announced in the authorities we have cited, that the court did not err in rendering its judgment
and decree upon the findings in relation to prior appropriation. The case of Vansickle v.
Haines, in so far as the same is in conflict with the views herein expressed, is hereby
overruled.
____________
19 Nev. 89, 89 (1885) Keane v. Murphy
[No. 1188.]
THE STATE OF NEVADA, ex rel. N. C. KEANE, Relator,
v. M. A. MURPHY, DISTRICT JUDGE, etc., Respondent.
MandamusJudicial OfficerPreliminary Questions.The rule that mandamus will not issue to control
discretion, or revise judicial action, has no application to the determination of preliminary questions
relating to the settlement of a statement on motion for new trial.
IdemSettlement of Statement.Mandamus is a proper remedy to compel a district judge to settle a statement
on motion for new trial in a case where it is his duty to settle the statement.
PracticeWritten Notice of Decision of JudgeWhen not WaivedTime to Move for New Trial.In a case
tried before the district court without a jury where the judge announced his decision in open court in the
presence of counsel for the losing party who, at that time, requested the attorney for the opposite party to
add no more costs in entering judgment than he could help, which was assented to: Held, that such acts
and conversations did not amount to a waiver of the right to have a written notice of the rendering of the
decision, as required by section 197 of the practice act, before moving for a new trial.
Application for mandamus.
Wells & Taylor, for Relator:
I. The judgment cannot be entered until the written findings of fact and conclusions of law
are filed in the cause. (Russell v. Armador, 2 Cal. 305; Polhemus v. Carpenter, 42 Cal. 382;
Mulcahy v. Glazier, 51 Cal. 626; People v. Forbes, 51 Cal. 628; Smith v. Lawrence, 53 Cal.
34; James v. Williams, 31 Cal. 211; Hidden v. Jordan, 28 Cal. 301; Lucas v. San Francisco,
28 Cal. 591; Lyon v. Leimback, 29 Cal. 139.)
II. The findings of fact and conclusions of law must precede the entry of the judgment and
support the same. (Russell v. Armador, 2 Cal. 305; Bowers v. Johns, 2 Cal. 419; Headley v.
Reed, 2 Cal. 322; Hoagland v. Clary, 2 Cal. 474; Brown v. Brown, 3 Cal. 111; Breeze v.
Doyle, 19 Cal. 102; McClory v. McClory, 38 Cal. 575; Van Court v. Winterson, 61 Cal. 615;
Bennett v. Pardini, 63 Cal. 155; Warring v. Freear, 64 Cal. 54; Sprick v. Washington, 3 Neb.
253; Stansell v. Cornig, 21 Mich. 242; Squier v. Lowenberg, 1 Idaho, 785.
III. The respondent ought to settle the statement. Mandamus is our only remedy. Appeal
from his order of refusal will not lie. (Liffingwell v. Griffing, 29 Cal. 192; Pendegast v. Knox,
32 Cal. 74; McNeven v. McNeven, 63 Cal. 186; Black v. Sprague, 54 Cal. 256; Lake v. King,
16 Nev. 217; Frazier v. Sup. Ct. 62 Cal. 49; Carpenter v. Thurston, 30 Cal. 123; Ray v.
Beach, 76 N. Y. 166; Valton v. N. L. F. L. A. S., 19 How. Pr. 516; Kelly v. Sheehan, 76 N. Y.
325; N. Y. C. & H. R. R. Co., 60 N. Y. 112; Staring v. Jones, 13 How. Pr. 423; Fry v. Bennett,
7 Abb. 352; Leavy v. Roberts, 8 Abb. 310; Gay v. Gay, 10 Paige, 370; Haack v. Fearing, 4
Abb. (N. S.) 309; Yorks v. Peck, 17 How. 192.]
Crocker, Curler & Bowler, for Respondent:
I. Mandamus is not the proper remedy. The office of mandamus is not to correct error.
(State v. Wright, 4 Nev. 119; People v. Sexton, 24 Cal. 79; People v. Pratt, 28 Cal. 166; High
Ex. Leg. Rem., Sec. 177, 189; Exparte Koon, 1 Denio. 644; High Ex. Leg. Rem., Sec. 156 and
authorities cited in note; Life & F. Ins. Co. v. Adams, 9 Pet. 573.)
II. It is sufficient that the discretion of the judge has been exercised in determining
whether the application for a new trial was or was not made in time, and whether correctly or
erroneously decided, it cannot be questioned or corrected by mandamus. (Exparte Davenport,
6 Pet. 661; Exparte Poultney, 12 Pet. 472; Sturgis v. Joy, 2 Ell. & Bl. 739; Hoole v. Kinkead,
16 Nev. 218.)
III. If relator is entitled to any relief at all, it is by appeal from the order of the district
judge, disregarding the notice of intention to move for a new trial and thereby refusing to
consider it, or to settle the statement--the same being a special order made after the final
judgment entered in said cause. (1 Comp. L. 1391, 3d sub.; Marshall v. Golden F. M. Co., 16
Nev. 172; Gillman v. Contra Costa Co., 8 Cal. 52; Gillman v. Contra Costa Co., 10 Cal.
508; Clarke v. Crane, 57 Cal. 629.)
IV. An objection for want of findings cannot, in the first instance, be taken advantage of
in this court. (1 Comp. L. 1669; Warren v. Quill, 9 Nev. 259; McClusky v. Gerhauser, 2 Nev.
47; Whitmore v. Shiverick, 3 Nev. 289; Smith v. Curtis, 7 Cal. 584; Bostwick v. McCorkle, 22
Cal. 669; Russell v. Dennison, 45 Cal. 337;
son, 45 Cal. 337; Lobdell v. Hall, 3 Nev. 507; Bassett v. Monte C. M. Co., 15 Nev. 301;
Withee v. Brooks, 65 Me. 14.)
V. Relator is not entitled to any relief whatever, by mandamus, appeal, or otherwise, for
the reason that the court committed no error in disregarding relator's notice of intention to
move for a new trial, or the so-called statement in support thereof. Relator had actual notice,
i. e., knowledge of the decision of the judge, more than ten days prior to the giving of the
notice of intention to move for a new trial and the so-called statement filed in support thereof.
Actual knowledge is notice. (Lightstone v. Laurencel, 2 Cal. 106.)
VI. Relator waived the manner of giving notice in this case. (San Fernando F. A. v.
Porter, 58 Cal. 81; Corbett v. Swift, 6 Nev. 194; Hunter v. Truckee Lodge, 14 Nev. 28;
Conkling v. King, 10 N. Y. 446; Coddington v. Davis, 3 Denio. 16; Yates v. Russell, 17
Johns. 461.)
This is an application for a writ of mandate to compel respondent to settle a statement on
motion for new trial in the case of D. D. Murphy v. N. C. Keane et al., wherein judgment was
recovered against defendants for the sum of four hundred and eighty-four dollars and
eighty-nine cents, besides costs. The action was tried by the court without a jury, and after
taking the matter under advisement for several days, the court announced its conclusions
orally in open court, and instructed plaintiff's attorneys to prepare findings accordingly. No
findings were filed, but on the same day judgment was signed and entered for the sum above
stated, besides costs.
At the time of the oral announcement, counsel for defendant, Keane, relator herein, were
in court and heard the conclusions and orders above referred to. Within a half hour thereafter,
one of relator's attorneys requested plaintiff's attorneys to add no more costs in entering the
judgment than they could help, and plaintiff's attorneys consented. No written notice of the
rendering of the decision was given or received, as required by section 197 of the practice act,
but in thirty-five days after the entry of judgment, relator's attorneys, by other means, learned
that such entry had been made, and in forty-four days prepared, and caused to be filed and
served, a proper statement on motion for a new trial, on the grounds of insufficiency of
evidence to justify the decision and judgment of the court, and errors in law occurring at
the trial which were duly excepted to by defendant.
statement on motion for a new trial, on the grounds of insufficiency of evidence to justify the
decision and judgment of the court, and errors in law occurring at the trial which were duly
excepted to by defendant. Counsel for plaintiff proposed amendments which relator refused
to accept; but on the same day, and, we shall presume, at the same time, gave notice to
relator's attorneys that on a subsequent day stated they would move the court to disregard and
decline to consider plaintiff's notice of intention to move for a new trial and the statement
thereon, because they had not been made in time. Thereupon relator, by his attorneys, notified
plaintiff's attorneys that on a subsequent day named the statement and amendments would be
submitted to respondent at his chambers for settlement. On the day named counsel for
plaintiff protested against any settlement of the statement on the ground that no notice of
motion for a new trial had been given within the time required by the statute.
Upon the facts stated above, respondent held that no written notice of the rendering of the
decision was required, and consequently that the notice of intention to move for a new trial
was not given in time. He therefore denied the application to settle the statement.
1. It is urged by counsel for respondent that relator is not entitled to the remedy
soughtfirst, because, upon contested issues of fact and law, respondent arrived at a judicial
determination, and that the office of mandamus is not to correct errors; and, second, because
relator has another plain, speedy, and adequate remedy at law, to-wit: The right of appeal
from respondent's order denying his application for a settlement of the statement. It is firmly
established that mandamus will not issue to control discretion or to revise judicial action.
Where the act to be done is judicial in its character, the writ will not direct in what manner
the inferior court shall act, but only direct it to act. (People v. Weston, 28 Cal. 640; Hoole v.
Kinkead, 16 Nev. 218; State v. Wright, 4 Nev. 119.) But there is a limitation to the above
rule, which is stated by Mr. Hayne as follows: The rule above stated applies only to the act
to be commanded by the writ, and not to the determination of purely preliminary questions. In
every case in which an officer is to take any actionas for example, the auditing of a claim
by a comptroller, its payment by a treasurer, the levying of a tax by municipal authorities,
the execution of a deed by a sheriff, the settlement of a statement or bill of exceptions by
a judge, and the likethe officer must first make up his mind as to whether the conditions
upon which he is to act exist.
tax by municipal authorities, the execution of a deed by a sheriff, the settlement of a
statement or bill of exceptions by a judge, and the likethe officer must first make up his
mind as to whether the conditions upon which he is to act exist. In arriving at his conclusion
he may have to ascertain the meaning of a law, or satisfy himself as to the existence of facts,
or both. Such questions may be of extreme difficulty. The law governing the case may be
obscure and ambiguous, and the facts may depend upon conflicting evidence. But they have
to be determined by the officer in every case, whatever may be the nature of the act to be
performed. In determining them he must, as a matter of course, exercise his judgment, and in
one sense may be said to act judicially. Such questions, however, are distinct from the act to
be performed. They are not what the writ commands, if issued. The writ does not command
the officer to make up his mind as to whether the act is proper to be performed. The court
determines that question before issuing the writ. * * * The question must be determined, in
the first instance, by the officer, before he performs, or refuses to perform, the act, and
afterwards by the court, before the writ can issue. As they must be determined before the act
can be commanded, they are clearly distinct from and preliminary to the act. Now the rule
above stated does not apply to such preliminary questions. If it did, no writ of mandamus
could ever issue, and the machinery provided by the code for trying such questions would be
useless. The distinction above stated applies, not only where the act to be performed is purely
ministerialsuch as the signature of a warrant, the payment of a claim, or the likebut also
where it is judicial in its nature. Thus the settlement of a statement or bill of exceptions by a
judge is a judicial act; but before it is done, the judge must pass upon the preliminary
questions whether the party has a right to have a statement or bill, and if he has, whether the
one presented is in proper form and regularly presentedquestions often calling for the
exercise of nice discrimination, and certainly as much judicial' as any other questions. But it
is well settled that if the judge erroneously refuses to settle the statement or bill, a writ of
mandamus will be awarded to compel the settlement, not in any particular way, but one way
or the other. (Hayne, N. T., sec. 323.)
In State v. Laughlin, 75 Mo. 358, where the inferior court had determined that it had no
jurisdiction, and that another tribunal had exclusive jurisdiction, and for that reason had
declined to proceed to a final disposition of a criminal case, and had ordered it transferred
to the other tribunal for that purpose, upon an application for a mandamus to compel the
inferior court to proceed, the supreme court held that it would inquire into the question of
jurisdiction, and if it existed, would issue the writ.
had determined that it had no jurisdiction, and that another tribunal had exclusive jurisdiction,
and for that reason had declined to proceed to a final disposition of a criminal case, and had
ordered it transferred to the other tribunal for that purpose, upon an application for a
mandamus to compel the inferior court to proceed, the supreme court held that it would
inquire into the question of jurisdiction, and if it existed, would issue the writ. The writ was
issued. (And see State v. Twenty-sixth District Judge, 34 La. Ann. 1177; Floral Springs
Water Co. v. Rives, 14 Nev. 433; Beguhl v. Swan, 39 Cal. 411; In re Milner v. Rhoden, 6
Eng. Law & Eq. 373.)
The questions passed on by respondent were merely preliminary to the settlement of the
statement, and the general rule invoked by his attorneys does not apply to them. Unless there
are other grounds for a denial of the writ, it will be our duty to re-examine the questions
passed on by respondent.
2. Had relator another plain, speedy and adequate remedy in the ordinary course of law? It
is said that he had, because the order denying the application for a settlement of the statement
is appealable. We shall not stop to decide this question. Until the decision in Calderwood v.
Peyser, 42 Cal. 111, wherein it was held that an order striking out a statement was
appealable, the supreme court of California uniformly held that such an order was not
appealable. In Clark v. Crane, 57 Cal. 634, where the judge below denied an application to
settle a statement, the supreme court seems to have held that such an order is appealable. But
the court added: It may be said that where the remedy by appeal is not a speedy and adequate
remedy, the writ of mandate should issue. This was so held in Merced M. Co. v. Fremont, 7
Cal. 130. Then, admitting, for the argument, that the remedy by mandamus is the proper one,
by reason of the fact that the remedy by appeal is not plain, speedy and adequate, does it
follow that the writ must go in such a case as this?
The court then examined the facts, and upon them decided that, in any event, the order of
the court below must be affirmed. Therefore the writ was denied.
It is evident that the supreme court of California does not regard the right of appeal from
an order refusing to settle a statement as necessarily fatal to an application for a writ of
mandate, because, in People v. Crane, 60 Cal. 279, decided two years after Clark v. Crane,
the same court issued a peremptory writ commanding the settlement of a bill of
exceptions, saying that there was no substantial difference between a statement and bill
of exceptions, save as to the time of settlement.
years after Clark v. Crane, the same court issued a peremptory writ commanding the
settlement of a bill of exceptions, saying that there was no substantial difference between a
statement and bill of exceptions, save as to the time of settlement. Mandamus has been and,
we judge, is regarded as the proper remedy in California to compel the settlement of
statements on motion for a new trial. (People v. Lee, 14 Cal. 510; People v. Rosborough, 29
Cal. 416; People v. Keyser, 53 Cal. 184; Lin Tai v. Hewill, 56 Cal. 118; People v. Crane, 60
Cal. 279.)
In State v. Wright this court said: The mere fact that an action or proceeding will lie does
not necessarily supersede the remedy by mandamus. The relator must not only have a
specific, adequate, and legal remedy, but it must be one competent to afford relief upon the
very subject-matter of his application; and if it be doubtful whether such action or proceeding
will afford him a complete remedy, the writ should issue. (10 Nev. 175; and see Babcock v.
Goodrich, 47 Cal. 488.)
In La Grange v. State Treasurer, 24 Mich. 477, it is said: It is the inadequacy, and not the
mere absence, of all other legal remedies, and the danger of a failure of justice without it, that
must usually determine the propriety of this writ. Where none but specific relief will do
justice, specific relief should be granted if practicable. (And see Etheridge v. Hall, 7 Port.
(Ala.) 54.)
Mr. Hayne, in his work on New Trials and Appeal, at page 409, says: In any case an
appeal would involve much more time than an application for mandamus. And in view of the
fact that after it has been determined that the statement ought to have been settled, the party
has still a long litigation before him, it would seem that an appeal for the order refusing the
settlement would not be a plain, speedy, and adequate remedy,' and therefore that, even
where the order is appealable, the party may apply for the writ.
We conclude that mandamus is the proper remedy, and that the writ must issue, if
respondent ought to have settled the statement.
3. It is conceded by counsel for respondent that, ordinarily, when an action is tried by the
court, the party intending to move for a new trial may do so at any time within ten days after
receiving notice in writing of the rendering of the decision of the judge, and that the ten days
do not begin to run until the notice is given.
run until the notice is given. But it is claimed that in this case they began to run on the day
that the court's decision was orally announced in court, and the judgment filed, for the
reasons, as before stated, that counsel for relator heard the oral announcement, and afterwards
requested one of plaintiff's attorneys to add no more costs in entering judgment than he
could help. Respondent held that when a party, against whom a judgment is entered, is
present in court, and requests a favor of the prevailing party in relation to said judgment so
entered, then no written notice is required. That relator might have waived notice we have
no doubt, (Corbett v. Swift, 6 Nev. 195), but we do not think he did so. The legal presumption
of a waiver of any right by a litigant will not be drawn, except in a clear case, and especially
not, when to allow such presumption, would be to deprive a party of his day in court.
(Williams v. Keller, 6 Nev. 141; see, also, Munch v. Williamson, 24 Cal. 167; Johnston v.
Yale, 19 La. Ann. 212; Killip v. Empire Mill Co. 2 Nev. 40.)
It is averred in the petition of relator that the request, to the effect that no more costs be
added in entering judgment than could be helped, was made on the street, and in
conversation relating to her sickness, which made her incapable, at the time, of advising as to
what steps should be taken in the case, and this averment is not denied; but the result would
be the same if it had been made in open court. Certainly there was no express waiver; and
plaintiff's attorney, to whom the request was made, does not claim, in his affidavit, that he
was thereby induced to think that notice was waived, or that he and his associates failed to
give the notice by reason of the request. He says he consented to what was asked, but he
nowhere asserts that he, in fact, did anything, or failed to do anything, that would not have
been done, or left unperformed, if he and relator's attorney had had no conversation.
It is common knowledge among attorneys that items of doubtful legality are oftentimes
inserted in cost bills, saying nothing about such as are absolutely illegal; and many times, in
doing what the law requires, more expense may be made than is necessary. To infer that the
request was intended to include such acts as the law and practice of courts demanded, would
be presuming in favor of a waiver that deprives relator of a legal right. Suppose counsel for
plaintiff had filed their memorandum of costs without verification, we hardly think they
could have justified their action by invoking the waiver now claimed; and yet, had they
done so, they would have saved relator the cost of verification, as in the case in hand he
was saved the expense of filing the notice.
memorandum of costs without verification, we hardly think they could have justified their
action by invoking the waiver now claimed; and yet, had they done so, they would have saved
relator the cost of verification, as in the case in hand he was saved the expense of filing the
notice. If an attorney does his duty, he cannot help doing what the law commands him to do,
in the absence of a plain waiver of a right that can be waived. From the language used by
relator's attorney, respondent had no right to presume that he intended to waive the
performance of any statutory requirement, or that plaintiff's attorney would have been
justified in thinking that they had been waived. It is well settled that, under a statute like ours,
no oral communication is sufficient, and that no presence in court and hearing the decision
announced, satisfies the law. (Fry v. Bennett, 16 How. Pr. 404.)
A party undertaking to limit the time for moving for a new trial or appealing is held to
strict practice. (In re New York C & H. R. R. Co., 60 N. Y. 115.)
In Rankin v. Pine, 4 Abb. Pr. 309, it was held that, in order to limit the right of appeal,
service of written notice upon the party was necessary, even when the appeal is from a
judgment entered by the appellant himself. (And see Staring v. Jones, 13 How. Pr. 423;
Valton v. National Loan Fund L. A. Soc. 19 How. Pr. 517.)
In Biagi v. Howes, 66 Cal. 469, the court said: We are of opinion that the true
construction of the statute (section 659, Code Civil Proc.) is that a party intending to move,
has a right to wait for a notice in writing (section 1010 Code Civil Proc.) of the decision,
from the adverse party, before giving notice of intention to move for a new trial, and that he is
entitled to such notice of decision before he is called on to act, although he is present in court
when the decision is rendered, and waives findings, and asks for a stay of proceedings on the
judgment. This is much the best rule. It is more certain and definite, and prevents
controversies which under any other construction would be likely to arise, and above all,
accords, in our opinion, with the intention of those enacting the statute. (Carpentier v.
Thurston, 30 Cal. 125; Roussin v. Stewart, 33 Cal. 210; Sawyer v. San Francisco, 50 Cal.
375.)
Mandate ordered.
____________
19 Nev. 98, 98 (1885) White Pine County Bank v. Sadler
[No. 1203.]
WHITE PINE COUNTY BANK, Respondent, v. R. SADLER,
Appellant.
PleadingsCommon Counts in AssumpsitMoney Had and Received.In all cases where there is nothing
remaining to be done except the payment of money by the defendant, the plaintiff may declare generally
upon the common counts; and the facts which create the indebtedness or liability need not, in order to
sustain the count of money had and received, be stated in the complaint.
IdemDemand.If the defendant has money in his hands which it is his duty to pay over to plaintiff without
demand, no demand before suit is necessary.
IdemInterest of PlaintiffWhen Sufficient to Maintain Action.One Leyshon assigned a certain judgment to
the defendant, Sadler, with instructions to collect the money due thereon, and after paying certain
demands to pay the balance to one Garber. Leyshon, thereafter, gave an order to the plaintiff upon Garber
for this balance, which order was accepted. Defendant had a balance which he failed to pay over to
Garber: Held, that the fact that the plaintiff had received an order upon Garber for this money created
such an interest therein as entitled it to bring and maintain this action.
Henry K. Mitchell, for Appellant:
I. There is no contract express or implied between plaintiff and defendant; neither is there
any privity of contract.
The general rule of law is that there must be a privity of contract between plaintiff and
defendant in order to render the defendant liable in an action by the plaintiff on the contract.
The facts charged in the complaint do not bring plaintiff within any of the stated exceptions to
this rule. (Chit. on Pl. 4, et seq., note n. n.; 1 Whar. on Con. 506, 784; National Bank v.
Grand Lodge, 98 U. S. 123; Vrooman v. Turner, 69 N. Y. 280; Mellen v. Whipple, 1 Gray,
321; Willard v. Baldwin, 3 Gray, 484; Treat v. Stanton, 14 Conn. 445; Morrison v. Beckey, 6
Watts, 349; Carr v. National S. B., 107 Mass. 45; Exchange Bank v. Rice, 107 Mass. 41.)
II. The count for money had and received is totally insufficient. There is not any demand
alleged. A demand is essential.
essential. (Reina v. Cross, 6 Cal. 31; Greenfield v. Grinnell, 6 Cal. 68; Walrath v. Thompson,
6 Hill. 540; Downes v. Phoenix Bk., 6 Hill. 297.)
III. To entitle the plaintiff to recover in this action it should appear by the complaint, first,
that an intent existed in the mind of Sadler to secure some benefit to plaintiff; second, that
some privity existed between Sadler and the plaintiff; third, that some obligation or duty was
owing from Sadler to the plaintiff, which would give to plaintiff a legal or equitable claim to
the benefit of the promisee or an equivalent from him personally. (Vrooman v. Turner, 69 N.
Y. 283.)
I. The second count of the complaint states a cause of action, being a count for money had
and received. (1 Est. Pl. 464; Wells v. American Ex. Co., 49 Wis. 224; Casussidiere v. Beers,
2 Keyes, 198.)
II. The complaint containing two counts, and the demurrer being general and going to the
whole complaint, and, if we have shown that the second count states a cause of action, then
the demurrer was properly overruled. (Whiting v. Heslep, 4 Cal. 327; Weaver v. Conger, 10
Cal. 234; Griffiths v. Henderson, 49 Cal. 566; Bliss on Code Pl., Sec. 417.)
III. No demand was necessary under the facts of this case. (Stacey v. Graham, 14 N. Y.
492.)
By the Court, Hawley, J:
The appeal in this case, there being no assignment of errors specified in the statement on
motion for new trial, presents but one question for our consideration, viz., does the amended
complaint state facts sufficient to constitute a cause of action? The action is for money had
and received. There are two counts in the complaint. The first alleges, in substance, that one
W. T. Leyshon was indebted to plaintiff in the sum of $2,500; that said Leyshon obtained a
judgment against the Albion Con. M. Co. for $2,600; that Leyshon was indebted to
defendant, Sadler, and others; that in order to secure the payment of his indebtedness to the
defendant, to P. N. Hansen, and to E. R. Garber, he assigned his judgment against the Albion
Company to the defendant, with instructions to collect the said judgment and retain his
own demand, amounting to the sum of five hundred dollars or thereabouts, to pay the
claim of P. N. Hansen, above mentioned, and to deliver to E. R. Garber, the attorney of the
said W. T. Leyshon, the balance of the money derived from the said judgment;"
lect the said judgment and retain his own demand, amounting to the sum of five hundred
dollars or thereabouts, to pay the claim of P. N. Hansen, above mentioned, and to deliver to
E. R. Garber, the attorney of the said W. T. Leyshon, the balance of the money derived from
the said judgment; that the defendant sold and assigned the judgment to Prentiss Selby for
$2,600; that after paying all demands which he was instructed and authorized to pay out of
the same, there remained in the defendant's hands the sum of $1,591 belonging to Leyshon,
which should have been delivered to E. R. Garber, under and by virtue of the arrangement
between Sadler and Leyshon; that Leyshon, for the purpose of paying his indebtedness to the
plaintiff, made and delivered to plaintiff an order upon E. R. Garber, for the money coming
into his hands from the defendant, which order was accepted by Garber, he agreeing, in
writing, to perform the request mentioned in the order, provided he received the money from
Sadler; that the defendant had notice that this money had been assigned to plaintiff, and
knew of the existence of said order, and that all money in his hands was assigned and
transferred to this plaintiff by virtue thereof; that the amount due Garber from Leyshon was
$250, which the defendant paid; that Garber had no further interest in said fund, and was to
receive the balance from the defendant, as the agent of said Leyshon, to pay it over to the
plaintiff; that the defendant, although often requested, has failed, neglected, and refused to
pay said money to Garber in accordance with the agreement between him and Leyshon, and
refuses to pay the same, or any part thereof, to plaintiff.
The second count alleges that upon the twentieth day of May, 1883, the defendant had
and received from Prentiss Selby the sum of fifteen hundred and ninety-one dollars, for the
use of, and to be paid over to, this plaintiff; that the defendant, although often requested, his
hitherto failed, neglected and refused, and does still refuse, to pay the same, or any part
thereof, and the same is now wholly due and payable, wherefore the plaintiff demands
judgment. * * *
The objections urged by appellant against the second count of the complaint, that the
words for the use of only state a conclusion of law, and that no demand is alleged, cannot
be sustained. In determining whether the complaint state facts sufficient to constitute a cause
or action, we are not required to consider whether any objections to the form of the
complaint might have been raised and held good upon special demurrer.
consider whether any objections to the form of the complaint might have been raised and held
good upon special demurrer.
Mr. Chitty says: The form of this count is extremely simple; it is merely stating that the
defendant is indebted to the plaintiff in a certain sum for money had and received by the
defendant, to and for the use of the plaintiff. (1 Chit. Pl., 16th Amer. Ed. 362.)
Such is substantially the form generally used, and is sufficient. (2 Chit. Cont., 11th Amer.
Ed., 899; 1 Abb. Pr. & Pl. 173; 1 Estee's Pr. & Pl., 2d Ed., 349.)
In all cases where there is nothing remaining to be done except the payment of money by
the defendant, the plaintiff may declare generally upon the common counts; and the facts
which create the indebtedness or liability need not, in order to sustain this count, be stated in
the complaint, (Grannis v. Hooker, 29 Wis. 67; 2 Greenl. Ev. sec. 104,) although in a case
like the one under consideration it is certainly proper, and the better practice, to set forth the
facts in detail in one count, as was done in this case, so as to advise the defendant of the
particular facts relied upon to maintain the action. It is usual, in the common count for money
had and received, to allege a specific demand for the money. But if the defendant has money
in his hands, which it is his duty to pay over to plaintiff without demand, no demand before
suit is necessary. (Rosendorf v. Mandel, 18 Nev. 129, and authorities there cited.) Upon the
facts stated in the first count it became the duty of the defendant to pay over the balance of
the money obtained upon the Albion judgment, after deducting his own and Hansen's
demands from the amount received, to E. R. Garber, without any demand being made upon
him so to do.
The language of the court in Stacey v. Graham upon this point is directly applicable to this
case: Upon these facts no demand was necessary in order to maintain the action. The
defendant received the fund under a positive duty to remit, and having violated that duty he
became immediately liable. He may not have known that the remittance was to be made
ultimately on account of the plaintiffs, and, it may be, he had never heard of them. This can
make no difference. He was not, in any point of view, to hold the money until called for, but
was to send it forward. It is no answer to an action of this character that a demand has not
been made, unless there is something in the agreement under which the money was
received, or in the circumstances attending the deposit, implying a right or duty to hold it
until actually called for by the owner."
something in the agreement under which the money was received, or in the circumstances
attending the deposit, implying a right or duty to hold it until actually called for by the
owner. (14 N. Y. 497.)
The second count is sufficient to sustain this cause of action. If, as stated in the first count,
the defendant had any money which it was his duty to pay over to Garber, the fact that the
plaintiff had received an order upon Garber for this money created such an interest therein as
entitled it to bring and maintain this action. Wharton says: When money is received by one
party to another's use in such a way that a contractual relation may be assumed to exist
between them * * * an action for money had and received may, at common law, be
maintained by the party for whose benefit the money should be held against the party holding
the money. * * * Lord Mansfield, in a famous judgment, (Moses v. Macferlan, 2 Burr. 1005),
speaks of a suit for money had and received as a kind of equitable action;' and though in
England this was once regarded as going too far, yet in this country, in part from the
convenience of the procedure, in part in some jurisdictions from lack of a distinctive court of
chancery, Lord Mansfield's opinion has been accepted in many jurisdictions, and liability
maintained for money had and received in all cases in which equity would hold a party
responsible for money which he ought rightfully to pay another. And even in England the
preponderance of opinion is in conformity with the views of Lord Mansfield that, where
money is due ex aequo et bono, it may be recovered in an action for money had and
received.' (2 Whar. Cont. Sec. 722.)
The evidence to show such a state of facts may be introduced under the common count for
money had and received. (2 Greenl. Ev. Sec. 117.)
It is true, as a general rule, that it must appear from the facts alleged in the complaint that
there is a privity of contract between the plaintiff and defendant in order to render the
defendant liable on the contract; but there are several exceptions to this rule, one of which is
clearly applicable to this case.
In Mellen v. Whipple, cited by appellant, the court said: Indebitatus assumpsit for money
had and received can be maintained in various instances, where there is no actual privity of
contract between the plaintiff and defendant, and where the consideration does not move
from the plaintiff.
consideration does not move from the plaintiff. In some actions of this kind a recovery has
been had where the promise was to a third person for the benefit of the plaintiff; such action
being an equitable one, that can be supported by showing that the defendant has in his hands
money, which, in equity and good conscience, belongs to the plaintiff, without showing a
direct consideration moving from him, or a privity of contract between him and the
defendant. (1 Gray, 322.)
There are numerous authorities which declare that, in order to support an action of this
character, there need be no privity of contract, except that which results from one man's
having another's money which he has no right to keep; and that in all such cases the law
implies a promise that he will pay it over. (Mason v. Waite, 17 Mass. 563; Caussidiere v.
Beers, 2 Keyes 200; Kreutz v. Livingston, 15 Cal. 346; Wells v. American Exp. Co., 49 Wis.
229; Lockwood v. Kelsea, 41 N. H. 185; Knapp v. Hobbs, 50 N. H. 478; Eagle Bank v. Smith,
5 Conn. 75; Wiseman v. Lyman, 7 Mass. 288; Tutt v. Ide, 3 Blatchf. 249; Harper v. Claxton,
62 Ala. 46; Bahnsen v. Clemmons, 79 N. C. 556.)
____________
19 Nev. 103, 103 (1885) Thompson v. Lake
[No. 1186.]
WILLIAM THOMPSON, Respondent, v. RENO SAVINGS
BANK, et al., M. C. LAKE, Appellant.
Corporation of BankUnpaid SubscriptionsTrust Fund.The unpaid subscriptions to the capital stock of a
bank corporation is a trust fund for the benefit of the general creditors of the corporation.
IdemCertificate of IncorporationWhen Stockholders Cannot Contradict the CertificateEstoppel.The
certificate of incorporation is made for the benefit of the public, not for the corporation or its
stockholders. Those who participated in the incorporation and by a certificate, made in pursuance of the
statute, announced the amount of its capital stock, cannot, as against the creditors of the corporation,
contradict their own certificate.
IdemSecret Arrangements of Stockholders Void Against Creditors.Any secret arrangement between the
corporation and its stockholders by which the responsibility of the stockholders is made less than it
appears to be under the articles of incorporation, is void as against creditors.
IdemSubscription to StockWhen it Cannot be Denied.A party who signs the certificate of incorporation
as that of a subscriber to shares of its stock and permits his name to remain in the certificate cannot
afterwards, as against creditors, deny such subscription.
IdemStockholder Also CreditorUnpaid SubscriptionSet Off Not Allowed.A stockholder who is a
creditor of the corporation cannot offset his unpaid subscription as against the general indebtedness of the
corporation.
IdemCollateral Securities Held by StockholdersRight of Creditor to Participate in Trust Fund.Where the
indebtedness of the corporation to a stockholder is collaterally secured; Held, that the stockholder must
pay the amount of his unpaid subscription and surrender the collateral secureties [securities] and that he
could then participate in the fund ratably with the other creditors.
IdemParties Defendant.In a suit brought to subject the equitable assets of the corporation to the claim of the
creditors it is not necessary to make all the stockholders defendants. Any individual stockholder may be
sued for the amount of his unpaid subscription and if he is required to pay more than his proportionate
share of the debts of the corporation his remedy is against the other stockholders owing unpaid
subscriptions.
IdemParties Plaintiff.When there are many persons having a common interest, one or more may sue for the
benefit of all, and those who come in and establish their claims share with the plaintiff in the benefits of
the decree.
IdemNotice to Creditors.The creditor who commences the action in behalf of himself, and all others who
may come in and establish their debts, is not required to give notice to the other creditors or to get their
consent to the bringing of the suit.
Robert M. Clarke and Trenmor Coffin, for Appellants:
I. This action cannot be maintained by Thompson alone without uniting the other creditors
of the bank. (Barb. on Par. 431, 453; Sto. Eq. Pl. Secs. 72, 76c, 99, 126; Thomp. on Liab. of
Stock. Secs. 258, 349, 351, 361; Hallett v. Hallett, 2 Paige 15; Dias v. Bouchaud, 10 Paige
445; United States v. Parrott, McAll. 271; Morgan v. N. Y. R. R. Co., 10 Paige 290; Coleman
v. White, 14 Wis. 700; Crease v. Babcock, 10 Met. 525; Umstead v. Buskirk, 17 Ohio St. 113;
Smith v. Huckabee, 53 Ala. 191; Sawyer v. Hoag, 17 Wall. 620; Bush v. Cartwright, 7 Or.
329; Faull v. The Alaska Mg. Co., 8 Saw. 420; Patterson v. Lynde, 106 U. S. 519.)
The only creditors named are Thompson, plaintiff, and Lake, the defendant, although it is
pleaded and admitted that there are other creditors. Such other creditors are not made parties
by the amendment made at the trial, to the effect that the action is brought in behalf of all
who are entitled to come in and seek relief.
by the amendment made at the trial, to the effect that the action is brought in behalf of all who
are entitled to come in and seek relief. Such an amendment in no sense has the effect to make
them parties or bring them before the court. (Ad. Eq. 312; Verplank v. Mer. Ins. Co., 2 Paige
438; Elmendorf v. Delancey, Hop. Ch. 555; Lucus v. Bank of Darien, 2 Stew. 280; Green v.
McKinney, 6 J. J. Marsh. 193; Cary v. Hillhouse, 5 Ga. 251; Huston v. McClarty, 3 Litt. 274;
DeWolf v. Mallett, 3 Dana. 214.)
The civil practice act of this State regulates and governs all proceedings in the courts of
this state, whether at law or in equity. Generally the complaint must state the names of all the
parties, both plaintiff and defendant. (Civ. Pr. Act, Sec's 1, 17, 24, 29, 39; 1 Comp. Laws,
1064, 1080, 1092, 1102.)
II. This action cannot be maintained against Lake alone, he being one of several
stockholders. All the stockholders should be joined as defendants in one suit, and the
proceedings should be under the statute. (Thomp. on Liab of Stock., secs. 258, 259, 361;
Smith v. Huckabee, 53 Ala. 191; Matthews v. Albert, 24 Md. 532; Erickson v. Nesmith, 46 N.
H. 371; Hadley v. Russell, 40 N. H. 109; Masters v. Rossie Lead M. Co., 2 Sandf. Ch. 301;
Thayer v. Union T. Co., 4 Gray 75; Man v. Pentz, 3 N. Y. 415; Pierce v. Milwaukee Co., 38
Wis. 253; Adler v. Milwaukee B. Co., 13 Wis. 57; Coleman v. White, 14 Wis. 700; Umstead
v. Buskirk, 17 Ohio St. 118.)
This is not the case of a several, independent and specific promise to pay the sum of
money involved unconditionally. The promise, if any, is to pay in the manner the statute
provides; that is to say, in installments, upon call of the trustees, and after due notice. (2
Comp. L. sec. 3398; Faull v. The Alaska Mg. Co., 8 Saw. 420; McKelvey v. Crockett, 18 Nev.
238.)
If the bank refused to make the call, a court of law would compel it to be made. (Thomp.
Liab. of Stock. sec. 15.)
Or in a proper case a court of equity would make it. (Adler v. Pat. Brick M. Co., 13 Wis.
62; Ward v. Griswoldvilte M. Co., 16 Conn. 601; Ogilvie v. Knox I. Co., 2 Black 539;
Schaffer v. Lehman, 56 Ga. 191.)
III. The proofs do not establish a subscription by Lake for any sum except seven thousand
five hundred dollars, and this sum he has fully paid.
The proofs show: That there was no written agreement of subscription for any sum. The
by-laws of the corporation provide that all stock not paid for at the time the bank commenced
business shall belong to the corporation and may be disposed of by the trustees.
The signing of the certificate of incorporation by Lake as a trustee for the first six months
does not prove Lake a subscriber for twenty-five shares of the stock, or for any number of
shares. This was but the act by which the corporation was created and did not constitute a
subscription. The fact that Lake acted as a trustee and officer of the corporation did not make
him a subscriber for twenty-five shares or for any shares of the stock. To authorize Lake to
act as a trustee for the first six months it was not necessary that he should be a stockholder. (1
Comp. Laws, 3390.)
Lake's participation in the profits of the business of the bank is not evidence of his promise
to pay to the bank any sum of money whatever. To be valid a subscription to the capital stock
of a corporation must be in writing. (Thomp. on Liab. of Stock. Sec. 108; Pittsburg &
Stubenville R. R. Co. v. Gazzam, 32 Pa. St. 340; Vreeland v. Stone, 29 N. J. Eq. 191; Thames
Tunnel Co. v. Sheldon, 6 Barn & Cres. 161.)
IV. Whatever may be said as to the effect of the facts discussed by way of estoppel, they
have not the slightest force or application here. An estoppel proceeds upon the theory that no
agreement was made, but that Lake did or said something, which to permit him to deny would
operate as a fraud upon Thompson. (Davis v. Davis, 26 Cal. 23; Bowman v. Cudworth, 31
Cal. 148; Moyes v. Griffith, 35 Cal. 558; Martin v. Zellerbach, 38 Cal. 300.)
V. The demand of Thompson is a debt of the bank. Lake is not indebted to the bank in the
ordinary sense, nor upon any specific agreement, nor for any sum certain. His liability in the
case stated is for assessments and not for money promised or due. The remedy of the
corporation is to levy its assessments, make its call and give notice thereof, and in default of
payment to sell the stock in the manner provided by statute. (2 Comp. L. 3398; McKelvey v.
Crockett, 18 Nev. 238.)
Not being indebted to the corporation upon any contract to pay, his liability, if any, is that
of a stockholder merely, but this liability is to pay assessments when levied or suffer the loss
of his stock.
his stock. (2 Comp. L. 3398; Andover Turnpike Co. v. Gould, 6 Mass. 40; 4 Am. Dec. 80;
New Bedford Toll Co v. Adams, 8 Mass. 138; 5 Am. Dec., 81; Mechanics Foundry Co. v.
Hall, 121 Mass. 272; Small v. Herkimer Mg. Co., 2 N. Y. 330; Renselaer v. Barton, 16 N. Y.
457, 460; Ladd v. Cartwright, 7 Or. 329; Patterson v. Lynde, 106 U. S. 519.)
VI. Should the court find Lake to be a subscriber as alleged in the complaint and hold this
action rightly brought, nevertheless Lake is entitled to have his judgment against the bank set
off in this action against any claim that the bank may have against him for any unpaid stock
subscriptions. (Thomp. Liab. of Stock., Secs. 380-1; Briggs v. Penniman, 8 Cow. 390; 18
Am. Dec., 454; Sackett's Harbor Bank v. Blake, 3 Rich. Eq. (S. C.) 225, 234; Bank of P. v.
Ibbotson, 24 Wend. 479; Tallmadge v. Fishkill Co., 4 Barb. 389: Robinson v. Bank of D., 18
Ga. 65, 109; Jones v. Weltberger, 42 Ga. 575; Boyd v. Hall, 56 Ga. 563; Garrison v. Howe,
17 N. Y. 461; Empire City Bank, 18 N. Y. 227; Weeks v. Love, 50 N. Y. 569; Mathez v.
Neidig, 72 N. Y. 103; Grose v. Hilt, 36 Me. 22; Larrabee v. Baldwin, 35 Cal. 155.)
Stone & Hiles and R. H. Lindsay for Respondent:
I. The court did not err in admitting the evidence oral and documentary offered by
respondent to show appellant, Lake, to be a subscriber for twenty-five shares of stock, and
that he had not paid the whole amount of his subscription. If any errors occurred in the
various rulings of the court they did not affect the substantial rights in the suit of appellants,
and if corrected the result of such trial would not be changed. (Phipps v. Hully, 18 Nev. 135;
Comp. Laws, 3390, 3393, 3404; Chub v. Upton, 95 U. S. 669; Thomp. on Stock., Sec. 177;
Hoagland v. Bell, 36 Barb. 58; Highland Turnpike Co. v. McKean, 10 Johns 153; State v.
Leete, 16 Nev. 243; Turnbull v. Payson, 95 U. S. 421; Graff v. Pittsburg R. R. Co., 31 Pa. St.
495; Weber v. Fickey, 52 Md. 500; Wheeler v. Millar, 90 N. Y. 357; Griswold v. Seligman,
72 Mo. 110.)
II. Lake was conclusively presumed to know the contents of all the books of the bank
admitted in evidence, and his pretended want of notice or knowledge of their contents, and of
the advertisements in the newspapers, was not sufficient to warrant their exclusion as
evidence to establish his liability as a stockholder of the bank.
warrant their exclusion as evidence to establish his liability as a stockholder of the bank.
(First N. B. v. Drake, 29 Kan. 325; Bank v. Wulfekuhler, 19 Kan. 64; Bank v. Rudolf, 5 Neb.
527; United Society of Shakers v. Underwood, 9 Bush. 621; Martin v. Webb, 110 U. S. 7;
Bank v. Dandridge, 12 Wheat. 64; Morse on Banking, 115; Thomp. on Stock., Sec. 177;
Hoagland, T. C., v. McKean, 10 Johns 153; Turnbull v. Payson, 95 U. S. 421; Weber v.
Fickey, 52 Md. 500; Wheeler v. Millar, 90 N. Y. 359.)
III. The court did not err in excluding the evidence offered by Lake, to show a parol
agreement with the other stockholders, to the effect that he was to pay for his interest in the
bank stock the sum of $7,500 only. Such pretended agreement set forth in his answer was, if
made, a fraud on the creditors of the bank. (Thomp. on Stock., Secs. 122, 123, 124, 129. 200,
201; Robinson v. Pittsburg R. R. Co., 32 Pa. St. 334; White Mountain R. R. Co. v. Eastman,
34 N. H. 124; Mann v. Cooke, 20 Conn. 178; Graff v. Pittsburg R. R. Co., 31 Pa. St. 493;
Union M. L. Co. v. Friar Stone Co., 97 Ills. 557; Noble v. Callender, 20 Ohio St. 199; Clarke
v. Thomas, 34 Ohio St. 46; Henry v. Vermillion R. R., 17 Ohio 187; Hawley v. Upton, 102 U.
S. 316; Morgan Co. v. Allen, 103 U. S. 508; Griswold v. Seligman, 72 Mo. 110; Upton v.
Triblecock, 1 Otto. 45; Sawyer v. Hoag, 17 Wall. 610; Sanger v. Upton, 1 Otto 60; Webster
v. Upton, Ib. 65; Com. v. Davenger, 10 Phil. 479.)
IV. It was not necessary that appellant, Lake, should make a written subscription for stock
of the concern in order to make him liable to its creditors as a stockholder. The statute of
frauds cannot be urged as a defense to this suit, in which it clearly appears that appellant
made a part payment for the stock, received and appropriated to his own use dividends on
twenty-five shares of the stock, and acted as a trustee and president of the board of trustees
from the time of the opening of the bank until it closed its doors. (1 Comp. Laws, 287, 290;
Comp. Laws, 3393, 3404; Brown on Stat. Fr., 341; Artcher v. Zeh, 5 Hill. 204; Hidden v.
Jordan, 21 Cal. 100.)
V. This action can be maintained by plaintiff alone, or with the amendment to his
complaint, in his own behalf, and in behalf of all other creditors who might elect to come in
before or after the decree and participate in the benefits of the suit. It was not necessary in
order to prosecute it to judgment that the other creditors should be made formal parties and
served with summons or other notice.
the other creditors should be made formal parties and served with summons or other notice.
(Bartlett v. Drew, 57 N. Y. 587; Hastings v. Drew, 76 N. Y. 9; Wheeler v. Millar, 90 N. Y.
361; Marsh v. Burrows, 1 Wood, 468; Allen v. Montgomery R. R., 11 Ala. 437; Wood v.
Dummer, 3 Mason, 308; Ogilvie v. Knox I. Co., 22 How. 382; Harmon v. Page, 62 Cal. 448;
Story's Eq. Pl. Secs. 99, 119; Norris v. Johnson, 34 Md. 490; Thomp. on Stock. Sec. 351 and
cases cited; Hatch v. Dana, 101 U. S. 210; Holmes v. Sherwood, 3 McCrary, 405; 16 Fed.
Rep. 726; Hallett v. Hallett, 2 Paige, 19; Smith v. Swormstedt, 16 How. 302; 1 Dan. Ch. Pl.
and Pr. 190, 238, 239, 240, 245; Pom. on Rem. Secs. 389, 391, 394.)
VI. It is not necessary that all the stockholders should be made defendants in the suit.
Their liability for the amount of their unpaid subscriptions to the capital stock is a several and
not a joint liability, and any one or all of them may be proceded against by a creditor or
creditors to enforce such liability. (Hatch v. Dana, 101 U. S. 210; Ogilvie v. Knox I. Co., 22
How. 380; Bartlett v. Drew, 57 N. Y., 587; Pierce v. Milwaukee C. Co. 38 Wis. 253; Marsh
v. Burrows, 1 Wood, 468; Wood v. Dummer, 3 Mason, 308; Story's Eq. Pld. Sec. 119;
Rettebone v. McGrew, 6 Mich., 441; Wheeler v. Miller, 90 N. Y. 361; Holmes v. Sherwood, 3
McCrary, 405.
VII. The remedy by calls or assessments is not the only remedy which the creditor of the
insolvent bank has to compel the stockholder to pay his unpaid subscription. He has a remedy
in equity to compel such payment, and the call or assessment was properly made by the
district court for the benefit of the creditor. The evidence contained in the record shows a
contract either express or implied to subscribe for that number of shares. (Harmon v. Page,
62 Cal. 448; Henry v. Vermillion R. R., 17 Ohio, 189; Haskins v. Harding, 2 Dill., 106; Hatch
v. Dana, 101 U. S. 205; Instone v. Frankfort B. Co., 2 Bibb, 576; Scoville v. Thayer, 105 U.
S., 155; Thomp. on Stock., Sec. 15; Ward v. Griswoldville M. Co., 16 Conn. 598; Mann v.
Cooke, 20 Conn. 178; Holmes v. Sherwood, 16 Fed. Reporter, 729, 3 McCrary, 405; Chubb v.
Upton, 95 U. S. 669; Wheeler v. Millar, 90 N. Y. 357; Griswold v. Seligman, 72 Mo. 110.)
VIII. The court did not err in refusing to allow appellant, Lake, to set off his judgment
against the bank against his unpaid stock subscription.
paid stock subscription. His unpaid subscription was a trust fund, and after the insolvency of
the bank the right of set off did not exist as against its creditors. (Sawyer v. Hoag, 17 Wall,
610; Seammon v. Kimball, 92 U. S. 366; Morgan Co. v. Allen, 103 U. S. 508; Scoville v.
Thayer, 105 U. S. 152; Lawrence v. Nelson, 21 N. Y. 166; Empire City Bank, 18 N. Y. 227;
Smith v. Huckabie, 53 Ala. 195; Mannville v. Krast, 5 McCrary, 142; 16 Fed. Rep. 173;
Singer v. Given, 61 Iowa, 93; Thomp. on Stock., Secs. 381, 389.)
IX. The court properly refused to allow the set off claimed by Lake and to permit him
under the decree to participate pro rata in the distribution of the fund which he was required
to pay into court. (Corbitt v. Woodward, 5 Saw. 417; Koehler v. Black River Co., 2 Black, U.
S. 720; Drury v. Cross, 7 Wall, 302; Butts v. Wood, 38 Barb. 188; Curran v. Ark., 15 How.,
U. S. 304; Bradley v. Farwell, 1 Holmes, 437.)
The Reno Savings Bank is a corporation organized under the laws of this state for banking
purposes. It was engaged in the business of banking from its organization, in the month of
April, 1876, until the twenty-fourth day of June, 1880, when it became involved and
suspended business. It was then indebted to plaintiff Thompson and many others, some of
whom, for convenience, assigned their demands to him. Thompson recovered judgment
against the bank. An execution issued upon the judgment was returned nulla bona, and
thereupon Thompson brought this suit in equity against the bank and Lake, averring, among
other things, the recovery of the judgment; that the bank had no assets subject to execution;
that Lake was indebted to the bank in the sum of seventeen thousand five hundred dollars
upon his unpaid subscription to its capital stock; and prayed that this amount be applied to the
payment of the judgment. The suit was brought in the first place by Thompson for himself
alone. At the commencement of the trial the complaint was amended so that all other
creditors who would contribute to the expense of the suit could come in as parties and seek
relief with the plaintiff. A decree was rendered in favor of plaintiff. From the decree, and an
order overruling a motion for a new trial, this appeal is taken.
The certificate of incorporation of the bank fixes its capital stock at one hundred thousand
dollars, divided into one hundred shares of the par value of one thousand dollars each. The
bank commenced business with the sum of thirty thousand dollars, of which defendant Lake
paid seven thousand five hundred dollars. Lake claims that he is not liable, because this sum
was not paid as a subscription to capital stock, but as a capital upon which the bank was to
carry on its business, and avers that it was agreed among those who paid the money that it
should be in full of all liability as to them.
The capital stock of a corporation, other than a mining corporation, is the amount of
money paid or promised to be paid for the purposes of the corporation. It is a fixed sum, not
to be increased or diminished except in the mode permitted by the statute. This sum the law
requires shall be stated in the certificate of incorporation, to be filed with the county clerk of
the county in which the principal place of business of the corporation is situated, and a copy
in the office of the secretary of state. The purpose of this requirement is obvious.
The shareholders are not, under the constitution, liable for the debts of the corporation.
The capital stock, and especially the unpaid subscriptions thereto, is a trust fund for the
benefit of the general creditors. When, therefore, the law requires a public declaration of the
amount of the capital upon which a corporation operates, it contemplates a truthful statement
in which the general public dealing with the corporation may confide. The certificate is made
for the benefit of the public, not for the corporation or its stockholders. Those who
participated in the incorporation of this bank, and, by a certificate made in pursuance of the
statute, announced the amount of its capital stock, cannot, as against the creditors of the
corporation, contradict their own certificate. Defendant Lake signed it, was president and one
of the directors of the bank, participated in the management of its affairs during the period it
was engaged in business, and received dividends upon his investment. He cannot now be
heard to deny the truth of the certificate which he helped make, and to assert that the capital
of the corporation was thirty thousand dollars instead of one hundred thousand dollars. Not
only will equity refuse to hear the defense interposed, but the arrangement alleged to have
been made is in defiance of the statute under which the bank was incorporated.
been made is in defiance of the statute under which the bank was incorporated.
Section 3543 of the compiled laws provide: It shall not be lawful for the directors to
divide, withdraw, or in any way pay to the stockholders, or any of them, any part of the
capital stock, nor to reduce the amount of the same. Other provisions of the laws upon the
subject of corporations permit an increase or diminution of capital stock. Whether the
provision concerning a reduction applies to corporations of the character of defendant it is
unnecessary to inquire, since it is not pretended in this case that any reduction was made in
compliance with law. The statute requires that any change in the amount of capital stock shall
be made at a stockholders' meeting called for that purpose, upon notice specifying the object
of the meeting and the proposed changes, which notice shall be published for eight weeks in a
newspaper of the county in which the principal place of business of the corporation is located.
(2 Comp. Laws, 3401, 3406-3408, 3544.)
The publicity required in this proceeding is for the purposein part, at leastof advising
the public, dealing with the corporation, of the proposed change. The requirement of the
statutefirst, that the publicly recorded certificate of incorporation shall state the amount of
the capital stock; and, second, that any change in the amount thereof shall only be made after
extended public noticeis in direct conflict with the secret contrivance alleged to have been
made by Lake and his associates.
The decisions uniformly hold that any secret arrangement between the corporation and its
stockholders, by which the responsibility of the latter is made less than it appears to be under
the articles of incorporation, is void as against creditors. Thus, in Allibone v. Hager, 46 Pa.
St. 48, the registered certificate of incorporation showed that a given amount of stock
remained unpaid. The defendants, who had prepared the certificate, claimed that the unpaid
balance represented stock subscribed for by them as agents of the corporation, to be sold by it
when in need of funds. The court overruled the defense, in this language: But, if I
comprehend the ground of defense, it seems to me to be directly in conflict with the act, and
in contradiction of the certificate. The act requires the stock to be subscribed for, and by
persons who are to become members of the company, and the certificate shows that all the
original stock was subscribed by and for the defendants in this suit.
members of the company, and the certificate shows that all the original stock was subscribed
by and for the defendants in this suit. Whatever might be the law between them and the
corporation, as between them and the public the certificate is conclusive. I cannot agree,
therefore, with the position that creditors have only the rights and equities of the corporation
as against the stockholders. They have the rights which the statute gives; no more and no less.
The certificate discloses the extent of the capital stock, and the statute renders all the
subscribers to it liable for its payment when creditors call. Were undisclosed arrangements
permitted to defeat or control the effect of the certificate, that safeguard would at once
become a snare instead of a protection. If capital seeks for immunities, it must take them with
such liabilities as are the terms upon which they are granted.
In McHose v. Wheeler, 45 Pa. St. 40, the certificate was acknowledged and recorded,
certifying that one hundred thousand dollars was subscribed as the capital stock of a
corporation, and that one-quarter of this amount had been paid in. The certificate was untrue.
Many of the persons named as subscribers had not subscribed, and no money was paid in.
The court held that if a person named in the certificate as a member acted as such, or did not
promptly disavow his alleged membership, upon discovering the use of his name, by showing
that he was not a member, he would be deemed as ratifying the relation as to creditors; that
the defendants, who were incorporators, could not set up their own faults and mistakes in
their organization as a defense against creditors; and that, therefore, it was immaterial that no
part of the stock had been paid in, although the statute under which the corporation was
created required one-quarter of the amount to be paid.
Appellant, with others, assumed control of the bank. He must be held to the consequences
of this connection. Persons dealing with the bank were assured that its capital was one
hundred thousand dollars. The law contemplates that this representation shall be true.
Appellant entered into an arrangement by which he appeared to comply with the articles of
incorporation. He must perform the obligation which he appeared to assume. If he did not
expressly subscribe for stock, the law implies an agreement upon his part to pay his
proportionate share.
proportionate share. He received one-quarter of the profits of the concern when it was
apparently prosperous, and is justly decreed to be a subscriber to its stock to the same extent.
Having received the advantages of stockholdership, he cannot escape its responsibilities.
Appellant is a creditor of the bank in a larger sum than the amount of his unpaid
subscription, and claims the right to set off his liability with the bank's indebtedness. In
Scammon v. Kimball, 92 U. S. 366, it was held, upon similar facts, that set-off could not be
allowed. In deciding the case, the court said: Such an indebtedness (for unpaid shares)
constitutes an exception to the rule, that, when there are mutual debts, one may be set against
the other,' as originally provided by act of parliament; or, perhaps, it would be more accurate
to say that the rule does not apply when it appears that the debts are not in the same right, as
well as mutual. (U. S. v. Eckford 6 Wall. 488.) Courts of equity, following the law, will not
allow a set-off of a joint debt against a separate debt, or of a separate debt against a joint debt;
nor will such courts allow a set-off of debts accruing in different rights, except under very
special circumstances, and when the proofs are clear and the equity is very strong. (2 Story,
Eq. 1437.)
The debt which the appellant owes for his unpaid stock is a trust fund which equity will
distribute among all of the creditors. The proofs show a deficiency in the fund. Each must,
therefore, take his dividend pro rata. If the set-off were allowed, the appellant would
appropriate the entire fund. If such a defense were entertained, said the supreme court of
Pennsylvania in Macungie Sav. Bank v. Bastian, 11 Rep. 785, the effect would be to
withdraw from depositors and other creditors of the insolvent bank a portion of the very fund
which was specially provided for the common benefit of all alike, and apply it to the sole
benefit of the defendant, who, at best, has no better right thereto than other depositors. If
every delinquent subscriber to the capital stock could thus pay his subscription, what would
become of other depositors and creditors of the insolvent bank? It is not difficult to see what a
perversion it would be of the trust fund, and to what gross injustice it would necessarily lead.
The bank's indebtedness to appellant is collaterally secured. The district court correctly
held that appellant must pay the amount of his unpaid subscription and surrender the
collateral securities.
the amount of his unpaid subscription and surrender the collateral securities. He could then
participate in the fund ratably with the other creditors.
Objection is made for want of proper parties to maintain this suit. It is urged that the other
stockholders should be made parties defendant, to the end that each shall contribute his
proportion to the debt, and also that all of the creditors should be united as plaintiffs, so that
each may receive his proportion of the fund, and the matter be finally determined in one suit.
In a proceeding to wind up and finally settle all of the affairs of the bank, all of the
stockholders would be necessary parties defendant. This is not such a proceeding, but one to
subject the equitable assets of the bank to the claim of the creditors. If, in this proceeding, the
defendant is required to pay more than his proportionate share of the debts of the bank, he
may in an action against the remaining stockholders, require them to contribute their fair
share. In Hatch v. Dana, 101 U. S. 210, this question was considered. The court said: The
liability of a subscriber for the capital stock of a company is several and not joint. By his
subscription each becomes a several debtor to the company; as much so as if he had given his
promissory note for the amount of his subscription. At law, certainly, his subscription may be
enforced against him without joinder of other subscribers; and in equity his liability does not
cease to be several. A creditor's bill merely subrogates the creditor to the place of the debtor,
and garnishes the debt due to the indebted corporation. It does not change the character of the
debt attached or garnished. It may be that if the object of the bill is to wind up the affairs of
this corporation, all the shareholders, at least so far as they can be ascertained, should be
made parties, that complete justice may be done by equalizing the burdens, and in order to
prevent a multiplicity of suits. But this is no such case. The most that can be said is that the
presence of all the stockholders might be convenient, not that it is necessary. When the only
object of a bill is to obtain payment of a judgment against a corporation out of its credits or
intangible propertythat is, out of its unpaid stockthere is not the same reason for
requiring all the stockholders to be made defendants. In such a case no stockholder can be
required to pay more than he owes.
In Marsh v. Burroughs, 1 Woods, 468, the non-joinder of parties was set up in defense.
parties was set up in defense. The court said: A judgment creditor, who has exhausted his
legal remedy, may pursue in a court of equity any equitable interest, trust, or demand of his
debtor, in whosesoever hands it may be, and if the party thus reached has a remedy over
against other parties for contribution or indemnity, it will be no defense to the primary suit
against him that they are not parties. If a creditor were to be stayed until all such parties could
be made to contribute their proportionate shares of the liability, he might never get his
money. (Ogilvie v. Knox. In. Co. 22 How. 380; Bartlett v. Drew, 57 N. Y. 587.)
The authorities are somewhat conflicting upon the question as to necessary parties
plaintiff, in suits of this character. In Marsh v. Burroughs, supra, Mr. Justice Bradley says: It
has long been settled that a judgment creditor, who has exhausted his legal remedy by
execution returned nulla bona, may alone, or with other judgment creditors, file a bill against
persons holding property of the debtor, which, on account of fraud or the existence of a trust,
cannot be reached by execution.
To the same effect is Bartlett v. Drew, 57 N. Y. 587. This ruling goes further than is
necessary to uphold the present case. Other cases hold that all persons interested in the
subject-matter of the suit must be made parties, so that complete justice may be done, and a
multiplicity of suits avoided. An exception to this rule has been uniformly allowed in cases of
the character of the present one, when there are many persons having a common interest. In
such cases one or more may sue for the benefit of all, and those who come in and establish
their claims share with the plaintiff in the benefit of the decree. The doctrine is thus stated by
Chancellor Walworth in Hallett v. Hallett, 2 Paige Ch. 19; If there are many parties standing
in the same situation as to their rights or claims upon a particular fund, and when the shares
of a part cannot be determined until the rights of all the others are settled or ascertained, as in
the case of creditors of an insolvent estate, or residuary legatees, all the parties interested in
the fund must, in general, be brought before the court, so that there may be but one account,
and one decree settling the rights of all. And if it appears on the face of the complainant's bill
that an account of the whole fund must be taken, and that there are other parties interested in
the distribution thereof, to whom the defendants would be bound to render a similar
account, the latter may object that all who have a common interest with the complainants
are not before the court.
defendants would be bound to render a similar account, the latter may object that all who
have a common interest with the complainants are not before the court. In these cases, to
remedy the practical inconvenience of making a great number of parties to the suit, and
compelling those to litigate who might otherwise make no claim upon the defendants, or the
fund in their hands, a method has been devised of permitting the complainants to prosecute in
behalf of themselves, and all others standing in the same situation who may afterwards elect
to come in and claim as parties to the suit, and bear their proportion of the expenses of the
litigation.
This rule of equity practice was adopted in this state by section 1077 of the compiled laws.
The provision enacts, among other things, that when the question is one of common or
general interest, of many persons, * * * one or more may sue or defend for the benefit of all.
(See, also, McKenzie v. L'Amoureux, 11 Barb. 516.)
The amendment to the complaint heretofore mentioned, by which the other creditors could
come in and prosecute the suit with the plaintiff, brought the case within the exception stated.
The amendment was made immediately before the trial, but the court, by its decree, allowed
the remaining creditors a reasonable timethirty days from the entry of the decreewithin
which to prove their claims and share with the plaintiff in the distribution of the trust fund.
None came in; but no complaint in this regard has been suggested in behalf of any creditor.
The action of the district court in this particular is consonant with the equity practice. The
court will generally, at the hearing, allow a bill, which has originally been filed by one
individual of a numerous class in his own right, to be amended so as to make such individual
sue on behalf of himself and the rest of the class. (1 Dan., Ch. Pl. & Pr. 245.) Nor does it
appear that notice to the other creditors was necessary. Thompson, in his Treatise upon the
Liability of Stockholders, says of suits brought by one creditor in behalf of himself, and all
others who may come in and establish their debts: This does not mean that the creditor who
files the bill is under any obligation to look up all the widely-scattered creditors of the
corporation, and get their consent to the filing of the bill, or notify them to join him in it.
(Section 351.)
The decree and order of the district court are affirmed.
During the pendency of this appeal, Mr. Lake, defendant herein, has died. An order has
been made directing the substitution of the administrator of his estate.
____________
19 Nev. 118, 118 (1885) Alt v. California Fig Syrup Company
[No. 1198.]
GEORGE ALT, Respondent, v. CALIFORNIA FIG SYRUP
COMPANY, Appellant.
EvidenceValue of ServicesExpert TestimonyOpinion of WitnessesPlaintiff sued for the value of his
services in the preparation of a proprietary medicine, the process of manufacturing it being only known to
him and one other person: Held, that witnessesnot expertsmight give their opinions as to the value of
the services.
DeedConstruction ofOther PropertyOther ThingsPlaintiff and others being the proprietors of certain
medicine and the appliances connected with its manufacture, conveyed their interest therein to the
corporation defendant. At that time plaintiff was indebted to his associates for a balance due upon the
purchase price of his interest: Held, that the words all the other property and other things in the
clause of the deed, and in all the other property, labels, circulars and other things, were not intended to
include plaintiff's indebtedness to the partnership; but referred to property of the nature of labels and
circulars.
Thomas E. Hayden, for Appellant:
Robert H. Lindsay, for Respondent:
One of the objections in this case is founded upon the ruling of the district court, admitting
in evidence the opinions of Alt, Thayer and Levy as to the value of the services rendered by
the plaintiff in the preparation of a proprietary medicine called Syrup of Figs. The process
of manufacturing the compound is a secret known only to the plaintiff and one other
personan officer of the defendant corporation. In their preliminary examination, the
witnesses severally declared that they were conversant with the value of labor and services
generally in the community in which the work in this case was performed, and that they
knew of the extent and value of the services rendered by the plaintiff.
19 Nev. 118, 119 (1885) Alt v. California Fig Syrup Co.
were conversant with the value of labor and services generally in the community in which the
work in this case was performed, and that they knew of the extent and value of the services
rendered by the plaintiff. The objection is based upon the competency of the witnesses as
experts. They do not appear to have been offered as experts. The subject upon which they
testified was, from its nature, one upon which expert testimony could not have been given.
The reason for admitting expert testimony, as stated by Chief Justice Shaw, is that the expert,
from his larger experience and more exact observation of facts, and the connection between
appearances and their causes or results, is able to draw correct conclusions from
circumstances which a man of ordinary knowledge and experience could not do. (Dickenson
v. Fitchbury, 13 Gray, 546.)
The subject of inquiry in the present case was not beyond the knowledge of ordinary men.
But witnesses are allowed to give their opinions on questions of value, for the reason that the
subject may not have fallen under the observation of the jury, and the inquiry is allowed, to
prevent a failure of justice. The opinion of witnesses acquainted with the value of land was
received in the case of Swan v. Middlesex, 101 Mass. 177. In considering the competency of
the evidence the court said: These opinions are admitted, not as being the opinions of
experts, strictly so called, for they are not founded on special study or training or professional
experience; but rather from necessity, upon the ground that they depend upon knowledge
which any one may acquire, but which the jury may not have, and that they are the most
satisfactory, and often the only attainable, evidence of the fact to be proved. (See, also,
Brady v. Brady, 8 Allen 101; Anson v. Dwight, 18 Iowa 242; Printz v. People, 42 Mich. 144;
Continental Ins. Co. v. Horton, 28 Mich. 173; Whart. Ev., Sec. 447; Rog. Exp. Test., Sec.
153.)
Another objection is to the construction placed by the district court upon a deed made by
plaintiff and others to the defendant corporation. Prior to the incorporation of the California
Fig Syrup Company, the plaintiff, Alt and others were the proprietors of the medicine, and of
the appliances connected with its manufacture and sale. Alt owed his associates a balance of
one thousand six hundred dollars upon the purchase price of his interest. Upon the creation of
the corporation they all joined in a deed of conveyance to it.
19 Nev. 118, 120 (1885) Alt v. California Fig Syrup Co.
joined in a deed of conveyance to it. It is claimed that the conveyance embraces this
indebtedness. The deed, in the first place, conveys certain enumerated property, and then
proceeds as follows: Also, the same undivided interest in all the machinery and means used
in manufacturing said medicine, in the materials used, now belonging to them in such
manufacture, in all such medicine now on hand or sold conditionally, and in the price of that
sold or furnished and not yet paid for, in the bottles filled and unfilled, and in the mystery or
art of compounding or manufacturing said medicine, and in all the other property, labels,
circulars, and other things, rights or interests in or relating to such medicine, now belonging
to said first parties. etc.
If the indebtedness of one thousand six hundred dollars is conveyed at all, it is by the
words all the other property, and other things. But we are of opinion that these words do
not include, and were not intended to include, the indebtedness, becausefirst, the
instrument of conveyance carefully designates the particular property conveyed, and so
important a matter as this indebtedness would naturally have been mentioned if the intention
had been to transfer it; and, second, the rule of construction is that general expressions, of the
nature of those quoted, used in connection with enumerated matters and things, are limited to
matters and things of the same kind. Thus the words all the other property, and other
things, refer to property of the nature of labels and circulars. The clause, rights or interests
in or relating to such medicine, probably refer to the proprietary right and matters connected
therewith; certainly it cannot be construed to include a debt due from Alt to the partnership.
(Sedg. St. & Const. Laws, 360; St. Louis v. Laughlin, 49 Mo. 562; Grumley v. Webb, 44 Mo.
444; White v. Ivey, 34 Ga. 186.)
The judgment and order of the district court are affirmed.
____________
19 Nev. 121, 121 (1885) Sutro Tunnel Company v. Segregated Belcher Mining Company
[No. 1207.]
SUTRO TUNNEL COMPANY, A Corporation, Respondent, v.
SEGREGATED BELCHER MINING COMPANY, A
Corporation, Appellant.
Statute of LimitationsConstruction of Section 21.Section 21 of the statute of limitations applies to the class
of cases mentioned in section 32 as well as those mentioned in section 16. It applies to all causes of
action; to foreign corporations as well as individuals absent from the state; to contracts made out of the
state to be performed within it, as well as contracts made within the state.
ContractArbitrationPayment of Money.The provision in a contract between two parties, whereby all
disputes between them are to be submitted to arbitration before being made the subject of litigation in the
court is not binding upon the parties in a case where the controversy arises out of the non-payment of a
sum of money, and the contract itself fixes the price to be paid and the time of payment.
ContractsConstruction OfIn construing the contract made in 1866 with the contract in 1879set forth in
the opinion: Held, that the covenants in relation to the price to be advanced for the construction of the
tunnel are embodied in the agreement of 1879 and can be enforced without reference to the contract of
1866.
Mining CorporationUltra ViresConstruction of a TunnelIncidental PowerAdvancing Money.A
contract made by a mining corporation to advance a specified sum of money for the construction of a
tunnel to drain its mine, etc., is not ultra vires. Such contracts come within the implied or incidental
powers of the corporation.
ContractPayment of MoneyEstoppelAppellant executed a contract and bound itself to pay a certain sum
per foot for the construction of a tunnel: Held, that it could not avoid this contract by showing that the
tunnel could have been, or was constructed for a less sum per foot.
InterestDamagesBreach of ContractPlace of PerformanceIn a case where interest is given as damages
for the breach of a contract, the rate of interest allowed by the laws of the state where the contract is to be
performed should govern.
Appeal from the District Court of the First Judicial District, Storey County.
The facts are stated in the opinion
B. C. Whitman, for Appellant:
I. If respondent ever had any cause of action against appellant, the same is barred. (Stat.
1861, 26, 40; 1867, 85.)
II. Respondent was bound to arbitrate, or to seek to arbitrate, before bringing suit.
(Contract article 15; 1 Comp. L. 1426; President v. Penn. C. Co., 50 N. Y. 250; Holmes v.
Richet, 56 Cal. 307; Old Saucelito L. & D. Co v. Commercial U. A. Co., 66 Cal. 253.)
III. The contract of 1879 is so inextricably mixed with the agreement of March, 1866, that
it cannot stand without it. If this latter falls, the entire contract fails. The agreement of 1866
was never a valid one, because based upon a law, (Stat. 1864-5, 128,) which was an
unconstitutional special grant. (Const., Art. 4, Sec. 21.) The only inference to be drawn from
the preamble of the contract of 1879, and the agreement itself, is that the Sutro Tunnel
Company therein named was a corporation. If so, it was an unconstitutional creation. (Const.,
Art. 8, Sec. 1; State v. Tollroad Co., 10 Nev., 161.)
IV. Appellant has no power, under its articles of incorporation, to advance to respondent
any money for the construction of the tunnel. This so-called advance was an actual gift--a
possible loan. It was never to be repaid, nor in any manner recouped, unless appellant
extracted ore in quantities sufficient to absorb in toll or royalty the moneys so advanced, and
then, without interest. The loan was immediate; its repayment too remote and speculative to
form the basis of a reasonable contract, even between individuals.
The articles of incorporation of appellant define and bound its powers; they are its charter,
and by such charter appellant is circumscribed. (Green's, Brice's Ultra Vires, 610; Ang. & A.
on Corp., Sec. 256; Davis v. Old Cotony R. R. Co., 131 Mass. 258, and authorities there
cited.)
M. N. Stone, for Respondent.
I. Appellant, being a foreign corporation, cannot plead the statute of limitation. (Olcott v.
Tioga R. R. Co., 20 N. Y. 210; Robinson v. Imperial S. M. Co., 5 Nev. 74; Barstow v. Union
Con. S. M. Co., 10 Nev. 386; State v. C. P. R. R., 10 Nev. 81).
No distinction exists between contracts made in the state and obligations incurred out of
the state by non-residents thereof. (Ruggles v. Keeler, 3 Johns. N. Y. 263; Olcott v. Tioga R.
R. Co., 20 N. Y. 223; Carpenter v. Wells, 21 Barb. 594; Gans v. Frank, 36 Barb. 320; Power
v. Hathaway, 43 Barb. 214; Bower v. Henshaw, 56 Miss. 619.)
II. The parties having fixed the amount to be paid, and the time it should be paid or
advanced to respondent, the provisions in the fifteenth article for arbitration will not be
regarded as of any binding force by the courts. (Rowe v. Williams, 97 Mass. 164; Tobey v.
County of Bristol, 3 Storey 800; 1 Ben. F. In. Cases, 118-124; Storey's Eq., Sec. 1457; Wood
v. Humphrey, 114 Mass. 185; Mentz v. Armenia F. In. Co., 79 Pa. Stat. 478; Leonard v.
House, 15 Ga. 473; Haggart v. Morgan, 5 N. Y. 427; Hurt v. Litchfield, 39 N. Y. 377.)
III. After the lateral tunnel was fully completed, nothing in the contract remained
executory, so far as respondent was concerned, and the benefit thereof being received by
appellant, nothing remained for it to perform except to pay the stipulated price for the work.
(Bissell v. Mich. S. & N. & I. R. R. Co., 22 N. Y. 262; Ross v. Rossie Lead M. Co., 5 Hill 137;
Silver Lake Bank v. North, 4 Johns Ch. 370.)
IV. The running of a tunnel for mining and drainage purposes is often essential, and is
always one of the ordinary affairs of mining corporations. If the power to make such
contracts is not expressly conferred by the statute, it is to be implied from the purposes of the
incorporation and the nature of the business to be engaged in by it. (Green's, Brice's Ultra
Vires, 89, 95; Miner's Ditch Co. v. Zellerbach, 37 Cal. 578; Union Water Co. v. Murphy's
Flat Flume Co., 22 Cal. 620; Brown v. Winnisimmet Co., 11 Allen (Mass.) 326; California
State T. Co. v. Alta T. Co., 22 Cal. 428.)
On the twenty-sixth day of March, 1866, an agreement was entered into between the
trustees of the Sutro Tunnel Company, an association then existing under the laws of this
state, it being the predecessor in interest of the present corporation, respondent herein, and the
Gould & Curry Silver Mining Company, then a mining corporation, with reference to the
construction of the Sutro tunnel, under the act of the legislature of this state, approved
February 4, 1865, (Stat. 1864-65, 128,) and the royalty to be paid by the mining corporation
for the extraction of ore after the drainage of its mine by the tunnel.
On the twenty-ninth day of March, 1879, the parties to this suit, in the city of San
Francisco, state of California, made and entered into an agreement, which recites that the
agreement dated March 26, 1S66, "between the said parties thereto, for the construction
of a tunnel known as the Sutro tunnel, is hereby made and constituted the agreement by
and between the parties hereto, and recognized as existing and binding between the
parties hereto, subject to the changes and modifications hereinafter contained, which are
hereby agreed to and adopted, whether specific reference is herein made to the portions
of said agreement hereby changed and modified or not."
suit, in the city of San Francisco, state of California, made and entered into an agreement,
which recites that the agreement dated March 26, 1866, between the said parties thereto, for
the construction of a tunnel known as the Sutro tunnel, is hereby made and constituted the
agreement by and between the parties hereto, and recognized as existing and binding between
the parties hereto, subject to the changes and modifications hereinafter contained, which are
hereby agreed to and adopted, whether specific reference is herein made to the portions of
said agreement hereby changed and modified or not. This new agreement contains fourteen
separate articles relating to the construction of lateral tunnels, drainage of the mining ground,
royalty to be paid for ore extracted from appellant's mine, etc. Under the provisions of article
four respondent agreed to construct a lateral tunnel from and to certain named points, of
special dimensions, to be provided with a suitable drain for the flow of water coming into it
from the mine owned by appellant, the said lateral tunnel to be the property of respondent.
Under article six appellant agrees to advance to said party of the first part in gold coin of the
United States, on the fifth day of each and every month, seventy dollars for every linear foot
of said lateral tunnel constructed during the preceding month. It is agreed that the sum so
advanced shall not constitute a direct liability against respondent, but may be discharged as
provided in article seven. It is further agreed that if appellant fails to pay respondent in the
manner stated, it will be liable for all direct and consequential damages resulting from such
default. In article seven respondent agrees that the advances made by appellant under the
provisions of article six may be repaid by appellant deducting one-half the charges that may
be due respondent upon each ton of ore extracted from appellant's mine until the sum so
withheld shall amount to the whole sum to be advanced for the construction of the tunnel. It
does not appear that any ore was extracted from appellant's mine after the execution of the
contract.
This action was brought to recover the amount due for the construction of one hundred and
seventy-one linear feet of said lateral tunnel, and for the consequential damages resulting
from the non-payment of the same. Appellant and respondent are corporations organized
and existing under, and by virtue of, the laws of the state of California.
are corporations organized and existing under, and by virtue of, the laws of the state of
California.
1. The first question to be considered involves a construction of the statute of limitations.
(1 Comp. Laws, 1016-1048.) Can a foreign corporation, in a case where the contract was
made out of this state, plead the provisions of this statute? Does section 21 of the statute refer
to the provisions of section 32 as well as to section 16? Appellant contends that the statute in
question is different from that of other states; that in effect it should be classified and treated
as two distinct statutesone preceding section 32, the other including it and subsequent
sections; that the latter statute is unique in its character and is independent of all the
provisions contained in the first statute. This position is a novel one, and has been presented
in an ingenious and plausible manner; but the question arises whether it can be supported by
the crucial test applied in the construction of all statutesthe intention of the legislature. Did
the legislature intend that such a construction should be placed upon its work? Was it within
the thoughts of the members of that body when enacting the original provisions in 1861, or
when adopting the amendments of 1867? In considering these questions we are irresistibly
led to the conclusion that such was not the intention of the legislature. When the amendments
of 1867 were enacted, they became a part of the law of 1861. The law thereafter, as before,
was embodied in one statute upon the subject, and must be treated as an entirety. When the
amendments of 1867 were made, sections 21 and 32 were both revised. The whole subject
was before the legislature. It necessarily follows that if section 21 applied to section 32 in the
original act, it is also applicable in the act as amended. The question then is whether section
21 was ever intended to apply to section 32. The language of section 21 is general in its
terms. There are no restrictions to any specified class of cases or causes of action.
In Robinson v. Imperial Silver Min. Co., 5 Nev. 75, this court declared that the expression
cause of action in section 21 includes actions concerning real estate as well as personal
actions. Section 21 was inserted for the purpose of creating an exception to the general rule as
to the time when the cause of action, whatever it might be, should be commenced; the
exception being the absence of the defendant from the state. There is not, in our opinion, any
substantial reason why the provisions of section 21 should not be made applicable to the
class of cases mentioned in section 32, as well as those mentioned in section 16.
is not, in our opinion, any substantial reason why the provisions of section 21 should not be
made applicable to the class of cases mentioned in section 32, as well as those mentioned in
section 16. In the absence of any words in section 21 limiting or restricting its provisions to a
certain class of cases or to certain sections of the statute, we are of opinion that it was the
intention of the legislature that it should apply to all causes of action; to foreign corporations,
as well as individuals absent from the state; to contracts made out of the state, to be
performed within it, as well as to contracts made within this state.
2. The next question presented for our determination arises under the provisions of article
15 of the first agreement, executed in March, 1866: If any question should arise between the
parties to this agreement, either in respect to the time when the mine of the party of the
second part shall have been drained in accordance with the foregoing articles, and the
payment of two dollars per ton for ore extracted should commence; or in respect to the
amount of money at any time due or payable from the party of the second part to the parties of
the first part, it is agreed that such question shall be determined by each party choosing one
competent and disinterested person as an arbitrator; and in the event of disagreement between
such arbitrators, they shall choose a third competent and disinterested person. The arbitrators
shall be sworn, and a majority of the three may decide the disagreement between the parties
hereto, and their decision shall be final.
Under this clause of the agreement, was respondent bound to arbitrate, or make an effort to
arbitrate, the disagreements between it and appellant, before commencing this action? It is
questionable whether this article has any application to the facts of this case. It will be
observed that the agreement of 1866 is adopted subject to the changes and modifications
contained in the agreement of 1879. The article in question related to the main tunnel, to its
construction and maintenance, and to the rights and privileges of the mine-owners therein.
The main tunnel was not then completed to the Comstock lode, and many questions were
liable to arise as to when the tunnel should in fact drain the mines, or when the payment of
royalty for ore extracted should begin; and a disagreement upon either of these questions
necessarily involved the other in respect to the amount of money that might, at any time, be
due or payaable between the parties.
able between the parties. The differences which arose between the parties are assigned as a
reason for the making of the new contract, containing modifications and changes of a
substantial nature as follows: And, whereas, both of the parties hereto are desirous of
adjusting all differences existing between themselves, and of preventing a recurrence thereof
in the future, etc.
Under these circumstances, it would seem that the fifteenth article of the original
agreement was not applicable to the new condition of affairs under the contract of 1879. But
if we concede, for the sake of the argument, that it must be considered as of binding force,
what was there in dispute between these parties that required an arbitration to be made? Bear
in mind that no controversy is presented in the record as to the length of the lateral tunnel, or
its completion in accordance with the specifications, and the amount of money to be
advanced, as well as the time of payment, is expressed in the agreement. Upon this state of
facts, what could have been accomplished by arbitrators under the limited authority given
them in the covenant under consideration? There was no dispute in respect to the time when
the mine of appellant should be drained; no dispute as to when the payment for ore
extracted should commence; and no dispute in respect to the amount of money at any time
due or payable from appellant to respondentwithin the power or province of the arbitrators
to adjust even if they had been appointed. The only question in dispute as to the amount of
money due arises from the contention of appellant that it was only responsible for the actual
cost of the construction of the tunnel, and, as we shall have occasion hereafter to state, that
contention cannot be legally sustained.
The case at bar, therefore, bears no analogy to the covenants contained in insurance
policies, with reference to the mode of ascertaining the loss in case of the destruction of the
property insured, or any part of it, by fire. There are other authorities which hold that if
provision is made for the settlement of disputes by arbitration, in regard to the value of the
work to be done or the price of materials to be purchased, where no fixed value is stated in
the contract, the arbitration must be had before the action to recover the price can be
maintained; but where the contract itself fixes the price to be paid and the time of payment,
courts invariably take cognizance of the action, and determine the legal disputes between
the parties without regard to the clause in the contract providing for an arbitration.
of payment, courts invariably take cognizance of the action, and determine the legal disputes
between the parties without regard to the clause in the contract providing for an arbitration.
(See authorities cited by respondent.) This principle is recognized in Old Saucelito L. & D. D.
Co. v. Commercial U. A. Co., cited by appellant, wherein the court, upon this subject, said:
It is well settled that a general provision that all disputes which may arise in the execution of
a contract shall be decided by arbitrators, will not be allowed to deprive the courts of their
jurisdiction. But the parties to a contract may fix on any mode they think fit to liquidate
damages in their own nature unliquidated, and, in such case, no recovery can be had until the
prescribed method has been pursued, or some valid excuse exists for not pursuing it. (66
Cal. 253.)
This is not such a case, and the appointment of arbitrators was not a condition precedent to
be performed prior to the commencement of this action.
3. We shall not stop to inquire, in the determination of the next point presented by
appellant, whether the agreement of 1866 was valid as between the original parties, or
whether it was void because based upon a law (Stat. 1864-65, 128) which it is contended was
an unconstitutional grant. Suppose the old agreement to have been void at the time of its
execution, or, if valid, that the special grant of the statute lapsed before the agreement of 1879
was made; would these facts deprive respondent of its right to maintain this action under the
second agreement? We think not. Would not the new contract be binding between the parties
to this action, although the old agreement might have been held void as between the parties
thereto? Could not the parties to the new agreement adopt such covenants, in the other
agreement, as they deemed applicable to the new, although that instrument was absolutely
void between the parties to it? We think they could. Moreover, the covenants in relation to
the price to be advanced for every linear foot of the lateral tunnel constructed by respondent
are embodied in the new agreement, and can be enforced without reference to any of the
covenants and conditions contained in the agreement of 1866.
4. We now come to the fundamental proposition: Did appellant have any authority, under
its charter, to make the contract in question? Appellant is a mining corporation, organized for
the purpose of gold and silver mining in the Gold Hill mining district, in Storey county.
the purpose of gold and silver mining in the Gold Hill mining district, in Storey county. The
construction of the lateral tunnel was declared in the agreement to be a benefit to appellant in
conducting its business. The tunnel, when constructed, aided appellant in draining the water
from its mine, furnished it with additional facilities of ventilation, and was expected to prove
beneficial to it in the transportation of its ores. To secure these supposed advantages for the
more thorough development of its mine, it agreed to advance to respondent a specified sum
of money per foot for the construction of the lateral tunnel. Was not such a contract within the
legitimate scope of its business? Is it not, at times, necessary for mining corporations to enter
into contracts of a similar character? It is unnecessary to enter into a detailed statement as to
the method of working mines and conducting the business of extracting ores from the lower
levels of the Comstock lode. The difficulties under which the mining companies labor, in
getting rid of the water, are well understood. Without a concert of action between the
different mining companies, or the advantages to be obtained from a tunnel company draining
the ground, it would often be extremely difficult, if not impossible, to accomplish this
purpose. Under such a condition, would not one mining company have the right, under its
charter, to advance money to another for aiding it in pumping out the water from its mine?
The contract is not one, as claimed by appellant, of a mining corporation agreeing to advance
money, pure and simple, to a tunnel corporation solely for its use and benefit. It is a contract
of a mining corporation to advance a specified sum of money, per foot, for the construction of
a tunnel to drain its mine, and other purposes, as hereinafter stated, and is within the scope of
its business. In making it, appellant did not exceed its chartered powers. The contract was not
ultra vires.
The facts of this case are wholly unlike those which existed in Davis v. Old Colony R. Co.,
131 Mass. 258, upon which appellant relies. There a railroad company, together with another
corporation organized for the purpose of manufacturing and selling musical instruments,
entered into an agreement to guaranty the payment of the expenses of a musical festival, to be
held in the city of Boston, under the reasonable belief that the holding of the festival would
be of great pecuniary benefit to the corporations by increasing their business.
that the holding of the festival would be of great pecuniary benefit to the corporations by
increasing their business. The court, after a careful review of numerous authorities, both in
England and the United States, declared that the contract was ultra vires, and that no action
could be maintained upon it. Why? Because, to quote the language of the court: The holding
of a world's peace jubilee and international musical festival is an enterprise wholly outside the
objects for which a railroad corporation is established; and a contract to pay, or to guaranty
the payment of, the expenses of such an enterprise, is neither a necessary nor an appropriate
means of carrying on the business of the railroad corporation; is an application of its funds to
an object unauthorized and impliedly prohibited by its charter; and is beyond its corporate
powers. Such a contract cannot be held to bind the corporation by reason of the supposed
benefit which it may derive from an increase of passengers over its road, upon any ground
that would not hold it equally bound by a contract to partake in or guaranty the success of any
enterprise that might attract population or travel to any city or town upon or near its line. In
the case of the other corporation the same reason existed. The power to manufacture and sell
goods of a particular description does not include the power to partake in or to guaranty the
profits of an enterprise that may be expected to increase the use of or the demand for such
goods.
It is apparent that the doctrines announced in that decision are not applicable to the facts of
this case. There the benefits to the corporations were wholly disconnected, remote, and
foreign to the business in which they were engaged. Here the benefit to appellant is direct.
The construction of the lateral tunnel, if not absolutely necessary, was certainly a convenient
and appropriate means to drain its mine, and enable it to properly conduct and carry on its
legitimate business of mining in a systematic and scientific manner.
In Brice's Treatise on the Doctrine of Ultra Vires, it is said that corporations may transact,
in addition to their main undertaking, all such subordinate and connected matters as are, if not
essential, at least very convenient to the due prosecution of the former, and that, under many
circumstances, they are in a manner necessitated to engage in business which is not within
the mere letter of their constitution."
within the mere letter of their constitution. (Green's Brice's Ultra Vires, 89.)
In applying these principles, the courts have held that a corporation, created for the
purpose of mining and transportation of coal, had the power to purchase and use a steamboat
for the purpose of conveying its coal to market, (Callaway M. & M. Co. v. Clark, 32 Mo.
305;) that a corporation, created for the purpose of raising and smelting lead ore, had power
to purchase smelting works, and assume a contract entered into by their vendors providing
means for the transportation of their ores, when smelted, to market, (Moss v. Averell, 10 N.
Y. 455;) that a corporation created for the purpose of carrying on an iron furnace is authorized
to carry on a supply store in connection with that business, (Searight v. Payne, 6 Lea, 283;)
that railroad corporations have the right to own and control steamboats for the purpose of
transporting their freight and passengers across navigable waters on the line of their routes,
and also at the end of their roads separating them from the substantial termini of their routes,
(Wheeler v. San Francisco & A. R. Co., 31 Cal. 65;) that where power is given to a railroad
corporation to transport persons and property beyond the termini of its road, it has authority
to purchase and use a steamboat for that purpose, (Shawmut Bank v. Platsburg & M. R. Co.,
31 Vt. 496;) that a railroad corporation, authorized to carry passengers and transport freight
beyond its own lines, and to run steamboats for that purpose, may hire, either by the trip or by
the season, steamboats belonging to others, or employ such steamboats to carry passengers
and freight in connection with its own railroad and business, and guaranty to the proprietors
that their gross earnings for the season shall not fall below a certain sum. (Green Bay & M. R.
Co v. Union Steamboat Co., 107 U. S. 101.)
These and numerous other kindred cases proceed upon the theory that if the contract of the
corporation is reasonably confined and connected with the business in which the corporation
is engaged it comes within its implied or incidental powers. Corporations may so far develop
and extend their operations as to engage in matters not primarily contemplated by their
founders, provided these matters come fairly within their scope, and provided, also, that in so
developing and extending their undertaking, they employ direct and not indirect means."
undertaking, they employ direct and not indirect means. (Green's Brice's Ultra Vires, 90.)
It will be observed, upon an examination of the cases, that the learned justice who
delivered the opinion of the court in Davis v. Old Colony R. Co. also rendered the decision of
the court in Green Bay & M. R. Co. v. Union Steamboat Co. supra. In the latter case he said:
The general doctrine upon this subject is now well settled. The charter of a corporation, read
in connection with the general laws applicable to it, is the measure of its powers, and a
contract manifestly beyond those powers will not sustain an action against the corporation.
But whatever, under the charter and other general laws, reasonably construed, may fairly be
regarded as incidental to the objects for which the corporation is created, is not to be taken as
prohibited.
5. It was averred in the answer that the cost of the construction of the tunnel through
defendant's mining ground should not have been, and was not, greater than forty dollars per
foot. At the trial, testimony was given to the effect that a similar tunnel was constructed at a
cost of twenty-eight dollars per foot; and it is claimed that the court erred in allowing seventy
dollars per foot. This position is clearly untenable. The contract was that appellant should
advance and pay seventy dollars for each foot of the tunnel. It could not avoid this contract by
showing that the tunnel could have been, or was, constructed for a less sum per foot. The
question as to its actual cost was wholly immaterial. The parties fixed the price by their
contract, and, in the absence of any fraud, undue advantage, or failure to comply with the
covenants as to its construction, are bound by the terms of the contract. We do not believe
that appellant would be willing to admit that if the tunnel had actually cost one hundred
dollars per foot to construct it, that respondent could have recovered that amount under any of
the covenants in the contract. It was not entitled to recover any more, and was not bound to
take any less, than was nominated in the bond.
6. Objection is made to the amount of interest allowed. It was admitted at the trial that the
legal rate of interest in California, where the contract was executed, was seven per cent. per
annum, and the question is presented whether the court erred in allowing interest at the rate of
ten per cent. per annum, that being the legal rate of interest allowed by the laws of this
state.
annum, that being the legal rate of interest allowed by the laws of this state. The ruling of the
district court was correct. The work under the contract was done and performed within this
state. In a case like this, where the interest is given as damages for a breach of a contract, the
rate of interest allowed by the laws of the state where the contract is to be performed should
govern. (2 Pars. Cont. 585; Goddard v. Foster, 17 Wall. 143.) It is a general rule that where
the contract stipulates for interest, it is payable agreeable to the law of the place where the
contract is made; but if the contract is made with reference to the laws of another state or
county, and is to be performed there, the interest is to be calculated according to the laws of
the place where the contract is to be performed or the money paid. The place of performance
is chiefly regarded; it locates the contract; the parties are presumed to have the laws of that
place in view in making their contract. (1 Suth. Dam. 631.)
____________
19 Nev. 133, 133 (1885) Miliani v. Tognini
[No. 1205.]
SALVATORE MILIANI, Respondent, v. JOSEPH TOGNINI,
et al., Appellant.
ContractRight of ActionBeneficial Interest.A plaintiff may maintain an action on a simple contract, to
which he was not a party, upon which he was not consulted, and to which he did not assent, when it
contains a provision for his benefit.
H. K. Mitchel, for Appellant.
There is not any contract or privity of contract in this action to entitle plaintiff to recover.
The complaint or testimony does not bring plaintiff within any of the exceptions of the
general rule stated in the authorities. (1 Whar. on Con., Secs. 506-7; 2 Ib., Sec. 784; Vrooman
v. Turner, 69 N. Y. 280; National Bank v. Grand Lodge, 9S U. S. 123;
National Bank v. Grand Lodge, 98 U. S. 123; Mellin v. Whipple, 1 Gray 321; Millard v.
Baldwin, 3 Gray 484; Treat v. Stanton, 14 Conn. 445; Morrison v. Beckey, 6 Watts 49; Carr
v. National Bank, 107 Mass. 45; Exchange Bank v. Rice, 107 Mass. 41.)
Baker & Wines, for Respondent.
Appellants, for the purpose of obtaining possession of the wood and settling a dispute,
made the debt owing by Cesa their own, hence their promise was to pay their own debt.
(Wyman v. Goodrich, 26 Wis. 21; Putney v. Farnham, 27 Wis. 187; Nelson v. Boyonton, 3
Met. 400; Shook v. Vanmater, 22 Wis. 532; Alcalda v. Morales, 3 Nev. 132; 1 Par. on Cont.
438, note n; Stoddard v. Mix, 14 Con. 21-22; Barlow v. Ocean Ins. Co. 4 Met. 270; White v.
Hoyt, 73, N. Y. 505.)
Plaintiff cut for Charles Cesa two hundred and eleven and seven-eighths cords of wood, at
an agreed price of one dollar and fifty cents per cord, amounting in all to three hundred and
seventeen dollars and eighty cents, and no part of said sum has been paid. There was a dispute
between Cesa and defendant in relation to the wood, which was in possession of Cesa. In
order to obtain possession from Cesa, defendants undertook and agreed with Cesa to pay
plaintiff the amount due the latter for cutting the wood, to-wit: three hundred and seventeen
dollars and eighty cents, and in consideration of that agreement, and to compromise and settle
the dispute before mentioned, Cesa delivered the wood to defendants. Plaintiff recovered
judgment for the amount claimed. Defendants appeal from the judgment and ask a reversal on
the ground that there was no contract or privity of contract between plaintiff and defendants.
The precise question presented is this: Can a plaintiff maintain an action on a simple
contract to which he is not a party upon which he was not consulted, and to which he did not
assent, when it contains a provision for his benefit? Besides the statute which provides that
every action shall be prosecuted in the name of the real party in interest, this court has held
in three different cases that the beneficiary named in such a contract may maintain an action
thereon in his own name.
(Ruhling v. Hackett, 1 Nev. 370; Alcalda v. Morales, 3 Nev. 137; Bishop v. Stewart, 13 Nev.
35. See, also, 2 Whar. Cont. Sec. 785, and the numerous authorities there cited; McDowell v.
Laev, 35 Wis. 175; Lawrence v. Fox, 20 N. Y. 268; Hendrick v. Lindsay, 93 U. S. 143;
Dingledein v. Railroad Co., 37 N. Y. 577.)
In consideration of a delivery of the wood by Cesa to them, defendants agreed to pay
plaintiff Cesa's indebtedness. In this promise the exclusive beneficial interest is in plaintiff.
Judgment affirmed.
____________
19 Nev. 135, 135 (1885) State v. Slingerland
(No. 1298.)
THE STATE OF NEVADA, Respondent, v. GEORGE I.
SLINGERLAND, Appellant.
Criminal LawLarcenyIntentLucri CausaInstructions.The court instructed the jury that if they
believed that the defendant took the property with the intent to permanently deprive the owner of the
property, and without an intention to return the same, it was a felonious intent and the defendant is guilty:
Held, correct. It is not essential that the taking should be with a view to pecuniary profit.
IdemCredibility of Defendant's Testimony.Where a defendant in a criminal case offers himself as a witness
in his own behalf, the jury should give to his testimony all the credit to which it is entitled. In ascertaining
the extent of its credibility it is proper and necessary for the jury to consider the situation in which
defendant is placed.
InstructionCircumstantial EvidenceDegree of Certainty.The court instructed the jury that where the
evidence is entirely circumstantial, yet is not only consistent with the guilt of the defendant but inconsistent
with any other rational conclusion, the law makes it the duty of the jury to convict, notwithstanding such
evidence may not be as satisfactory to their minds as the direct testimony of credible eye witnesses. (2d
instruction referred to in opinion.) Held, correct.
IdemEvidence of Good Character.In reviewing an instruction as to the weight to be given to the evidence of
the good character of the defendant: Held, that upon the question of defendant's guilt or innocence juries
should be charged to consider all the evidence in the case, including that in relation to character, and if
therefrom they believed him guilty beyond a reasonable doubt, previous good character would not
authorize an acquittal.
IdemWhen Judgment will not be Reversed on Improper Instructions:Held, that although the instruction in
relation to the good character of the defendant as given was not proper, yet it should not reverse the
judgment because all the testimony, including his own, made him guilty, no matter how fair a character he
had previously borne.
The facts are sufficiently stated in the opinion and head notes.
Fitzgerald & Beatty, for Appellant:
I. The court erred in instructing the jury that the good character of defendant could only be
considered when the jury had a reasonable doubt of his guilt. (Field v. Columbet, 4 Saw. 523;
People v. Ashe, 44 Cal. 292; People v. Lamb, 2 Keys, 378; Fields v. State, 47 Ala. 603; Ros.
Cr. Ev. 97; 1 Greenl. Ev. 74.)
II. The court erred in giving the fourth instruction. The most essential element in larceny
is the intent of gain, lucri causa. (People v. Woodward, 31 Hun. 57; State v. Hawkins, 8 Port.
461; 33 Am. Dec. 294; Smith v. Shultz, 1 Scam. 490; 32 Am. Dec. 34; Wilson v. People, 39
N. Y. 459; U. S. Durkee, 1 McAll. 196; 2 Whart. Am. Cr. Law. Secs. 1796-1801.)
W. H. Davenport, Attorney General, and H. F. Bartine, for Respondent:
I. The instruction as to character correctly states the law as applicable to the testimony
given in this case.
Where the act charged is malum in se, is clearly proved or admitted, and no circumstance
of extenuation or justification appear, the evidence of good character has no tendency to
either prove or disprove any issue involved in the case, and should be entirely disregarded by
the jury. (Com. v. Hardy, 2 Mass. 317; State v. McDaniels, 8 S. & M. 401; Wesley v. State,
37 Miss. 351; U. S. v. Smith, 2 Bond, 323; U. S. v. Rondenbush, Bald. 514; U. S. v. Freeman,
4 Mason, 510; People v. Vane, 12 Wend. 82; State v. Brown (note), 3 Strob. 527; State v.
Wells, 1 Coxe, 428; People v. Cole, 4 Park. Cr. Rep. 35; People v. Milgate, 5 Cal. 127;
People v. Roberts, 6 Cal. 214; People v. Josephs, 7 Cal. 129; State v. Gleason, 1 Nev. 173;
State v. Pearce, 15 Nev. 191; People v. Kirby, 1 Wheel. Cr. C. 64; People v. Hammill, 2
Park, Cr. Rep. 223; Reg v. Davidson, 31 St. Tr. 217; Bennett v. State, 8 Hump. 118; See also
State v. Northrup, 48 Iowa, 583; People v. Bell, 49 Cal. 488; State v. McMurphy, 52 Mo.
251; Coleman v. State, 59 Miss. 484.)
II. The fourth instruction states a correct principle of law. The court did not err in omitting
to state that there must be lucri causa in order to constitute larceny. If property be taken with
intent to deprive the owner of it, the injury to him is just the same, whether the act be
prompted by a desire for gain or any other motive, and the purpose of the law is to protect the
owner in the enjoyment of his property. (Bish. on Cr. L. Secs. 842-8; Rex v. Morfit, Russ &
Ry. 307; Reg v. Jones, 1 Den. C. C. 188; Reg v. Privett, Id. 193; State v. Brown, 3 Strob. 508;
Keely v. State, 14 Ind. 36; Dignowitty v. State, 17 Tex. 521; Hamilton v. State, 35 Miss. 214;
Warden v. State, 60 Miss. 638; People v. Juarez, 28 Cal. 380; State v. Ryan, 12 Nev. 401.
Appellant was convicted of the crime of grand larceny. He appeals from the judgment, and
the order overruling his motion for new trial. He was accused and found guilty of stealing two
horses, two saddles, and a pair of spurs. He admitted that he took the property, and removed it
about five miles away. He said his object was to put the owner to all the expense and trouble
possible in order to find the property; that he had no idea of benefiting himself in any way, his
only object having been to get revenge.
I. The court instructed the jury that if they believed beyond a reasonable doubt that the
defendant took the property, as alleged in the indictment, with the intent to permanently
deprive the owner of the property, and without an intention to return the same, it was a
felonious intent and the defendant was guilty. It is claimed that this instruction is erroneous in
stating that the crime of grand larceny may be committed, although the taker of the property
alleged to have been stolen derives no benefit, and does not intend or expect to be benefited
therefrom. If one of the essential elements of larceny is an intention to profit by the
conversion of the property, then the instruction under consideration was incorrect. A court
cannot instruct a jury that certain facts constitute a certain offense, unless every essential fact
necessary to constitute the offense be included in the statement. (Weston v. U. S., 5 Cranch,
C. C. 494.) Although the authorities upon this question are somewhat conflicting, those
sustaining the instruction greatly preponderate, and in our opinion they are upheld by good
sense and sound reason.
ponderate, and in our opinion they are upheld by good sense and sound reason.
In State v. Ryan, 12 Nev. 403, this court acknowledged the correctness of the principle that
where the intent is to deprive the owner of his property, it is not essential that the taking
should be with a view to pecuniary profit.
In Dignowitty v. State, 17 Tex. 530, the court said: But, to constitute the felonious intent,
it is not necessary that the taking should be done lucri causa; taking with an intention to
destroy will be sufficient to constitute the offense, if done to serve the offender, or another
person, though not in a pecuniary way.
And, said the court, in Hamilton v. State, 35 Miss. 219: The rule is now well settled that
it is not necessary, to constitute larceny, that the taking should be in order to convert the thing
stolen to the pecuniary advantage or gain of the taker, and that it is sufficient if the taking be
fraudulent, and with an intent wholly to deprive the owner of the property. (Roscoe, Cr. Ev.
533, 2d Ed.; Cabbage's Case, Russ. & R. 292; Rex v. Morfit, Id. 308.) And it is said by the
commissioners of criminal law in England that the ulterior motive by which the taker is
influenced in depriving the owner of his property altogether, whether it be to benefit himself
or another, or to injure any one by the taking, is immaterial.' The rule we consider to be in
accordance with the principle on which the law of larceny rests, which is to punish the thief
for wrongfully and feloniously depriving the owner of his property. The reason of the law is
to secure a man's property to him, and that is to be carried out, rather by punishing the thief
for feloniously depriving him of it, than for wrongful gain he has made by the theft. The
moral wrong is founded in the wrongful and felonious deprivation.
Sustaining the same doctrine in Warden v. State, 60 Miss. 640, the court said: It seems to
meet the approval, also, of most of the modern writers on criminal law, and to be sanctioned
by many cases, both English and American.
In State v. South, 28 N. J. Law 28, the question was whether the fraudulently depriving the
owner of the temporary use of a chattel is larceny at common law; whether the felonious
intent or animus furandi may consist with an intention to return the chattel to the owner. It
was held that if the property is taken with the intention of using it temporarily only, and
then returning it to the owner, it is not larceny;
erty is taken with the intention of using it temporarily only, and then returning it to the owner,
it is not larceny; but if it appear that the goods were taken with the intention of permanently
depriving the owner thereof, then it is larceny. And in State v. Davis, 38 N. J. Law, 177, the
same court adhered to the doctrine announced in South's Case, and said: There has been no
case decided in this state that has held that where the taker had no intention to return the
goods, that the taking was merely temporary. Nor is there anything that should control the
action of the jury, or the court acting as such under the statute, when they find that the party
having no such intent is guilty of larceny. It would be a most dangerous doctrine to hold that a
mere stranger may thus use and abuse the property of another, and leave him the bare chance
of recovering it by careful pursuit and search, without any criminal responsibility in the
taker.
In Berry v. State, 31 Ohio St. 219, and Com. v. Mason, 105 Mass. 166, it was held that the
wrongful taking of the property of another, without his consent, with intent to conceal it until
the owner offered a reward for its return, and for the purpose of obtaining the reward, was
larceny of the property taken. (And see, also, People v. Juarez, 28 Cal. 380; State v. Brown, 3
Strobh. 516; Keely v. State, 14 Ind. 36; Rex v. Cabbage, Russ. & R. 292; Rex v. Morfit, Id.
307; note a to Holloway's Case, 1 Denison, Cr. Cas. 376.) Counsel for appellant places great
reliance upon State v. Hawkins, 8 Port. (Ala.) 461, wherein it was held that taking a slave in
order to set her free was not larceny; but the doctrine of that case has been repudiated by the
same court in the case of Williams v. State, 52 Ala. 413, decided in 1875, wherein it was said:
The second charge was also properly refused. To constitute the offense of larceny, it is not
necessary the taking should have been with an intent to appropriate the goods to the use or
benefit of the person taking. The criminal intent consists in the purpose to deprive the owner
of his property. No benefit to the guilty agent may be sought, but only injury to the owner.
Reliance is also placed upon section 1783 of Wharton's American Criminal Law, where
the author says: In this country there has been some reluctance to accept this supposed
modification of the common-law definition of larceny, and in one or two cases it has been
expressly rejected. Thus, it has been declared not to be larceny, but malicious mischief, to
take the horse of another, not lucri causa, but in order to destroy him," citing State v.
Council, 1 Tenn. 305;
been declared not to be larceny, but malicious mischief, to take the horse of another, not lucri
causa, but in order to destroy him, citing State v. Council, 1 Tenn. 305; Com. v. Leach, 1
Mass. 59; People v. Smith, 5 Cow. 258; and State v. Wheeler, 3 Vt. 344, as authorities for the
statement.
It will be found, upon an examination of those cases, that no one of them sustains the text.
Mr. Stephen, in his general View of the Criminal Law of England, 127, says: It is larceny
to take and carry away a personal chattel from the possession of its owner with intent to
deprive him of the property.
Mr. Roscoe, in his Criminal Evidence, 631, says: Eyre, C. B., in the definition given by
him, says, larceny is the wrongful taking of the goods with intent to spoil the owner of them
lucri causa;' and Blackstone says, the taking must be felonious; that is, done animo furandi,
or, as the civil law expresses it, lucri causa.' The point arrived at by these two expressions,
animo furandi and lucri causa, the meaning of which has been much discussed, seems to be
this: That the goods must be taken into the possession of the thief with the intention of
depriving the owner of his property in them. * * * Property is the right to the possession,
coupled with an ability to exercise that right. Bearing this in mind, we may perhaps safely
define larceny as follows: the wrongful taking possession of the goods of another with intent
to deprive the owner of his property in them. (And see Archb. Crim. Pr. & Pl., Pomeroy's
notes, 1185; Barb. Crim. Law, 174; 2 Bish. Crim. Law, 848.)
Against these authorities, besides Hawkins' case and Wharton, above cited, we are referred
to four cases, viz.: People v. Woodward, 31 Hun. 57; Smith v. Schultz, 1 Scam. 490; Wilson
v. People, 39 N. Y. 459; and U. S. v. Durkee, 1 McAll. 196. In Woodward's case there was an
able and exhaustive dissenting opinion by one of the three justices, and no authorities are
cited in support of the majority opinion except Whart. Crim. Law, Sec. 1784, and certain
cases therein referred to, which do not sustain the text. In Smith v. Schultz the court only says:
Every taking of the property of another without his knowledge or consent does not amount
to larceny. To make it such, the taking must be accompanied by circumstances which
demonstrate a felonious intention.
But the court does not say there can be no felonious intent except there be a taking lucri
causa. In Holloway's Case, Park, B., defined felonious to mean that there is no color of
right or excuse for the act, and the intent must be to deprive the owner, not temporarily, but
permanently, of the property. In Wilson's Case it was only decided that the felonious intent
must exist at the time of the taking. In Durkee's Case the court instructed the jury as follows:
1. That if you believe, from the evidence, that the prisoner took and carried away the arms
with the intent to appropriate them, or any portion of them, to his own use, or permanently
deprive the owner of the same, then he is guilty. 2. But if you shall believe that he did not
take the arms for the purpose of appropriating them, or any part thereof, to his own use, and
only for the purpose of preventing their being used on himself or his associates, then the
prisoner is not guilty.
There is nothing in the instructions quoted opposed to the doctrine we are endeavoring to
maintain, although there is much in the address to the jury which does not accord with our
ideas of the law. To constitute larceny the taking must be felonious, and it is so when the
intent is to permanently deprive the owner of his property against his will. The court did not
err in giving the fourth instruction.
2. Objection is made to the third instruction, which is substantially the same as was given
in Hing's Case, 16 Nev. 310. (See, also, People v. Cronin, 34 Cal. 203, and People v.
Morrow, 60 Cal. 147.) When a defendant in a criminal case offers himself as a witness in his
own behalf, it is the duty of the jury to give to his evidence all the credit to which it is
entitled; but in ascertaining the extent of its credibility, it is proper and necessary to consider
the situation in which he is placed. A person accused of a crime may speak the truth, and it is
for the jury to say, in view of all the facts, whether or not he has done so, in the whole or in
part. They should give proper weight and effect to all of his evidence, if they are convinced of
its truth, or so much thereof as, in their best judgment, is entitled to credit. Such, we think, is
the natural construction to be placed upon the instruction under consideration.
3. The second instruction was correct. (People v. Cronin, 34 Cal. 191; State v. Nelson, 11
Nev. 341.)
4. The first instruction given on behalf of the state is as follows: The court instructs the
jury that the good character of the defendant can only be taken into consideration when the
jury have a reasonable doubt as to whether the defendant is the person who committed the
offense with which he is charged; and if you believe from the evidence that the defendant is
guilty, then if the defendant has proved a previous good character, such good character would
be of no avail to him, and would not authorize an acquittal.
The first part of this instruction was copied from that given in People v. Gleason, 1 Nev.
176, and in that case upheld by this court. The last portion was taken from the court's
instruction in Levigne's Case, 17 Nev. 445, given in connection with two other instructions
requested by the defendant. In that case we said: By the three instructions under
consideration the jury were charged to consider all the testimony admitted in the case,
including that in relation to previous good character, and if, from the whole, they believed the
defendant guilty, then they should not acquit him, although he had borne a good character
previously.
Such we declared was the true rule. It was consonant with reason, and upheld by the latest
and best authorities.
The instruction given and upheld in Gleason's case we do not like; and we did not say that
the court's instruction in Levigne's case would have been correct by itself alone. We only
declared it correct as it was given, in connection with the two requested by defendant. We do
not like the first instruction given in this case. All in all, it conveys to our minds the idea that
evidence of the defendant's good character could not be considered, unless, from the other
evidence admitted, the jury had a reasonable doubt of the defendant's guilt. Upon the question
of guilt or innocence, they should have been charged to consider all the evidence in the case,
including that in relation to character, and if therefrom they believed him guilty beyond a
reasonable doubt, previous good character would not authorize an acquittal.
But although the instruction in question was not proper, it ought not, in this case, to
reverse the judgment, because the undisputed facts, his own testimony included, made him
guilty, no matter how fair a character he had previously borne. He admitted the taking, and
did not claim that he intended to return the property to the owner at any time.
return the property to the owner at any time. It was not to be returned, and the owner was not
to get it back, unless, after much trouble and expense, he might succeed in finding it. After
the larceny was committed, he told the owner that he had taken the property, and where it
could be found; but this was done in consideration of a promise not to prosecute him for
taking another horse, not voluntarily. The jury must have found that appellant intended to
deprive the owner permanently of his property, for they were instructed to acquit him if he
took it with the intent to hide the same and make trouble for the owner, and then return it, and
not to derive any benefit therefrom. If appellant had taken the property just as he did, for the
purpose of gain to himself, rather than out of revenge, it is conceded that he would have been
guilty of the offense charged. In that case, no amount of testimony establishing former good
character could have induced a doubt of guilt. In view of our conclusion upon the fourth
instruction, the same is true now.
Judgment and order appealed from affirmed.
____________
19 Nev. 143, 143 (1885) Wright v. Smith
[No. 1211.]
JANE WRIGHT, Appellant, v. W. T. SMITH, Respondent.
Estates of Deceased PersonsCommunity PropertyWhen No Administrator is NecessaryStat. 1881, 103,
Construed.Under the statute of 1881 the title to community property after a man's death is vested in the
widow, subject to the payment of the debts, and if the widow pays all the indebtedness legally due from
the estate, then the community property is not subject to administration.
Idem.Held, upon a review of the facts that there was no legal presumption either for or against the existence of
debts and that the court had no right to appoint an administrator without satisfactory proof that the
property was subject to administration and that the appointment would accomplish some useful end.
Appeal from the District Court of the Fourth Judicial District, Elko County.
Fitzgerald & Beatty, and R. M. Clarke, for Appellant:
I. Jurisdiction in probate matters is conferred by statute, and is special and limited, and
will not be presumed.
and is special and limited, and will not be presumed. (Grimes' Estate v. Norris, 6 Cal. 621;
Smith v. Andrews, 6 Cal. 652; Clarke v. Perry, 5 Cal. 58; Deck v. Gerke, 12 Cal. 436;
Townsend v. Gordon, 19 Cal. 205; 1 Comp. L. 538.)
II. Administration is not a matter of absolute right or public necessity. The heirs (in this
case, Jane Wright) may pay the debts and take the property under the statute of descent.
(Babbitt v. Bowen, 32 Vt. 437.)
III. If there are no debts, there need be no administration. (Stat. 1881, 103; Stat. 1882, 16;
Duncan v. Veal, 49 Tex. 603; Succession of Esther Poret, 26 L. Ann. 157; Myrick's Prob.
Rep., 208.)
[No brief on file for respondent.]
This is an appeal from an order revoking the appointment of Jane Wright, administratrix,
and appointing W. T. Smith administrator of the estate of A. W. Gedney, deceased.
On the twenty-second day of June, 1882, A. W. Gedney, a resident of Elko county,
Nevada, died intestate, leaving an estate situate in said county, consisting of real and personal
property. He left, also, a widow, and several minor children, surviving him. Jane Gedney
petitioned the court to be appointed administratrix. She was appointed January 6, 1883, and
she qualified as such January 13, 1883. The estate was appraised at twenty-eight thousand
four hundred and four dollars and fifty-one cents, and notice to creditors given. December 5,
1883, Jane Gedney married John T. Wright, and January 16, 1884, she filed a petition in the
name of Jane Wright, praying that her former letters be adjudged invalid by reason of her
marriage, and that new letters be issued to her in the name of Jane Wright. On the
twenty-fourth of April, 1884, her petition was granted, and the court ordered that letters be
issued to Jane Wright, upon her qualifying by taking the proper oath, and filing a bond in the
sum of forty-seven thousand two hundred and ninety-two dollars. She did not take the oath or
give the bond required, and new letters were not issued.
On the twenty-second of July, 1884, W. T. Smith, respondent herein, petitioned the court
for letters of administration.
In his petition he stated the facts above mentioned, and, in addition, that he was a citizen of
the United States, over twenty-one years of age, and a resident of Elko county; that a claim of
S. B. Talbot for the sum of three thousand, six hundred and ninety-six dollars against said
estate had been presented to Jane Gedney, administratrix, allowed, and paid; that, except as
stated in the petition, the estate had not been administered upon, and that the greater part
thereof was then in the possession of said Jane Wright. A citation was issued requiring Jane
Wright to show cause before the court why she should not qualify as administratrix, or that
the order of April 24, 1884, be annulled, and the said W. T. Smith appointed administrator.
At the time set for hearing she appeared by her attorneys and filed her objections to
Smith's appointment, in substance as follows: That she was the surviving wife of deceased,
A. W. Gedney; that ever after their marriage, until the death of her said husband, she lived
and cohabited with him; that said A. W. Gedney died intestate in Elko county, Nevada, June
26, 1882, leaving both real and personal property in said county; that within a year after the
death of said deceased she settled and paid all of the lawful debts due from, and all claims
against, said estate; that all of said property was common property, and no part of it was the
separate estate of deceased; that by reason of the above facts, said property was not subject to
administration; that the petition of said W. T. Smith did not show facts sufficient to entitle
him to letters of administration, because it nowhere appeared therefrom that the property of
A. W. Gedney was subject to administration, or was the separate property of said deceased, or
that it was not exempt from execution, or that there were any debts against said estate, or that
said Smith had any interest in said estate, or was a person entitled to letters of administration.
The facts alleged in Smith's petition were proven to the satisfaction of the court; but it was
not alleged or shown that any of the property was the separate property of Gedney, or that
there were any unsatisfied claims or demands against the estate, or that the petitioner was
creditor or heir, or had any interest in the estate. On the contrary, it was shown, by records
and papers on file, introduced by Smith and admitted without objection, that all of said
property belonged to the community.
community. Besides the fact just stated, the record shows that, after respondent had rested,
and the court had overruled appellant's objection to respondent's appointment upon the
showing made, appellant offered and endeavored to prove, by a witness then before the court,
that all the property of which A. W. Gedney died seized, belonged to the community. This
evidence was excluded, and appellant duly excepted. The court held that an administrator
should be appointed, although the entire property belonged to the community. Certainly this
was error, if appellant had paid all indebtedness legally due from the estate, or had secured
the payment of the same to the satisfaction of the creditors. (Stat. 1881, 103; Stat. 1883, 16.)
Under the statute of 1881, upon the death of A. W. Gedney, the entire community property
became appellant's without administration, although it was subject to all debts contracted by
Gedney during his lifetime, not barred by the statute of limitations; and if she paid all
indebtedness legally due from the estate, or secured the payment of the same to the
satisfaction of the creditors, then the community property was not subject to administration.
That statute was in force at the time of Gedney's death, and to its provisions must we look in
ascertaining her rights. Neither in his petition nor by his proofs did respondent show himself
entitled to letters. There were no facts before the court tending to show that further
administration was necessary, or that the property was subject to administration. Under the
statute the title to community property, subject to the payment of legal indebtedness, was in
appellant, and an administrator was not required to convey the title or distribute the estate.
The record shows that, upon the hearing of the said petition and the said objections
thereto, the said petitioner, to maintain the issues upon his part, introduced in evidence to the
court, without objection, the following records and papers on file in the matter of the estate of
said A. W. Gedney, deceased, following: The petition of said Jane Gedney to be appointed
administratrix of said estate, filed December 22, 1882. Said petition showed that * * * the
whole of said property, both real and personal, was the community property of said A. W.
Gedney and said Jane Gedney.
There was no allegation in respondent's petition, and no testimony tending to show that
any portion of it was the separate property of deceased.
separate property of deceased. On the other hand, in her written objections to respondent's
appointment, filed in court, appellant alleged that prior to her husband's death the entire
property belonged to the community; that upon his death it became her separate property, and
was not subject to administration, because she had settled and paid all lawful debts due from,
and all claims against, the estate.
We think, under the circumstances, respondent was bound by the contents of appellant's
former petition in relation to the character of the property; that is to say, that it belonged to
the community. It was introduced by him generally in the case without any limitation as to its
effect. So far as this application is concerned, he was bound by it. The evidence, and the only
evidence, then, before the court, upon this point, was that the property belonged to the
community prior to Gedney's death, when it became appellant's, subject to the payment of
Gedney's debts, but not to administration, if, prior thereto, appellant should pay the debts, or
secure them to the satisfaction of creditors. (Babbitt v. Bowen, 32 Vt. 439; Hargroves v.
Thompson, 31 Miss. 214; Stat. 1881, 103; Stat. 1883, 16. See, also, Thompson v. Thomas, 30
Miss. 155; Beckett v. Selover, 7 Cal. 238; Updegraff v. Trask, 18 Cal. 459; Hall v. Hall, 27
Miss. 459.)
Since the entire property belonged to appellant, the court must have presumed, in the face
of her allegation to the contrary, that there were unpaid debts; otherwise there was no
foundation for the order appointing respondent, for it was not asserted or proved that there
were any debts. Under the circumstances of this case there was no legal presumption either
for or against the existence of debts; and the court had no right to disturb appellant in the
enjoyment of her property, or burden the estate with useless expenditure, without satisfactory
proof that the property was subject to administration, and that the appointment of an
administrator would accomplish some useful end.
If there are no debts, respondent has no more right to administer upon this estate than he
would have had if Gedney had not have died. Such being the case, it was incumbent upon
him to show, not only the necessary jurisdictional facts, but also the fact of indebtedness.
Without assertion and proof of that fact, he had no right to ask for letters, or the court to
grant them.
grant them. (Succession of Esther Poret, 26 La. Ann. 158; Duncan v. Veal, 49 Tex. 610.) The
opposition to respondent's appointment should have been sustained.
That portion of the order appealed from appointing W. T. Smith administrator of the estate
of A. W. Gedney, deceased, is reversed, and his application denied, at the cost of respondent.
____________
19 Nev. 149, 149 (1885)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
JULY TERM, 1885.
____________
19 Nev. 149, 149 (1885) Edgecomb v. His Creditors
[No. 1197.]
EZEKIEL EDGECOMB, Respondent, v. HIS CREDITORS,
Appellants.
AppealSeveral OrdersOne SubjectUndertaking on Appeal.An appeal was taken from several different
orders, all relating to the question whether certain property was exempt from execution, and but one
undertaking was given: Held, that the several orders must be treated and considered as one order upon the
question involved, requiring but one undertaking to perfect the appeal.
ExecutionExempt PropertyOther LaborerLivery Stable KeeperStatute.In construing the statute of
exemptions (1 Comp. Laws, 1282): Held, that the business of a livery stable keeper is plainly
distinguishable from that in which cartmen, hucksters, peddlers or teamsters are engaged, and that a livery
stable keeper is not another laborer within the meaning of that term as used in the statute exempting
property from execution.
(Leonard, J., dissenting.)
Trenmor Coffin and James D. Torreyson, for Appellants:
I. It cannot be inferred that a livery stable keeper, so different and distinct in business and
occupation from the classes specified in the statute, was intended to be covered by the general
words, or other laborer. (City of St. Louis v. Laughlin, 49 Mo. 562; Grumley v. Webb, 44
Mo. 444; Sedg. on Stat. and Cons. 360, note a; State v. McGarry, 21 Wis. 496; White v.
Ivey, 34 Ga. 198; Brusie v. Griffith, 34 Cal. 307; U. S. v. Irwin, 5 McLean, 184; McIntyre v.
Ingraham, 35 Miss. 25; 1 Abb. Law Dic. 418; 1 Bouv. Law Dic. 460; Rawlings v. Jennings,
13 Ves. 46; Hotham v. Sutton, 15 Ves. 320; Sandiman v. Breach, 7 Barn. & Cres. 96;
Williams v. Golding, 1 Law Rep. C. P. 73-78; Calhoun v. Knight, 10 Cal. 393; Dove v.
Nunan, 62 Cal. 399; Burgess v. Everett, 9 Ohio Stat. 425; Abercrombie v. Alderson, 9 Ala.
985; Corp v. Griswold, 27 Iowa, 379.)
II. Even conceding that Edgcomb might be held to be one of the persons mentioned in
sub-division six, 1 Comp. L. 1282, the close carriage claimed as exempt is not of the class of
property mentioned in the statute. (Quigley v. Gorham, 5 Cal. 418; Favers v. Glass, 22 Ala.
624; Gordon v. Shields, 7 Kan. 320; Ames v. Martin, 6 Wis. 361; Robert v. Adams, 38 Cal.
383; Elder v. Williams, 16 Nev. 420.)
I. The appeal should be dismissed, because there is only one notice of appeal, one
undertaking on appeal, one statement on appeal and one transcript; and an attempt is made to
appeal from several separate and distinct orders. (White v. Appleton, 14 Wis. 193; People v.
Center, 61 Cal. 194; Skidmore v. Davies, 10 Paige, 317; Sweet v. Mitchell, 17 Wis. 125;
Hayne on N. T. & A. 644-6.)
II. The property in question is exempt from execution and was properly set apart by the
court. (1 Comp. Laws, 1282; Wilcox v. Hawley, 31 N. Y. 648; Stewart v. Brown, 37 N. Y.
351; Mosely v. Anderson, 40 Miss. 54;
Mosely v. Anderson, 40 Miss. 54; Gillman v. Williams, 7 Wis. 337; Rodgers v. Ferguson, 32
Tex. 533; Nichols v. Claiborne, 39 Tex. 363; Bevan v. Hayden, 13 Iowa, 125; Stewart v.
Welton, 32 Mich. 56; Thomp. on Hom. & Ex. 734, 760, 805, 870, 873; Brusie v. Griffith, 34
Cal. 302; Forsyth v. Bower, 54 Cal. 639; Dove v. Nunan, 62 Cal. 400.)
The appeal in this case is taken from an ex parte order made in said matter on the eighth
day of March, A. D. 1884, by the judge of said court, setting apart for the use and benefit of
said insolvent and his family, as exempt from execution, two gray horses and their harness,
and one close carriage; and also * * * from two certain orders made * * * on the thirty-first
day of May, A. D. 1884, finally exempting and setting apart said horses, harness, and carriage
for the benefit of said insolvent and his family as exempt from execution; and denying said
creditors' motion to vacate and set aside said ex parte order, and sustaining said insolvent's
demurrer to said creditors' motion, and denying so much of said assignee's petition for
authority to sell the property of said insolvent, as prayed for authority to sell said two gray
horses and their harness, and said close carriage.
Respondent moves to dismiss this appeal on the ground that it is taken from several
different orders, and there is but one undertaking on appeal. This motion must be denied. It
was not necessary to specify all the orders and rulings of the court declaring that the property
in question was exempt from execution. An appeal from the order made on the thirty-first of
May, finally exempting and setting apart said horses, harness, and carriage, would have been
sufficient to present the only question involved in this appeal. But the fact that all the rulings
of the court upon this question were inserted in the notice of appeal (including some orders
that were not appealable) does not change the character of the appeal. All the orders relate to
the question whether the property specified is or is not exempt from execution, and they must
be treated and considered as one order upon that subject, requiring but one undertaking to
perfect the appeal. The record shows: That said Ezekiel Edgecomb is, and for more than
twenty years last past has been, a livery-stable keeper, and for many years prior to the filing
of his said petition was engaged in the business of keeping a livery stable in Carson City,
Nevada;
to the filing of his said petition was engaged in the business of keeping a livery stable in
Carson City, Nevada; that during all of said time he kept numerous horses, carriages, buggies,
and other vehicles of his own, suitable for carrying passengers and pleasure-seekers, for the
purpose of hiring them or letting them to the public, and also cared for and stabled numerous
horses for other persons; that during said time said Edgecomb has frequently and habitually
used said close carriage, and said horses, and their harness, by using and driving them in
person for the purpose of carrying persons about the city of Carson, for the purpose of making
social visits and calls, and for the purpose of carrying person to and from funerals and
weddings, and for the purpose of carrying persons to and from all kinds of social gatherings,
theaters, concerts, and to and from the railroad depot with light baggage; and that he
appropriated the proceeds of such labor and earnings by and with said horses and vehicle to
the support of himself and family, and thereby habitually earned a part of his living for
himself and family.
The statute under which respondent's claim of exception is based, reads as follows: The
following property shall be exempt from execution: * * * two oxen, two horses, or two
mules, and their harness, and one cart or wagon, by the use of which a cartman, huckster,
peddler, teamster, or other laborer habitually earns his living. (1 Comp. L. 1282.)
Is respondent an other laborer within the meaning of that term as used in the statute?
The legislature evidently intended that the construction to be given to these words should be
confined to other laborers ejusdem generis with those named. Language, however general in
its form, when used in connection with a particular subject-matter, must be presumed to be
used in subordination to that matter, and should be construed and limited accordingly. It is
not pretended that respondent comes within any class named in the statute. In order to be
entitled to the benefits of the exemption law, he must therefore, show that he was engaged in
some business in which, by the use of his horses, harness, and carriage, he habitually earned
his living. He has failed to do so. The record shows that his business was that of a livery
stable keeper, which is plainly distinguishable from that in which cartmen, hucksters,
peddlers, or teamsters are engaged. If the legislature had intended to include livery stable
keepers, that class would certainly have been named in the statute, as they are as well
known, and of an equal or superior class to those named.
certainly have been named in the statute, as they are as well known, and of an equal or
superior class to those named. It is evident that the words other laborer were not intended to
include the business of livery stable keepers.
A livery stable keeper is not a teamster, or entitled to the exemptions of a teamster, simply
because he drives his own team in carrying persons around town. Yet, in common speech, a
teamster is one who drives a team; but, in the sense of the statute, every one who drives a
team is not necessarily a teamster, nor is he necessarily not a teamster, unless he drives a team
continually. In the sense of the statute, one is a teamster who is engaged with his own team or
teams in the business of teaming; that is to say, in the business of hauling freight for other
parties, for a consideration, by which he habitually supports himself and family, if he has one.
While he need not, perhaps, drive his team in person, yet he must be personally engaged in
the business of teaming habitually, and for the purpose of making a living by that business. If
a carpenter, or other mechanic, who occupies his time in labor at his trade, purchases a team
or teams, and also carries on the business of teaming by the employment of others, he does
not thereby become a teamster in the sense of the statute. So of the miner, farmer, doctor and
minister, (Brusie v. Griffith, 34 Cal. 306), or livery stable keeper.
In Dove v. Nunan, the plaintiffs were engaged in business as coal dealers, and used a team,
consisting of two horses and a wagon, by hauling coal and other commodities for other
people for hire, and the proceeds therefrom were expended in their support. They also
occasionally used the team in hauling coal and wood from their own coal-yard to the place
where they retailed the coal. Upon these facts the court said: The fact that the plaintiffs used
the horses and wagon in question as teamsters for hire, and that they expended the money
thus received in support of themselves and their families, did not exempt the property from
execution. In order to entitle a party to claim as exempt from execution two horses, * * * he
must show that he is a cartman, * * * huckster, peddler, teamster, or other laborer, and that he
habitually earns his living by the use of such horses. (62 Cal. 400.)
It is a matter of common knowledge that the particular business upon which respondent
relies is incidental to and connected with the general business of livery-stable keepers,
and unless all livery-stable keepers are entitled to have two horses and their harness and
one wagon exempt, respondent is not entitled to such exemption.
ness upon which respondent relies is incidental to and connected with the general business of
livery-stable keepers, and unless all livery-stable keepers are entitled to have two horses and
their harness and one wagon exempt, respondent is not entitled to such exemption. His
business was that of a livery-stable keeper and nothing else. His character as a livery-stable
keeper was not changed by the fact that the team in question was only used for the particular
purpose specified, or from the fact that respondent, in person, always drove the team. If
respondent had been engaged in a business that entitled him to claim the exemption, the
property would be exempt, although the horses and carriage had been occasionally let for hire
to other parties, and would also be exempt, although respondent employed other persons to
occasionally drive the team.
The rulings of the district court exempting the property from execution are hereby set
aside, and the cause remanded to the district court for such further action as may be necessary
in accordance with this opinion.
Leonard, J., dissenting:
I think the judgment of the court below should be affirmed. As to the carriage, it is claimed
by counsel for appellant that this court is bound to follow the case of Quigley v. Gorham, 5
Cal. 418, wherein it was decided that, in the statute, of which ours is a copy, the term
wagon' is intended to mean a common vehicle for the transportation of goods, wares and
merchandise of all descriptions, and that a hackney coach, used for the conveyance of
passengers, is a different article, and does not come within the equity or literal meaning of the
act. This court has frequently recognized and followed the well-established rule, subject,
however, to equally well-established exceptions, that, in adopting a statute from a sister state,
the legislature is presumed to have intended to adopt it as construed by the highest court of
that state. One of the exceptions to the rule stated, arises when the construction placed upon
the statute in a sister state is inconsistent with the spirit and policy of our own laws.
(McCutcheon v. People, 69 Ill. 605; Cole v. People, 84 Ill. 218; Streeter v. People, 69 Ill.
595; Rigg v. Wilton, 13 Ill. 15; Campbell v. Quinlin, 3 Scam. 288; Jamison v. Barton, 43
Iowa, 285.)
It is the policy of our constitution and laws to allow debtors, within reasonable limits, to
retain those things that are necessary to enable them to enjoy the necessary comforts of
life, and to carry on their usual employments.
within reasonable limits, to retain those things that are necessary to enable them to enjoy the
necessary comforts of life, and to carry on their usual employments. (Elder v. Williams, 16
Nev. 423; Const. Art. 1, Sec. 14; 1 Comp. Laws, 1282.) It is within the spirit and policy of
our constitution and laws, and according to the almost universal practice of courts, to
construe exemption laws liberally. Wherever this rule or policy prevails, and it does not
clearly appear whether certain property is or is not embraced within the exempting statute, the
debtor will generally be allowed the benefit of the doubt, and suffered to retain the property.
(Freem. Ex. Sec. 208.) In the case of Quigley v. Gorham the strictest construction possible
was adopted. The word wagon was declared to have been used by the legislature in its
primary sense only. The constitution provides that, the privilege of the debtor to enjoy the
necessary comforts of life shall be recognized by wholesome laws exempting a reasonable
amount of property from seizure or sale for payment of any debts or liabilities hereafter
contracted. Of course, it is the duty of the legislature to declare the kind and amount of
property that shall be exempt; but, when that has been done, it is the duty of courts to carry
out the constitutional policy by including among the exempted articles anything which, by a
liberal construction of the statute, may be embraced by the words, and which must be saved
for the debtor's use in order to accomplish the object of the legislature.
I have no doubt that the legislature intended to exempt two animals, with their harness or
other equipments, and any suitable vehicle, by the use of which any person habitually earns
his living, and to the exercise of whose business such animals, etc., are necessary. No good
reason can be given why a carrier of passengers should not have the means of support as well
as the carrier of goods, wares, and merchandise. He is one of a class of persons whose living
depends upon the use of a team, and that class the legislature intended to protect by the statute
under consideration. To say that the carrier of passengers is not entitled to be protected
simply because the vehicle named is a wagon, is following the letter rather than the spirit of
the statute; it is considering the wording instead of the object of the statute. In view of the
liberal construction everywhere given to exemption laws under constitutions and statutes like
ours, the word wagon is sufficiently comprehensive to include all four-wheeled vehicles
used for the transportation of persons or things.
comprehensive to include all four-wheeled vehicles used for the transportation of persons or
things. (Freem. Ex., Sec. 228; Allen v. Coates, 29 Minn. 48; Rodgers v. Ferguson, 32 Tex.
533; Nichols v. Claiborne, 39 Tex. 363,)
Many analogous cases may be cited showing the spirit and policy of such statutes. In
Arkansas, where the statute extended the exemption to free white citizens, the word
citizen, as there used, was held to be equivalent to resident or inhabitant. (McKenzie v.
Murphy, 24 Ark. 155; and see Cobb v. Coleman, 14 Tex. 594.) Webster defines a team to
be two or more beasts harnessed together to the same vehicle for drawing; yet under the
term team, in exemption statutes, in numerous instances, a single animal has been held
exempt. In those cases the courts said the intent of the legislature was to protect the debtor in
the use of his means of making a living; and the intent that would exempt a whole team
would also exempt half. They followed the spirit rather than the letter of the statute. And so,
many courts have made the word team include the vehicle drawn by it, and the term
horse to include a saddle, bridle, stake-rope and martingale, although the latter articles were
not mentioned in the statute, upon the principle that an exemption of a horse carried with it
everything essential to its beneficial enjoyment.
In Mundell v. Hammond, 40 Vt. 641, two calves nine months old were saved to the debtor,
under a statute exempting a yoke of oxen or steers. In Mallory v. Berry, 16 Kan. 293, a wild
unbroken steer, twenty months old, was held exempt under a statute exempting a yoke of
oxen. In Favers v. Glass, 22 Ala. 624, a cart was held to include a four-wheeled wagon. In
Texas, under a statute exempting two horses, a horse and mule are exempt. (Allison v.
Brookshire, 38 Tex. 200.) In Tennessee, a jackass is exempt, under a statute exempting a
horse, mule, or yoke of oxen. (Richardson v. Duncan, 2 Heisk. 220; and see Webb v.
Brandon, 4 Heisk. 288; Freeman v. Carpenter, 10 Vt. 433; Wilcox v. Hawley, 31 N. Y. 655.)
Believing that the decision in question is opposed to the spirit and policy of our
constitution and laws, and that it does not express the intention of the legislature, I do not feel
bound to follow it. As I understand the decision of the court, the entire property in question is
held not to be exempt, because it is, in fact, a part of the livery-stable outfit, and
respondent, being a livery-stable keeper, is not one of the persons entitled to exemption,
since he is not, in the sense of the statute, either a "cartman, huckster, peddler, teamster,
or other laborer," although by the use of this property he habitually earned his living in
part, just as he did with the other property in the stable, I do not think it was any part of
the livery-stable, and I do think respondent is a laborer, in the sense of the statute, who
habitually earned his living by the use of this property.
it is, in fact, a part of the livery-stable outfit, and respondent, being a livery-stable keeper, is
not one of the persons entitled to exemption, since he is not, in the sense of the statute, either
a cartman, huckster, peddler, teamster, or other laborer, although by the use of this property
he habitually earned his living in part, just as he did with the other property in the stable, I do
not think it was any part of the livery-stable, and I do think respondent is a laborer, in the
sense of the statute, who habitually earned his living by the use of this property. Respondent
was a livery-stable keeper, because he kept horses and vehicles for the purpose of letting
them to the public for compensation, and he boarded horses for others. But the property in
controversy was not so used. He neither let nor offered to let it to others. So far as this team is
concerned, he was a private carrier of persons or passengers. (Redf. Carr. Sec. 19; Schouler,
Bailm. 590; Ang. Carr. Sec. 46.)
This team was set apart for a use entirely different from that to which the others were
put--as much so as it would have been if kept for the same purpose at another stable in a
different part of the town. If respondent had had this team only, or a dozen others like it, and
had used the one in question, or all, as he did this, no one could say he kept a livery stable. If
he had kept in his stable a span of horses simply, and only to haul merchandise from the
depot to stores, those horses would not have been a part of his livery stable, any more than a
yoke of oxen kept for the same purpose would have been. Livery-stable keepers often do
many things outside of that business, because it is convenient and profitable to do so.
There is a livery stable kept in Carson by men who also run a daily stage to Lake Tahoe.
The stage horses are kept at the stable, but they are used exclusively in stage work--a business
entirely foreign to livery business proper. Should a two-horse stage team be claimed as
exempt under the statute quoted in the court's decision, it does not seem to me that it could be
regarded as a part of the livery stable, or that the validity of a claim of exemption would
depend upon whether livery-stable keepers are entitled to an exemption.
There is a man in Carson who runs an express wagon. He carries trunks and packages to
and from the depot and elsewhere. He has two horses, their harness, and a wagon, by the use
of which he habitually earns his living. His team is now exempt.
exempt. Suppose he should buy out a livery stable, carry on that business, and besides, that of
expressman, with the team he now uses, keeping the express team at the stable. Now,
admitting for the present that as a livery stable keeper none of his livery teams would be
exempt, why would he not be as much entitled to claim exemption for his express team as he
was before purchasing the livery stable? Is he to be deprived of an expressman's exemption
simply because he is a livery stable keeper also, and because a livery stable keeper cannot
claim an exemption? It may be that the property in question would not have been exempt,
unless a livery stable keeper may claim exemption, if respondent had used it in part as livery
property--had let it for hire to other parties--and partly as he did use it. But, in view of the
liberal construction that should be given to exemption statutes, in deciding whether
respondent was a cartman, huckster, peddler, teamster, or other laborer, I insist that the test
should be the use to which he put this property.
Oftentimes a man is obliged, and he has always a right, to carry on different kinds of
business. He may be a carpenter and joiner and a painter, a wagon-maker and blacksmith, a
physician and dentist, a lawyer and minister. Whether persons so engaged in two different
kinds of business can claim an exemption for each occupation or profession need not be
discussed, because it is not shown that respondent claimed or had the benefit of any
exemption except the team in question, and such other property as is accorded to all debtors
regardless of their occupations. But the mere fact that a debtor carries on two or more kinds
of business or professions does not deprive him of all exemptions. Nor, under our statute,
must the exempted articles belong to the business in which he is principally engaged, as in
the case under the Michigan statute. (Morrill v. Seymour, 3 Mich. 67.) In this state, I think
that when a person engages in different pursuits, either of which, if pursuing that avocation
alone, would entitle him to an exemption, he may, at least, choose from which business the
articles exempted shall belong; and if he is engaged in two kinds of business, only one of
which entitles him to favor, he may claim the exemption given under that one, the same as
though he was engaged in no other. The fact that the use to which the property in dispute was
put is incidental to and connected with the general business of livery stable keepers,"
does not, as to this property, make him a livery stable keeper.
nected with the general business of livery stable keepers, does not, as to this property, make
him a livery stable keeper. By our statute a livery stable keeper is one who keeps horses or
carriages for rent or hire. (2 Comp. L. 3186, Stat. 1861, 71, Sec. 79.) Any person whose
business it is to keep horses for hire or to let, or to keep, feed, or board horses for others, shall
be regarded as a livery stable keeper. (14 U. S. Stat. 116.)
With this property respondent habitually earned his living in part, not as a livery-stable
keeper, but as a private carrier of persons and passengers, and it is just as much entitled to
exemption as it would have been if he had not run a livery stable with other property. If it is
true, as the court decides, that a livery-stable keeper is not entitled to an exemption, then that
fact is an additional reason in favor of the view I take; because otherwise, respondent will be
deprived of all instrumentalities of productive labor, while other laborers, who habitually earn
their living by the use of horses, oxen, or mules, and to the exercise of whose business such
animals are necessary, may enjoy property that is just as necessary for his support as it is to
theirs.
The manifest requirement of the constitution is that the exemption laws should be so
framed that all classes of debtors should, as nearly as may be, participate equally in their
benefits. We believe our exemption laws were framed and enacted in the spirit of that
requirement. Looking through these statutes we find no adequate provision in favor of
merchants or shop-keepers as a class, unless it is contained in the statute under consideration.
Their little stock in trade may be as indispensable to the support of their families as are the
tools of the mechanic or miner, the press and type of the printer, or the library of the lawyer.
Why should they not have the same protection as the others? And when we find language in a
statute which may fairly be construed as giving them the same protection extended to other
classes of debtors, why should not that construction be adopted? (Wicker v. Comstock, 52
Wis. 318.)
My opinion is that respondent, as a carrier of passengers, is entitled to the exemption
claimed, because, in the sense of the statute, he is a laborer who habitually earns his living
by the use of the property in dispute, although he is also a livery stable keeper, and as such
is not entitled to an exemption.
stable keeper, and as such is not entitled to an exemption. But I think, also, that if this
property is a part of the livery stable outfit, still respondent, as a livery stable keeper, is
entitled to the benefit of the statute. I agree with the court in saying that, in order to be
entitled to the benefit of the exemption law, respondent must show that he was engaged in
some business, in which, by the use of his horses, harness and carriage, he habitually earned
his living. It is not and cannot be said that a livery stable keeper does not fill this
requirement. Of all occupations there is none in which a man must so signally fail, if deprived
of the use of horses, harness and carriages, as that of a livery stable keeper. His entire
business depends upon their use; without them occupation is gone. True, he does not drive his
own team; but that is admitted to be unnecessary.
The words used by the debtor in obtaining the support of his family' are general, and
restricted to no particular mode of use. They are answered when the team is hired to others
for a compensation, which compensation goes into the general fund to support the family, as
well as where the debtor himself goes with the team as its driver, and adds the earnings of his
labor to that of the team. (Washburn v. Goodheart, 88 Ill. 231; Elder v. Williams, 16 Nev.
420.)
But it is said that, in the sense of the statute, respondent is not embraced by the words
other laborer, because a livery-stable keeper is not ejusdem generis with cartman,
huckster, peddler, and teamster. The four words used in the statute are not themselves
ejusdem generis except in one sense. They have but one characteristic common to all, which
is that they specify persons in whose business a team is absolutely essential. To that extent
only were they intended to be ejusdem generis. What other common feature is there between
a cartman or teamster, and a peddler? To the extent just stated a livery-stable keeper is
ejusdem generis with those named. In U. S. v. Lawrence, 13 Blatchf. 212, the defendant was
indicted for forgery under a statute which provided a penalty for the forging of any bid,
proposal, guaranty, official bond, public record, affidavit, or other writing. The court said:
The first position taken in support of the demurrer is, that the rule of construction, according
to which general words are restricted by particular words, should be applied to this statute,
and the meaning of the words 'other writings,' in this provision, restricted so as to exclude
from the operation of the statute such writings as are set forth in this indictment.
meaning of the words other writings,' in this provision, restricted so as to exclude from the
operation of the statute such writings as are set forth in this indictment. The rule here invoked
is not an arbitrary rule, but one of many resorted to for the ascertainment of the intent of the
legislator, when such intent is not otherwise apparent. To apply it to all general words would
often defeat the intention of the legislator, and such, in my opinion, would be the effect if
applied to this statute. Nothing in the language used, nor in the mischiefs intended to be
remedied, nor in the circumstances under which the statute was enacted, indicates that the
words other writings' were used in a restricted sense, but the contrary. Various writings are
mentioned, but these writings have no common object, nor any characteristic features
common to all, from which to infer an intention to restrict the effect of the provision to any
particular class of writings. The language of the statute furnishes, therefore, no criterion by
which to restrict its general words.
In Wicker v. Comstock, supra, the court construed a statute which exempted the tools and
implements, or stock in trade of any mechanic, miner, or other person, used or kept for the
purpose of carrying on his trade or business, not exceeding two hundred dollars in value. It
was claimed by the defendant that the term or other person should be interpreted to mean
only a person ejusdem generis; that is an artificer of some sort, and not a merchant merely.
The court said: * * * We conclude that the maxim noscitur a sociis is satisfied by restricting
the operation of the statute to those debtors who, although not artificers, must necessarily
keep and use a stock in trade in carrying on their business, and who are not protected by other
special provisions of the statute. This construction entitles the plaintiff to the exemption
claimed. (And see McAbe v. Thompson, 27 Minn. 135; Burgess v. Everett, 9 Ohio Stat.
426.)
The court is of opinion that livery stable keepers would have been named in the statute if
the legislative intent had been to include them. I do not think there was any effort or desire to
name all or nearly all whom the statute was intended to favor. It would not be difficult to
designate many, not mentioned, who come within the statute.
For the reasons above stated I dissent from the decision of the court.
____________
19 Nev. 162, 162 (1885) State v. Nevin
[No. 1212.]
THE STATE OF NEVADA, Respondent, v. DENNIS NEVIN,
et al., Appellants.
Public OfficersOfficial BondsLiability on, Where Money is StolenPublic officers who are intrusted with
public funds, and required to give bonds for the faithful discharge of their official duties, are not mere
bailees of the money, to be exonerated by the exercise of ordinary care and diligence; their liability is
fixed by their bond, and the fact that money is stolen from them, without any fault or negligence upon
their part, does not release them from liability on their official bonds.
Official BondCounty TreasurerFaithful Performance of DutyWhat Words Imply.A bond requiring a
faithful performance of official duty is as binding upon the principal and his surety as if all the statutory
duties of the officer were inserted in the bond.
County TreasurerObligation to Safely Keep Funds.Under the several provisions of the laws of Nevada it is
the duty of the county treasurers to safely keep the public money, and pay it out only as provided by law.
Official BondTime of Commencing Action onClose of Official Term.The county treasurer having
admitted the defalcation, and claimed the right to interpose the defense of a robbery of the funds as
inserted in his answer: Held, that the state was not compelled to wait until the close of the treasurer's term
of office before commencing an action upon his official bond.
W. E. F. Deal and Wm. Woodburn, for Appellants.
I. 2 Comp. Laws 2917, 2920 and 2980, contain all the provisions relating to the bonds of
county treasurers, and these, together with 2981, 2986 and 2991, contain the provisions
relating to the treasurer's duties with respect to the public money. For the performance of
these duties the treasurer is paid a salary. He is simply the custodian of the money. His duties
cannot, by his bond, be extended to include any liability other than that imposed by law, and
the law does not either directly or indirectly make him an insurer of the money in his custody.
The authorities which hold that a treasurer is liable for moneys lost without any fault or
negligence, do so upon the ground that that was the contact, and that the contract could only
be satisfied by payment.
19 Nev. 162, 163 (1885) State v. Nevin
could only be satisfied by payment. Later decisions, however, show a desire to make
exceptions to this rule. (U. S. v. Thomas, 15 Wall. 338; U. S. v. Humason, 6 Saw. 203.) The
condition of the bond is similar to the bond of an administrator and the same rule should
apply. (McNabb v. Wixom, 7 Nev. 171.)
The treasurer's degree of responsibility under his bond is simply that which the common
law imposes upon him as a bailee for hire. The statute does not extend or enlarge it. His
official bond does not increase his liability, but simply affords security for the performance of
his legal obligations, and if, without fault or negligence on his part, the county treasurer is
violently robbed of money belonging to the county, it is a valid defense pro tanto to an action
upon his official bond. (Cumberland v. Pennell, 69 Me. 357. See also Story on Bail. Secs. 25,
620; American Bank v. Adams, 12 Pick. 306; Union Bank v. Clossy, 10 Johns. 271; Albany v.
Dorr, 25 Wend. 440; Supervisors of Albany v. Dorr, 7 Hill, 584.)
II. No cause of action could arise upon the bond except upon failure to pay some demand
legally made. No failure to pay any legal demand is alleged in the complaint.
There could be no breach of the condition of the bond in any event, except upon failure to
pay some legal order or failure to turn over to the successor of the treasurer the moneys which
belonged in the treasury.
W. H. Davenport, Attorney General, and J. A. Stephens, District Attorney of Storey
County, for Respondent:
I. County treasurers are the custodians of the public moneys, and their chief duty is to
safely keep them, and only disburse them upon proper orders and within the modes prescribed
by law. (The authorities cited by counsel are referred to in the opinion of the court.)
II. The fact that the money was stolen without any fault upon the part of the treasurer is no
defense to an action upon his bond for the money. (Boyden v. U. S., 13 Wall. 17; U. S. v.
Morgan, 11 How. 154; U. S. v. Dashiel, 4 Wall. 182; U. S. v. Keehler, 9 Wall. 83; Bay. on
Sure. & Guar. 158; Whart. on Neg. Sec. 290; other authorities are cited in opinion.)
III. The courts have uniformly held that the duties of an administrator are not similar to
those of a treasurer, and his liability is not the same.
19 Nev. 162, 164 (1885) State v. Nevin
liability is not the same. (Fudge v. Durn, 51 Mo. 267; State v. Meagher, 44 Mo. 356; Foster
v. Davis, 46 Mo. 268; Township v. Powell, 67 Mo 397.)
This action was brought against the county treasurer of Storey county, and the sureties
upon his official bonds, to recover an amount of money admitted to be deficient in the
accounts of the county treasurer. The answer alleges that the money was forcibly taken by
robbers from the treasurer and carried away by irresistible force, without any fault or
negligence, or want of reasonable care or diligence in the preservation and care of said sum of
money, so that said sum of money was entirely lost to the treasury of said county, and no part
thereof has ever been recovered. The district court sustained a demurrer, which was
interposed to this answer, upon the ground that the facts stated did not constitute any defense
to the cause of action.
Was this ruling of the court correct? The conditions named in the official bonds is such
that if the above-bounden Dennis Nevin shall well and truly and faithfully perform and
execute the duties of treasurer of the county of Storey now required of him by law, and shall
well, truly, and faithfully execute and perform all the duties of such office of treasurer
required by any law to be enacted subsequently to the execution of this bond, then this
obligation to be void and of no effect, otherwise to be and remain in full force and effect.
Appellant insists that his responsibility under this contract is simply that which the common
law imposes upon a bailee for hire; that he is not in any sense an insurer of the moneys in his
custody, and should not be held responsible for the money that was stolen from him, and
taken by the use of irresistible force, without any negligence or fault or want of care on his
part. The great weight of the authorities upon this subject are adverse to the views contended
for by appellant. The general rule upon this subject is to the effect that public officers who are
intrusted with public funds, and required to give bonds for the faithful discharge of their
official duties, are not mere bailees of the money, to be exonerated by the exercise of ordinary
care and diligence; that their liability is fixed by their bond; and that the fact that money is
stolen from them without any fault or negligence upon their part, does not release them
from liability on their official bonds.
19 Nev. 162, 165 (1885) State v. Nevin
the fact that money is stolen from them without any fault or negligence upon their part, does
not release them from liability on their official bonds.
Recognizing the almost universality of this rule, appellant contends that the decisions
against him are founded upon the peculiar wording of the bonds, or provisions of the statute,
to the effect that the officer shall safely keep and pay over all moneys coming into his hands.
It is true that in U. S. v. Prescott, 3 How. 588; Com. v. Comley, 3 Pa. Stat. 374; State v.
Harper, 6 Ohio St., 610; Inhabitants of Hancock v. Hazzard, 12 Cush. 112, and other cases,
considerable stress is placed upon this language in the bond. Thus, in U. S. v. Prescott, the
court said: The condition of the bond has been broken, as the defendant Prescott failed to
pay over the money received by him when required to do so; and the question is whether he
shall be exonerated from the condition of his bond, on the ground that the money had been
stolen from him. The objection to this defense is that it is not within the condition of the
bond, and this would seem to be conclusive. The contract was entered into on his part, and
there is no allegation of failure on the part of the government. How, then, can Prescott be
discharged from his bond? He knew the extent of his obligation when he entered into it, and
he realized the fruits of this obligation by the enjoyment of the office. Shall he be discharged
from liability contrary to his own express undertaking? There is no principle upon which such
a defense can be sustained. The obligation to keep safely the public money is absolute,
without any condition, express or implied; and nothing but the payment of it, when required,
can discharge the bond.
But there are an equal or greater number of cases, like Muzzy v. Shattuck, 1 Denio. 233;
District T. v. Morton, 37 Iowa 550; Inhabitants v. McEachron, 33 N. J. Law 340; Boyden v.
U. S., 13 Wall. 17; and State v. Moore, 74 Mo. 413, where the condition of the bond, like the
one under consideration here, is for the faithful performance of the official duties, and the
conclusions of the courts are substantially the same as announced in U. S. v. Prescott. It is
apparent that a bond requiring a faithful performance of official duty is as binding upon the
principal and his sureties as if all the statutory duties of the officer were inserted in the bond.
19 Nev. 162, 166 (1885) State v. Nevin
In Indiana the statutory conditions in the bond are the same as required by the laws of this
state. In Halbert v. State, 22 Ind. 130, the treasurer's bond was, however, conditioned, not
only for the faithful performance of his duties as the statute required, but also that he should
pay over all moneys according to law that might come into his hands as such treasurer.
The court said: It is objected that the latter branch of the condition was unauthorized by
law, and therefore of no effect. But if the condition for the faithful performance of his duties
includes the paying over according to law of all moneys that might come into his hands as
such treasurer, nothing is added to the legal effect of the bond by the latter branch of the
condition. An examination of the various statutes bearing on the question shows clearly
enough that one of the duties of a county treasurer is to pay over according to law all moneys
that come into his hands as such treasurer; hence we shall consider the case as if the bond had
been conditioned simply for the faithful performance of the duties of the office.
In Boyden v. U. S., 14 Wall. 24, the court, referring to U. S. v. Prescott, said: The
condition of the receiver's bond in that case, it is true, was that the receiver should pay
promptly when orders for payment should be received, while the bond in the case before us is
conditioned that Boyden, the receiver, had truly executed and discharged, and should
continue truly and faithfully to execute and discharge, all the duties of said office according to
law. But the acts of congress respecting receivers made it their duty to pay the public money
received by them when ordered by the treasury department. * * * The bond, therefore, was an
absolute obligation to pay the money, and differing not at all, in legal effect, from the bond in
Prescott's Case.
What are the duties of a county treasurer under the statutes of this state? In addition to
requiring an oath and an official bond, it is, among things, provided that the county treasurer
shall receive all moneys due and accruing to his county, and disburse the same on the proper
orders issued and attested by the county auditor. (2 Comp. L. 2981.) He shall so arrange
and keep his books that the amount received and paid out * * * shall be exhibited in separate
accounts, as well as the whole receipts and expenditures by one general account. (2 Comp.
L. 2984.) He shall, at all times, keep his books and office subject to the inspection and
examination of the board of county commissioners, and shall exhibit the money in his
office to such board at least once a year, and as often as such board may require."
19 Nev. 162, 167 (1885) State v. Nevin
office subject to the inspection and examination of the board of county commissioners, and
shall exhibit the money in his office to such board at least once a year, and as often as such
board may require. (2 Comp. L. 2985.) He shall annually make complete settlements with
the board of county commissioners, * * * and shall, at the expiration of his term of office,
deliver to his successor all public moneys, books, and papers in his possession. (2 Comp. L.
2991.)
He shall assist the county auditor and county commissioners in counting the money in his
office, so that they may determine whether the funds, securities, and property of the county
are all on hand. (Stat. 1881, 21.) Under these provisions is it not manifest that it is the duty
of county treasurers to safely keep the public money and pay it out only as provided by law?
The fact that the county treasurer is required to receive money, and enter it in his cash book,
implies, without any other special regulation, that he is to keep it; and, being required to keep
it, it follows that he is to keep it safely. This is one of the duties of his office he has
undertaken faithfully to discharge. (Thompson v. Trustees, 30 Ill. 101.) Unless he safely
keeps it he could not exhibit it to the commissioners as required by law, and it could not be
counted. Neither could he deliver it to his successor in office. The duty to safely keep the
money is made absolutely clear by the provisions of the statute already quoted and referred to.
But there are also other provisions which are equally as strong and cogent. If any officer
charged with the safe keeping of public money converts the same to his own use, or loans any
portion of such money, he shall be guilty of embezzlement. (Stat. 1881, 82; Stat. 1883, 96.)
Could a county treasurer who converts the money to his own use claim that he is not an
officer who is charged with the safe keeping of the public money? It would be a stigma upon
the law and a disgrace to the judiciary to say that he could successfully maintain such a
defense. The statutes of this state in relation to the duties of county treasurers are almost
identical with those of Indiana. The supreme court of that state in Halbert v. State, supra,
after quoting the statutory provision, said: By these various provisions it is clearly seen that
it is the duty of a county treasurer to pay over the funds in his hands according to law, which
may be upon orders drawn upon him by the auditor, or to his successor in office, and a failure
to make such payment constitutes a breach in his bond, conditioned for the faithful
performance of his duties," and declare that the fact that the money was stolen from the
treasurer without his fault did not relieve him from the necessity of discharging the
obligation imposed upon him by his bond.
19 Nev. 162, 168 (1885) State v. Nevin
payment constitutes a breach in his bond, conditioned for the faithful performance of his
duties, and declare that the fact that the money was stolen from the treasurer without his
fault did not relieve him from the necessity of discharging the obligation imposed upon him
by his bond. This decision was followed in the subsequent cases of Morbeck v. State, 28 Ind.
86; Rock v. Stinger, 36 Ind. 348, and Linville v. Leininger, 72 Ind. 494.
In Iowa, where the statute is not as strong as in this state, the same doctrine is held and
applied to an officer upon a bond conditioned for the performance of his duties to the best of
his abilities. (District Tp. v. Smith, 39 Iowa 9) The statutes of this state are more stringent
than the statutes of Ohio, except in relation to the conditions of the bond. In State v. Harper,
6 Ohio Stat. 610, the court said: By accepting the office, the treasurer assumes upon himself
the duty of receiving and safely keeping the public money, and of paying it out according to
law. His bond is a contract that he will not fail, upon any account, to do those acts. It is, in
effect, an insurance against the delinquencies of himself, and against the faults and wrong of
others, in regard to the trust placed in his hands. He voluntarily takes upon himself the risks
incident to the office, and to the custody and disbursement of the money. Hence it is not a
sufficient answer, when sued for a balance found to have passed into his hands, to say that it
was stolen from him; for, even if the larceny of the money be shown to be without his fault,
still, by the terms of the law and of his contract, he is bound to make good any deficiency
which may occur in the funds which come under his charge.
We deem it unnecessary, upon this branch of the case, to specially refer to the numerous
other authorities where the same doctrines are announced, as it is absolutely clear, from those
already cited, that the distinction sought to be maintained by appellant, that the conditions of
the bond and the provision of the statute of this state should be construed differently from the
construction given in the decided cases, cannot be maintained. In many of the cases the courts
have given as an additional reason for their conclusions that a public officer cannot set up the
defense of a robbery of the public funds in their possession. Thus, in U. S. v. Prescott, supra,
Justice McLean, in delivering the opinion of the court, said: "The liability of the defendant,
Prescott arises out of his official bond, and principles founded upon public policy."
19 Nev. 162, 169 (1885) State v. Nevin
The liability of the defendant, Prescott arises out of his official bond, and principles founded
upon public policy.
After discussing Prescott's liability upon the bond, he adds: Public policy requires that
every depositary of the public money should be held to a strict accountability. Not only that
he should exercise the highest degree of vigilance, but that he should keep safely the moneys
which come to his hands. Any relaxation of this condition would open a door to frauds, which
might be practiced with impunity. A depositary would have nothing more to do than to lay his
plans and arrange his proofs so as to establish his loss without laches on his part. Let such a
principle be applied to our postmasters, collectors of customs, receivers of public moneys,
and others who receive more or less of the public funds, and what losses might not be
anticipated by the public?
In Com. v. Somly, supra, Gibson, C. J., in delivering the opinion of the court said: The
opinion of the court in the case of U. S. v. Prescott is founded on sound policy and sound law.
* * * The keepers of the public moneys, or their sponsors, are to be held strictly to the
contract, for if they were to be let off on shallow pretenses, delinquencies, which are fearfully
frequent already, would be incessant.
To the same effect are the decisions in District Tp. v. Morton, 37 Iowa, 553; U. S. v.
Watts, 1 N. Mex. 562; Commissioners Jefferson Co. v. Lineberger, 3 Mont. 231. The only
defenses recognized by any of the authorities in the United States at the present time, with the
exception of Cumberland Co. v. Pennell, 69 Me. 357, for the failure of a public officer
charged with the safe-keeping of the public funds to pay over the same, is where he is
prevented from doing so by the act of God or the public enemy, without any neglect or fault
on his part. We say the Maine case stands alone in its opposition to what it is pleased to term
the new-born policy of the law. In that case some reliance seems to have been placed upon the
case of Albany v. Dorr, 25 Wend. 440, but the principles of that case were repudiated in
Muzzy v. Shattock, supra, and hence we are authorized to say that the case in Maine is
unsustained by any other recognized authority in any of the courts of the United States,
federal or state.
In U. S. v. Thomas, 15 Wall. 341, it was held that the act of a public enemy in forcibly
seizing or destroying property in the hands of a public officer, against his will, and
without his fault, is a discharge of his obligations to keep such property safely, and of his
official bond, given to secure the faithful performance of that duty, and to have the
property forthcoming when required.
19 Nev. 162, 170 (1885) State v. Nevin
a public enemy in forcibly seizing or destroying property in the hands of a public officer,
against his will, and without his fault, is a discharge of his obligations to keep such property
safely, and of his official bond, given to secure the faithful performance of that duty, and to
have the property forthcoming when required. Bradley, J., in delivering the opinion of the
court, questions the correctness of some of the extreme views stated in some of the authorities
referred to, and claims that broader language was used than was necessary where the defense
set up was that the money was stolen, and says that a much more limited responsibility than
was indicated by the language in Prescott's Case would have sufficed to render that defense
nugatory. But there is no declaration of any legal principle contained in this opinion that
would justify a court in permitting such a defense as was sought to be interposed in this case.
It is said that public officers are bailees, but they are special bailees, subject to special
obligations. It is evident that the ordinary law of bailment cannot be invoked to determine the
degree of their responsibility.
In U. S. v. Humason, 6 Saw. 201, the court permitted the defense that the officer with the
money was on a steam-ship which was lost at sea, and the officer drowned and the money lost
in the Pacific ocean. The doctrines announced in that case are similar to the case of U. S. v.
Thomas, and do not in any manner militate against the general views we have expressed.
In State v. Moore, supra, the defendant, who was county treasurer, answered that he ought
not to be held upon his bond because Mississippi county, being overrun with tramps,
thieves, robbers, public enemies, the money could not be safely kept in said county, and that,
for the purpose of keeping it safely, he deposited it to his credit, as treasurer, in a bank in St.
Louis, which failed, whereby the money was wholly lost. The court said:
Such an answer as this, we think, is insufficient to shield defendant from liability, in any
view which can be taken of the case. If the obligation assumed by defendant in his bond, to
deliver over to his successor in office all money belonging to the county, can only be met or
discharged by making such delivery or payment, it is clear that the facts set up in the answer,
and admitted to be true, constitute no defense. That the above rule is the correct one,
governing in such cases, is established by the following authorities:
19 Nev. 162, 171 (1885) State v. Nevin
the above rule is the correct one, governing in such cases, is established by the following
authorities: (Citing State v. Powell, 67 Mo. 395, and the various decisions of the supreme
court of the United States.) If, on the other hand, under the rule laid down in the case of U.
S. v. Thomas, 15 Wall. 337, defendant is to be regarded as a bailee, and exempt from liability
to pay when the loss is occasioned by the act of God or a public enemy, he would still be
liable, under the facts stated in the answer, because they show that the loss was not
occasioned in either of these ways. The tramps, thieves, and robbers which it is alleged
overrun Mississippi county, while they are enemies to the peace and safety of the public and
social order, they are not public enemies in the legal sense of these words. By enemies is to be
understood public enemies with whom the nation is itself at open war; and not merely
robbers, thieves, and other private depredators, however much they may be deemed, in a
moral sense, at war with society. Losses, therefore, which are occasioned by robbery on the
highway, or by the depredations of mobs, rioters, insurgents, and other felons, are not deemed
losses by enemies within the meaning of the exception.
The action of the district court in sustaining the demurrer to the answer was correct.
The other positions taken by appellant relative to the time when the cause of action could
be commenced are wholly untenable. Having admitted the defalcation, and claimed the right
to interpose the defense inserted in his answer, the state was not compelled to wait until the
close of appellant's term of office before commencing an action upon his bond.
____________
19 Nev. 171, 171 (1885) Thompson v. Reno Savings Bank
[No. 1210.]
BANK, et al., G. W. HUFFAKER, Appellant.
Bank CorporationSubscription to Stock Payable Upon CallSuit by Creditor to Enforce Payment
of.Where subscriptions to the capital stock of a corporation are payable upon the call of the company,
it is not necessary that a creditor of such corporation must, before instituting suit to compel the payment
of such subscriptions, make an effort to compel the corporation to make the call.
IdemStatute of Limitations.Where subscriptions to the capital stock of a corporation are payable upon call,
and when no call is made, the obligation is a subsisting one, and the statute of limitations is not available
as a defense unless set in motion by some adverse action.
Thompson v. Reno Savings Bank, ante, 103, Affirmed.
William Webster and S. D. King, for Appellant:
I. The law requires the plaintiff in actions of this character to make substantial efforts to
obtain corporate action, before he is entitled to proceed himself against both the corporation
and its assumed debtor, and thus control the litigation. (Newby v. Oregon C. R. R., 1 Saw. 63;
Memphis v. Dean, 8 Wall. 64; Hawes v. Oakland, 14 Otto 450; Huntington v. Palmer, Id.
482; Dannmeyer v. Coleman, 8 Saw. 51; Pom. Eq. Jur., Sec. 1095.)
The demand of the Reno savings bank against Huffaker was barred at the commencement
of this action. No time or credit being extended by the terms of the contract, the whole
amount of subscription was then presently due, and the statute commenced to run at the very
date of the subscription. (Ang. on Lim., Secs. 95-96; 3 Par. on Con. 91; Stat. 1877, 115; Ang.
& Am. on Cor., Secs. 517-19.)
A contract payable when required, is equivalent to one payable when called for on
call, when demanded, and is, in law, a contract payable upon demand. (Dan. on Neg. In,,
Secs. 47, 89; Goshen v. Hurtin, 9 Johns. 217; Washington Ins. Co. v. Miller, 26 Vt. 77; White
v. Smith, 77 Ills. 351; 1 Par. on Con. 261; Ang. & Am. on Corp., Secs. 517, 518.)
John F. Alexander, for Respondent:
I. Suit in equity against directors, to compel assessment or call, has been superseded by
modern practice, which is directly against stockholders to compel payment of unpaid
subscriptions. (Thomp. Liab. Stock., Secs. 12, 16, 17, 258; Jones v. Jarman, 34 Ark. 323;
Harmon v. Page, 62 Cal. 448; Bartlett v. Drew, 57 N. Y. 587; Bush v. Cartwright, 7 Or. 329;
In re South Mountain, 7 Saw. 30; Hatch v. Dana, 101 U. S. 205; Holmes v. Sherwood, 3
McCrary, 405;
Sherwood, 3 McCrary, 405; Pollard v. Bailey, 20 Wall. 527; Haskins v. Harding, 2 Dill. 106;
Scoville v. Thayer, 105 U. S. 143.)
II. Appellant claims that there is no liability because no call was made, and yet that the
statute of limitations has barred recovery. The statute has then run against a liability which
never existed. There was nothing adverse in the positions of defendant and the so-called
bank, hence the statute did not run. (Payne v. Gardiner, 20 N. Y. 169; Howell v. Adams, 68
N. Y. 319; Harmon v. Page, supra.)
This is a suit in equity brought by respondent, a judgment creditor of the Reno Savings
Bank, against appellant Huffaker, to recover the amount of his unpaid subscription to the
capital stock of the bank. The suit is based upon facts corresponding in all essential respects
with those in Thompson v. Reno Savings Bank, ante, 103, and the decision in that case, in so
far as it is applicable, will be treated as decisive of this one, without further notice.
The first objection which we are asked to consider is that the complaint does not state a
case entitling the plaintiff to sue. It is urged that subscriptions to the capital stock of the
corporation are payable upon a call of the company, and that a creditor, to maintain a suit of
this nature, must, before instituting it, make an effort to induce the corporation to make the
call, and that no proper effort in this behalf has been made. In support of this view we are
referred to a number of cases holding that a stockholder or creditor of a corporation may,
under certain circumstances, and to prevent a failure of justice, institute and control a suit in
his own name involving the rights of the corporation, if it has refused to take action. In this
class of cases the right of action is primarily in the corporation, and it is entitled to the fruits
of the litigation; but the stockholder or creditor is allowed to sue in order to protect the rights
or property in which he has an interest. The principle involved in these cases has no
application to cases of the nature of the one at bar, which is of the nature of a creditors' bill,
brought by a plaintiff entitled in his own right to the relief which the judgment affords.
Another objection arises upon the order of the district court overruling the defense
interposed of the statute of limitations. Appellant's subscription to the stock was made in the
month of April, 1876, and it is said that a recovery thereon was barred within four years
thereafter. The statutes relating to corporations provide that the by-laws may prescribe the
times, manner and amounts in which payments of subscriptions to the capital stock may be
made. If the by-laws make no provision of this nature, and none was made by the by-laws of
the bank, the trustees have power to require payment of such installments as they may deem
proper. (Comp. L. Sec. 3398.) The trustees of the bank, being subscribers to its capital stock,
availed themselves of the privilege afforded by the statute, and made no call, except thirty per
cent. of the amount subscribed at the commencement of business operations. No action has
ever been taken by them to recover any portion of the remaining seventy per cent. of the
subscribed capital. This unpaid amount was a part of the capital of the bank allowed to
remain in reserve in the hands of the stockholders, but subject to call when needed. It was a
continuing liability of the subscribers, which neither the indulgence of the trustees nor mere
lapse of time could defeat. The statute of limitations is not available as a defense, because it
has not been set in motion by any adverse action, such as a call by the corporation upon
appellant to pay his subscription.
If the insolvency of the corporation set the statute in motion, sufficient time had not
elapsed when this suit was commenced to bar a recovery. (Allibone v. Hager, 46 Pa. St. 48;
Curry v. Woodward, 53 Ala. 371; Harmon v. Page, 62 Cal. 448; Thomp. Liab. Stock., Secs.
290, 291.)
____________
19 Nev. 174, 174 (1885) James v. Leport
[No. 1176.]
EDMUND JAMES, Appellant, v. ALEXANDER LEPORT,
Respondent.
AppealStatementSettlement ofAppeal Perfected Before Statement Filed.A party having the right to
appeal, may, within twenty days after the entry of the judgment or order, file his statement upon appeal
and have it settled by the judge, and, within the time limited, jurisdiction of the case
for that purpose is retained by the district court, even though the appeal be
perfected before such a statement is prepared.
appeal and have it settled by the judge, and, within the time limited, jurisdiction of the case for that
purpose is retained by the district court, even though the appeal be perfected before such a statement is
prepared.
PartiesDismissal of a DefendantWhen Not a Bar to Further Proceedings.The dismissal of a party
defendant at the instance of plaintiff, before trial, in a case where no counter claim has been made, is not
a judgment upon the merits and is not a bar to further proceedings against the dismissed defendant, upon
the cause of action stated in the complaint.
JurisdictionTitle to Real PropertyDemurrer.The district court has jurisdiction of an action involving the
question of title to real property. If the jurisdiction is irregularly acquired, objection upon this question
cannot be raised by demurrer.
Appeal from the District Court of the Second Judicial District, Ormsby county.
Robt. M. Clarke and N. Soderberg, for Appellant:
I. The statement was filed in time. (1 Comp. L. 1391, 1393; Connor v. Morris, 23 Cal.
447; Rew v. Barber, 2 Cow. 408; Witbeck v. Waine, 8 How. Pr. 433; Strong v. Hardenburgh,
25 How. Pr. 438; Warren v. Eddy, 13 Abb. Pr. 28; State v. Judge, 11 La. An. 728.)
II. The court erred in refusing James permission to bring in Kirman as a defendant.
(Tonnelle v. Hall, 3 Abb. Pr. 205; Davis v. Mayor, 2 Duer. 663; Johnston v. Neville, 68 N. C.
177; Polk v. Coffin, 9 Cal. 56; Dixon v. Dixon, 19 Iowa 512; Beals v. Cobb, 51 Me. 348;
Settembre v. Putnam, 30 Cal. 490; Grain v. Aldrich, 38 Cal. 514; Sturtevant v. Brewer, 17
How. Pr. 571.)
A. C. Ellis, for Respondent.
I. The statute contemplates that the preparation, filing and settlement of the statement
shall precede the appeal.
III. After the complaint was amended and verified and filed it took the place of all
preceding complaints, and became the complaint in the action, and the defendant's right to
demur thereto for any valid reason is undeniable. (Gilman v. Cosgrove, 22 Cal. 356; Jones v.
Frost, 28 Id. 246; Barber v. Reynolds, 33 Id. 497; Elder v. Spinks, 53 Id. 293; Kelly v.
McKibben, 54 Id. 193; Kentfield v. Hayes, 57 Id. 411; Thompson v. Johnson, 60 Id. 292;
McFadden v. Ellsworth M. & M. Co., 8 Nev. 57.)
IV. The dismissal of Kirman was fatal to plaintiff's case. (Cal. State T. C. v. Patterson, 1
Nev. 150; Merritt v. Campbell, 47 Cal. 542.)
1. The appeal having been perfected, appellant afterwards prepared and filed in the court
below the statement upon appeal, and the same was settled and allowed by the district judge.
Respondent has entered his written objection to the hearing of the cause upon the merits, and
urges that the statement upon appeal be disregarded upon the ground that it was filed with the
clerk and settled by the judge after the district court had lost jurisdiction of the cause by the
perfecting of the appeal. Section 1391, Comp. Laws, fixes the various periods of time within
which appeals shall be taken, varying in length from sixty days to one year from the time of
the rendition of the order or judgment. Section 1393, Comp. Laws, provides that within
twenty days after the entry of a judgment or order against a party having the right to appeal,
he may file his statement upon appeal with the clerk of the court, and, if no amendments be
proposed, it may thereafter be presented to the judge for settlement without notice to the
opposite party.
The right to have a statement of the case annexed to the record of the judgment or order is
not made to depend, in terms, at least, upon the fact whether an appeal has been taken. It is
absolutely awarded to the party having the right to appeal, but must be exercised within the
time limited by the statute, and jurisdiction of the case for this purpose is retained by the
district court. A contrary construction would abridge the time within which the statement may
be prepared, in cases depending upon facts similar to those of this case, and would ingraft in
the law a condition which the legislature did not expressly introduce and may never have
intended.
The case of Flynn v. Cottle, 47 Cal. 527, decided under a similar statute, supports this
conclusion we have reached.
2. The last amended complaint, filed on the twenty-third day of November, 1882, states a
cause of action for breach of covenant in a warranty deed, made jointly by defendant and
Richard Kirman. Kirman was not a party to the action at the time the pleading was filed, and,
as he had been made a defendant without leave of court, the complaint was stricken out
upon motion.
defendant without leave of court, the complaint was stricken out upon motion. Afterwards it
was amended, by stipulation, by striking Kirman's name therefrom as a defendant, and an
order of court asked making him a party. The motion was overruled. Thereafter defendant
demurred to the complaint, upon the ground of non-joinder of parties defendant, it appearing
from the complaint that Kirman was a necessary party defendant. The demurrer was
sustained. Plaintiff failed to amend his complaint, and judgment was entered against him.
The complaint was obnoxious to the demurrer. Plaintiff had, however, endeavored to cure
the defect by asking for an order making Kirman a defendant. The refusal of the court to
make the order is sought to be sustained upon the ground that, at an early stage of the case,
Kirman was, with Leport, a defendant to the action, and upon motion of plaintiff was
dismissed. It is claimed that the dismissal operated as a retraxit as to Kirman, and that the
judgment resulting therefrom is a bar to further proceedings upon the cause of action stated in
the complaint. Section 151 of the practice act (1 Comp. L. 1212), provides, among other
things, as follows: An action may be dismissed, or a judgment of nonsuit entered, in the
following cases: FirstBy the plaintiff himself, at any time before trial, upon the payment of
costs, if a counter-claim has not been made. * * * Here follow four other subdivisions
relating to judgments of nonsuit and dismissal, not necessary to be particularly noticed,
because the case in hand does not fall within their conditions, and the section concludes as
follows: In every other case the judgment shall be rendered upon the merits. The judgment
ordered falls within the provisions of the first subdivision of the above section. It was
rendered upon motion of the plaintiff, and, as said by counsel for respondent, as matter of
law there followed a judgment in favor of Kirman in this particular case for costs. The
judgment was, by the express terms of the statute, not upon the merits, and is not a bar to
further proceedings. (Van Vliet v. Olin, 1 Nev. 495.)
3. Again, it is claimed that the judgment in favor of respondent ought not to be disturbed,
because it is said it is correct, even though based upon the wrong ground; and, in support of
this view, respondent contends that the district court had no jurisdiction to try the case
made by the pleadings, and that respondent, therefore, should have recovered the
judgment for costs which was rendered in his favor.
court had no jurisdiction to try the case made by the pleadings, and that respondent, therefore,
should have recovered the judgment for costs which was rendered in his favor. The action
was commenced in justice's court. The cause of action as crudely stated in that court, was to
recover sixty dollars, overpaid upon purchase of house lot, and fifty dollars damages arising
therefrom. During the trial of the cause before the justice, it appeared that the determination
of the action necessarily involved questions of title to real property, and thereupon he
certified the cause to the district court. In that court the complaint was amended so as to
change the cause of action. No reason has been suggested to us showing a want of jurisdiction
in the district court to try the issue made. The court had jurisdiction of the parties. The action
involved the question of title to real propertya subject matter within the jurisdiction of the
district court, and not within the jurisdiction of the justice of the peace. It may be that the
jurisdiction was irregularly acquired, and that the amended complaint, which first contained
the changed cause of action, should have been stricken out upon motion seasonably made.
The point was raised by demurrer. We think that defects of this nature cannot be reached in
this way, because the defect complained of does not fall within any of the grounds for
demurrer enumerated by the practice act. (1 Comp. Laws, 1103.)
There has been no discussion of the question whether, under the provisions of the practice
act, a plaintiff may amend his complaint by setting forth a new cause of action, and upon this
subject we express no opinion.
It is ordered that the judgment of the district court be reversed and the cause be remanded.
____________
19 Nev. 178, 178 (1885) Ex Parte Kitchen
(No. 1214.)
Ex-parte JOHN G. KITCHEN.
Habeas CorpusWhen Petitioner Should Not Be DischargedDefective Indictment.If an indictment be
defective, but enough appears to retain the accused in custody, he should not be discharged upon habeas
corpus.
Application for writ of habeas corpus.
The conspiracy charged against petitioner and others was for conspiring, combining and
uniting together, to compel the mine owners to pay a certain stipulated price per day to
all laborers, and to prevent other persons from working for a less sum, and compelling
others by threats and intimidation to quit work.
19 Nev. 178, 179 (1885) Ex Parte Kitchen
for conspiring, combining and uniting together, to compel the mine owners to pay a certain
stipulated price per day to all laborers, and to prevent other persons from working for a less
sum, and compelling others by threats and intimidation to quit work.
P. Reddy, for Petitioner.
The applicant and several other persons were indicted by the grand jury of Eureka county
for the crime of conspiracy. A writ of habeas corpus has been applied for, to the end that
applicant may be discharged from the custody of the sheriff.
It is urged that applicant's imprisonment is illegal, because the sixth judicial district court,
in and for the county of Eureka, had no jurisdiction over the person of defendant, or the
subject matter set forth in the indictment against him, in that the facts set forth in said
indictment do not constitute a public offense, nor does the said indictment charge the said
defendant with the commission of any crime.
We express no opinion as to whether or not the indictment is defective in fact. We only
say that, if it is so, taking the most favorable view for applicant, enough appears to prevent
his discharge should the writ issue. (Church on Hab. Cor., 246.)
Writ denied.
____________
19 Nev. 180, 180 (1885)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA.
OCTOBER TERM, 1885.
____________
19 Nev. 180, 180 (1885) Martin v. Victor Mill and Mining Company
[No. 1209.]
PHILLIPPI MARTIN, Respondent, v. VICTOR MILL AND
MINING COMPANY, Appellant.
TestimonyAccountsCredibility of WitnessesBusiness Relations of Superintendent and Foreman of
Mine.The facts of this case involving an accounting between the parties, the business relations of the
foreman and superintendent of appellant's mine, and the credibility of respondent's testimony as a
witness, stated and reviewed by the court.
Mining CorporationWhen Liable for Money Voluntarily Advanced by ForemanRatification.The foreman
of a mining corporation, with the knowledge and acquiescence of the officers of the corporationbut
without any special requestadvanced money to pay the debts of the corporation, and the corporation,
with full knowledge of all the facts, acquiesced in the acts of its officers and agents in their dealings with
the foreman: Held, that such knowledge and acquiescence amounted to a ratification of the acts of the
foreman and rendered the corporation liable to him for the money so advanced.
ContractWages of ForemanDischarge of Laborers.Respondent was employed as a foreman of appellant's
mine at five dollars per day. Subsequently the mine was shut down and the laborers discharged.
Respondent was requested to remain and watch the mine without anything being said about a reduction of
wages, and he performed such service at the mine as he was requested to do: Held, upon a review of the
facts, that he was entitled to recover the sum of five dollars per day after the closing of the mine.
(Leonard, J., dissenting.)
Payment of Laborers by Foreman of MineVouchers and Receipts Admissible in Evidence.Where a foreman
in a mine, charged with the employment and discharge of laborers in such mine, pays such laborers out of
his own funds, in an action against his employer to recover the amounts thus advanced, the time-account
of the laborers thus paid by the foreman, and the receipts given by them to him therefor, are admissible in
evidence.
Appeal from the District Court of the Third Judicial District, Esmeralda County.
P. Reddy, for Appellant:
I. The burden of proof of ratification and all its essentials rests on the plaintiff. (Clarke v.
Lyon Co., 7 Nev. 76.)
The person ratifying must be cognizant of the facts. (Whar. on Ag., Sec. 65.)
Rhodes, as mining superintendent, had no authority to borrow, or to authorize any one else
to do so, and therefore could not by virtue of his position ratify such an act. (Stor. on Ag. Sec.
69, note 2; Bainb. on M., 379, 380, 382, 383; Union Gold M. Co. v. R. M. N. B., 1 Col. 532;
Union Gold M. Co. v. R. M. N. B., 2 Col. 248; Breed v. N. B., 4 Col. 481.)
II. The plaintiff was impeached by his testimony given at the former trial. Such testimony
is insufficient to support a verdict or decision. (3 Gra. & Wat. N. T., 1267; Newell v. Wright,
8 Conn. 319; Territory v. Adolphson, 5 Mon. 237; Handly v. Call, 30 Me. 9; Dunlap v.
Patterson, 5 Cow. 243; Santissima Trindad, 7 Wheat. 283, 338.)
III. The evidence shows that defendant in good faith paid to A. J. Rhodes every dollar
earned by its employees up to the time it ceased operations. It had the genuine receipts of the
employees themselves before it. Mining companies, corporations and individuals who rely
upon agents to transact their business, at a distance from the principal's residence, must of
necessity and do universally rely upon such evidence.
Whether these employees knew what Rhodes intended to do with the pay rolls, really
makes no difference; they put it in his power to obtain the money, and the question is, who
should suffer? We claim that these facts make out a clear estoppel. (2 Whar. on Ev. Sec.
1066; Big. on Es. 429, 430.)
D. J. Lewis, Thomas H. Wells and Curler & Bowler, for Respondent:
I. This court will not reverse the judgment of the district court on the ground that the
evidence is insufficient to justify the findings and decision of said court, if it shall find in the
record a conflict of testimony upon the points involved. (Pinschower v. Hanks, 18 Nev. 99;
Barnes v. Sabron, 10 Nev. 218; Leport v. Sweeney, 11 Nev. 387; Smith v. Mayberry, 13 Nev.
427; McLeod v. Lee, 14 Nev. 398; Kile v. Tubbs, 32 Cal. 332; Hardenburg v. Bacon, 33 Cal.
356; Went v. Ross, 33 Cal. 650; King v. Meyer, 35 Cal. 646; Frost v. Harford, 40 Cal. 165;
Witherby v. Thomas, 55 Cal. 9; Ladd v. Samuels, 57 Cal. 357.
II. The advances by plaintiff were expended in carrying out the objects for which the
defendant might legally incur debts. We apprehend there can be little or no dispute as to the
right of plaintiff or of a person claiming through him to stand in the place of the original
creditors whose demands being valid claims have been paid by him. In any event, the
advancement by plaintiff for the use and benefit of defendant may be considered as an
equitable assignment of the original creditors to the plaintiff of their demands thus paid by
him. (National Bank v. Mathews, 98 U. S. 621; Zabriskie v. C. C. & C. R. R. Co., 23 How.
381; Railroad Co. v. Howard, 7 Wall. 392, 413; San Antonio v. Mehaffy, 96 U. S. 312;
Mayor v. Ray, 19 Wall. 468.) As to the right to recover, though the contract be ultra vires, see
Railway Co. v. McCarthy, 96 U. S. 258; Hitchcock v. Galveston, 96 U. S. 351, 451; Gold
Mining Co. v. National Bank, 96 U. S. 640; Macon v. Shores, 97 U. S. 272; Hotel Co. v.
Wade, 97 U. S. 13; Twin Lick Oil Co. v. Marbury, 91 U. S. 587; Zantzinger v. Gunton, 19
Wall. 32; In re Jacox, 12 Blatchf. 209; Stewart v. National Bank, 2 Abb. U. S. 424; In re
Comstock, 3 Saw. 218; Bissell v. M. S. & N. I. R. R. Co., 22 N. Y. 262; Kelley v. People's
Trans. Co., 3 Or. 99; Whitman M. Co. v. Baker, 3 Nev. 386; Union G. M. Co. v. Rocky M.
Nat. Bank, 2 Col. 256;
Nat. Bank, 2 Col. 256; Gas Co. v. San Francisco, 9 Cal. 453; McCracken v. San Francisco,
16 Cal. 591; Grogan v. San Francisco, 18 Cal. 590; Pimental v. San Francisco, 21 Cal. 351;
Satterlee v. San Francisco, 23 Cal. 314; Argenti v. San Francisco, 16 Cal. 255; Zottman v.
San Francisco, 20 Cal. 96; Miners' D. Co. v. Zellerbach, 37 Cal. 543, 579; Foulke v. San
Diego S. P. R. R. Co., 51 Cal. 365.)
III. One can not stand by and know that another is expending his energy, labor and funds
for his benefit and then defeat a recovery because the act was not at first authorized. (2
Greenl. Ev., Secs. 107-108 and note; Ang. & Am. Corp., Sec. 304; Union M. Co. v. Rocky M.
N. B., 2 Col. 248, 565; Breed v. First Nat. Bank, 4 Col. 506.)
The acts, declarations and admissions of the regularly constituted agents of the defendant
with full knowledge of the payments made by plaintiff, show clearly the obligation of
defendant to pay plaintiff the various amounts found by the court.
These payments were made during times when they were actively engaged in conducting
the business of the company and when the subject matter of this controversy was being
contracted, and necessarily become part of the res gestae. (Sto. on Ag., Sec. 134 and note 2;
Garfield v. K. F. W. Co., 14 Cal. 35; Neely v. Naglee, 23 Cal. 152; Sto. on Ag., Secs. 85, 86,
96, 97; Horton v. Morgan, 19 N. Y. 170; Warren v. Mason, 18 Wend. 434.)
IV. The failure of defendant to object to plaintiff's account must be treated as an
admission and acquiescence by it in the correctness of said account. (Murray v. Toland, 3
Johns. Ch. 569; Freeland v. Heron, 7 Cranch. 147; 1 Story Eq. Jur., Secs. 526, 528.)
V. Rhodes being superintendent and also a director of the corporation, was incapacitated
from accepting an assignment from any creditor of the defendant for his own use and benefit;
nor could he purchase or deal with the subject matter of this suit for his own benefit. (Sto. Eq.
Jur., Secs. 321-322; Conger v. Ring, 11 Barb. 356; Davoue v. Fanning, 2 Johns. Ch. 252;
Vanhorn v. Fonda, 5 Johns. Ch. 409; Parkist v. Alexander, 1 Johns. Ch. 397; 4 Kent. Com.
475; 1 Sto. Eq. Jur., Sec. 322; Ex-parte James, 8 Ves. 337; Page v. Naglee, 6 Cal. 241; Sto.
on Ag., Sec. 211.)
VI. The defendant by its acquiescence and by the letters of Coye and Rhodes, and by the
fact of the examination of the book of plaintiff's accounts against it and the admission of the
officers of the correctness of plaintiff's account and its repeated promises to pay, must be
deemed to have ratified the actions of plaintiff which is equivalent to a previous request.
(Ang. & Am. on Cor., Sec. 305; Lawrence v. Tucker, 7 Greenl. 195; Pittsburg Bank v.
Whitehead, 10 Watts. 397; Boggs v. Lancaster Bank, 7 Watts, 331; Conro v. P. H. I. Co., 12
Barb. 27; Cumberland C. & I. Co. v. Sherman, 30 Barb. 553; McEwen v. Montgomery C. M.
I. Co., 5 Hill 101; Sto. Ag., Sec. 140; Paley on Ag. 262, 266; Sto. on Ag., Secs. 140, 451;
Wade Law of Not., Sec. 672; Green's Brice's, ultra vires, 500.)
The amended complaint in this action contains two counts. The first is for two thousand
two hundred and twenty-four dollars, upon a stated account as settled May 4, 1878. The
second is for an alleged indebtedness of twenty thousand two hundred and seventy-three
dollars and twenty-eight cents, itemized as follows: two thousand dollars money had and
received by defendant from plaintiff on October 25, 1879; ten thousand and seventy-two
dollars for money paid out and expended by plaintiff for the use and benefit of defendant;
three hundred and twenty-one dollars for tools, materials in building house, office expenses,
powder and taxes; three hundred and forty-three dollars and sixty cents judgments in justice's
court against defendant paid by plaintiff; seven thousand five hundred and thirty-five dollars
for one thousand five hundred and seven days' work and labor as foreman of the defendant at
five dollars per day. There is an admitted credit of ten thousand three hundred and twenty
dollars and forty-six cents, and the suit is brought to recover an alleged balance of twelve
thousand one hundred and seventy-six dollars and eighty-two cents. The answer specifically
denies each and every allegation in the complaint and generally denies any indebtedness
whatever. The cause was tried before the court, without a jury, and plaintiff recovered a
judgment for five thousand seven hundred and sixty-two dollars and nine cents. Defendant
appeals and contends that the evidence is insufficient to support the findings and
judgment.
that the evidence is insufficient to support the findings and judgment.
Before reviewing the specific items it becomes necessary to consider some of the peculiar
facts of this case, which bear, more or less, upon each of the several items of the account.
Respondent was the foreman of appellant's mine for several years. He was regularly
employed, and was to be paid for his services at the rate of five dollars per day. He also kept a
boarding house, where the laborers employed at the mine boarded. A. J. Rhodes was the
superintendent of the mine, and a large owner therein. He was also engaged in the general
business of merchandising. Respondent bought most of his supplies at Rhodes' store. The
question whether appellant is indebted to respondent in any of the amounts stated depends, to
a great extent, upon the nature of the business relations existing between respondent and
Rhodes. The theory of appellant is, and the testimony offered in its behalf tends to show, that
respondent's accounts against appellant were transferred or turned over to Rhodes, and that
Rhodes had been paid in full by appellant. The theory of respondent is, and his testimony
tends to show, that he only turned over these accounts to Rhodes so as to cover the extent of
his indebtedness to Rhodes, and that the understanding was that appellant was to be
responsible for the balance due him, and that the same had never been paid.
When this case was first presented to this court, there was no controversy as to the manner
in which the business transactions between respondent and Rhodes were conducted. (Martin
v. Victor M. & M. Co., 18 Nev. 306.) But the testimony as now presented upon this point is
different in many of its phases from that contained in the former record. Appellant, however,
contends that the facts to be gleaned from the present record are substantially the same as in
the former, especially as to the business relations between respondent and Rhodes. This
position is sought to be maintained by a direct attack upon the veracity of respondent; it being
claimed that no credit should be given to his testimony. It is argued that his testimony on the
last trial is self-contradictory and self-nullifying, and that he stands before this court
self-convicted of falsehood. It is claimed that his testimony, upon all the material matters,
is in direct conflict with his testimony at the first trial, and it is charged that he was
induced to make this change in his testimony on account of the previous decision of this
court.
is in direct conflict with his testimony at the first trial, and it is charged that he was induced to
make this change in his testimony on account of the previous decision of this court. There are
many statements made in his cross-examination which are to some extent contradictory of his
testimony in chief; and some portions of his testimony in chief are shown to be at variance
with his testimony upon the same points at his former trial. But after a careful examination of
the entire record, we are unwilling to say that his testimony is unworthy of belief, or that in
our opinion there is anything in the record to show that he has knowingly or willfully testified
falsely in relation to any of the items of account. We think that his contradictory statements
are to be accounted for by the peculiar complications arising from his business transactions
with Mr. Rhodes, and by a failure, upon his part, to fully comprehend the nature of some of
the questions asked him upon a tedious, searching, and ingenious cross-examination, rather
than upon any intentional design to misrepresent any of the facts. In considering his testimony
it must be remembered that appellant's affairs were so blended and mixed up with the
business transactions of its superintendent and foreman that it was difficult for counsel, and
by no means easy for this court, to explain the relations existing between them. The entire
business between all of these parties seems to have been conducted in a loose, careless, and
unsatisfactory manner. No regular books were kept by the superintendent. He took the
vouchers, pay-rolls, and bills given to him by the foreman, and sent them to the office of
appellant in San Francisco, California. The foreman kept books; but, judging him by the
record before us, he is not a success as a book-keeper. He was, however, for six years the
trusted friend and adviser of appellant. In him at all times it reposed the utmost confidence.
He was considered and treated as an honest, worthy, faithful, and confidential employe
[employee], and, as such, was intrusted with the management and control of appellant's
mining property to a great extent, as the superintendent was seldom at the mine.
The question whether the superintendent kept any books, or whether appellant had any
office at Belleville, is made the subject of attack upon the veracity of respondent, and
furnishes an illustration of the conflict which exists between his testimony and the testimony
of Mr. Rhodes. The facts are that appellant had no office specially designated as such by
signs or other outward marks.
appellant had no office specially designated as such by signs or other outward marks. It
conducted its business, through its superintendent, in a room at his store. This room was also
his private office, and in which he kept his store books. Respondent testifies that this room
was appellant's office, and that its books were kept there. On the other hand, Rhodes testifies
that appellant had no office and kept no books. Respondent claims, upon this point, to have
been deceived by Rhodes, and the result of the testimony seems to be that, as to some of the
accounts, the respondent thought he was getting credit on appellant's books, when in fact the
entries were made in the store books kept by Mr. Rhodes. It is, however, immaterial whether
the books in which the entries were made were the books of Rhodes, or the books of
appellant. The controlling question is whether appellant was to be liable to the foreman for
the balance of his account, over and above the amount due from him to Rhodes; or was it the
understanding that he was to look to Rhodes for his pay?
Appellant had knowledge of the manner in which its business was conducted. It appears
from the record that appellant was advised from time to time of the state of its accounts with
respondent. For a period of four years after Rhodes closed his store the president of appellant,
at various times, writes to respondent with reference to his accounts, making excuses for the
delay in paying him, and promising to pay him as soon as appellant realizes any money from
the sale of its property. The superintendent spent much of his time in San Francisco. He was
one of the directors of the corporation. The president was also a director. They were working
together, and had each other's confidence in the business of the corporation. In relation to the
question whether the corporation was indebted to respondent or not, we take the following
extracts from the letters of the president of the corporation to respondent, which were written
subsequent to the time of the closing of Rhodes' store in April, 1880: June 24, 1880I
received Mr. Kimball's letter, written at your request, and will state that in a short time I will
get matters arranged so as to settle off with the men and keep them paid up promptly, and you
will get all your money. It is perfectly safe. May 19, 1881As to your account, you may
rest at ease; both McCain and myself assure you that, as soon as a sale is made and the money
paid, the debts will be paid first of all, before the stockholders get a dollar."
the debts will be paid first of all, before the stockholders get a dollar.
It does not affirmatively appear who McCain is, but it is fair to presume, from the frequent
reference to his name in connection with the president's, in efforts made to assist and protect
Rhodes, that it is James S. McCain, whose name appears as one of the directors of the
corporation.
June 10, 1881:
Your letter received. * * * Now, I want a statement of your account in full against the
company; also a full account of the men that have been employed in the mine since July,
1879. I want the pay-rolls of each month by themselves, and the men that you have paid. State
it and make out a bill against the company as paid by you. * * * I think this will be a sale, and
you will get all your money soon.
July 12, 1881:
Your letter of the seventh received. * * * As to the account, we have it all written out in
shape, and will soon get the balance. That two thousand dollars charged as cash to Victor, you
did not say what it was for, but we will work it out. I told the secretary that you used it to pay
off the men, and that you held their notes for it, and when you come here for a settlement you
will present them all for payment. Your not giving a list of those you paid money to makes it
harder for us to work out. We take the full pay-rolls, deduct your own, and then find balance
due, and if balance is paid we credit you. * * * If you charge us the two thousand dollars and
the order also, you will get the amount in twice. We will get it right and send it to you, and
you will get all your money from the company. I will show the account to Mr. Rhodes as soon
as I get it out straight, and tell him that you want the settlement with the Victor Company.
Next follows the letter reported in 18 Nev. 303, dated July 13, 1881.
September 1: Your letter of the thirtieth received and I note all you say. First, about your
account. I promised you that the company should stand good to you for that; and that you can
depend on.
April 14, 1882. Your letter of April 10 this day received. I have read it all and note all
you say. I note your remarks about the Kline matter, and that I always have money. * *
* You know * * * that we have done all in our power to pay all. * * * We sold the property
and the money was to come for it. I did not put up money, not a dollar, in the Kline matter;
but it was put up by friends of the company. * * * It was impossible for me to send you any
money. * * * I do not forget my promise to you as to your account, and I understand all
about it. The money is promised by the fifteenth to pay everything up. When it comes you
will be paid. * * * You have been the trusted man of the company, and I hope and trust that
you will do all you can to help us through our troubles and not make us more.
May 31, 1884: Your letter received. * * * I am trying to get some money to send you. * *
* I told Mr. Rhodes that it was too bad that you was treated so, after standing by us as you
had done.
On the twenty-second of March, 1881, Mr. Rhodes writes a letter to respondent, which
also sheds some light upon the disputed question of any indebtedness. Yours in hand. As
regards my saying that the Victor did not owe you any money, you can tell those parties that it
is a lie. I have never told any one anything of the kind. It is their own manufactory, and I don't
think they ever heard any one say so; and if they and their kind would hold their tongues we
would have had money for you long ago.
These letters explain themselves. We shall, therefore, proceed upon the theory that
appellant is indebted to respondent in some amount, and that his testimony should be taken
into consideration in determining the disputed questions at issue between these parties.
A general objection is made to the allowance of any of the accounts for money advanced
or paid out by respondent for appellant's use and benefit, on the grounds that there is no
evidence showing, or tending to show, that appellant ever requested him to advance or pay
out any money for its use or benefit; that the payments, if made, were made gratuitously; that
no officer of appellant was authorized to request any one to advance money in its behalf, or to
sanction or ratify the acts of respondent; and that his acts, in this respect, were never ratified
by appellant. Appellant, in its business transactions of the nature revealed by the testimony in
this case, must be treated the same as an individual engaged in like business. If its duly
authorized officers or agents, acting for it, had knowledge of, sanctioned, and ratified the
acts of respondent in advancing money for its use and benefit, and appellant, with full
knowledge of all the transactions, acquiesced in the acts and declarations of its officers
and agents in their dealings with respondent, it should be held liable for the money so
advanced by respondent.
its duly authorized officers or agents, acting for it, had knowledge of, sanctioned, and ratified
the acts of respondent in advancing money for its use and benefit, and appellant, with full
knowledge of all the transactions, acquiesced in the acts and declarations of its officers and
agents in their dealings with respondent, it should be held liable for the money so advanced
by respondent. It cannot, under such circumstances, avoid this liability on the ground that
such a course of proceedings was never authorized by its directors. It is made manifest from
the testimony that appellant had knowledge of the advances of money in its behalf by
respondent. It received the benefit of these advances without protest or objection, and,
through its officers, repeatedly informed respondent that it would be made all right, and
that he should be repaid as soon as it could obtain the money. Respondent, among other
things, testified as follows: Many times I spoke to Mr. Rhodes of the money I had advanced
to the men for the company. Mr. Rhodes said it was all right and that I would be paid for the
money I had thus advanced.
Similar testimony was given in relation to each account where it is claimed advances were
made.
On the twentieth of June, 1881, the president writes to respondent and says: Yours with
pay-rolls and letter received. The balance of your account, October 25, 1879, ten thousaand
[thousand] sixty-eight dollars and five cents, I cannot get at for books of company. I think you
had better send me your books by express.
On the twenty-third of June, 1881, another letter is written stating: In sending for your
books the other day I should have stated more fully why I wanted them. * * * I wanted a full
detailed statement to put on the books of the company and place your account to your credit
on the books, so that the money, when paid for the mine, if sold, can be paid out without
delay. You can arrange to have yours paid just as you like.
On the first of July the president acknowledges the receipt of respondent's books. In
August following the respondent, as he testifies, had a conversation with the president and
superintendent of appellant in San Francisco, and in reply to his request for a settlement, told
him to go with the secretary of appellant, examine the accounts, and find the balance, and
said that everything that was done between the secretary and myself would be all right; that
the secretary and respondent examined the books and accounts, and found a balance to be
due respondent "of some ten or eleven thousand dollars;" and that all the accounts sued
for were in the books which they examined.
examined the books and accounts, and found a balance to be due respondent of some ten or
eleven thousand dollars; and that all the accounts sued for were in the books which they
examined. In the light of all the testimony we are of opinion that appellant must be held liable
for the amounts of money which respondent at various times advanced for its use and benefit.
There is sufficient evidence to sustain the finding of the court allowing respondent two
thousand two hundred and twenty-four dollars, upon the first count in the complaint.
Respondent testified as follows: I had a settlement with A. J. Rhodes, the superintendent of
the company, on the fourth day of May, 1878, and a balance of two thousand two hundred
and twenty-four dollars was admitted to be due me. * * * The balance of two thousand two
hundred and twenty-four dollars was never paid to me by defendant or any one in its behalf.
We deem it unnecessary to discuss the controversy arising from the evidence as to when
this account commenced, there being an admitted mistake of one year in the first statement of
respondent, and in the entry made in the books kept by him, which was corrected at the first
trial upon his cross-examination, further than to state that it does not affirmatively appear that
there was any intentional design, upon the part of respondent, to make any demand for an
extra year's service, as claimed by appellant.
The evidence sustains the finding of the court allowing the two thousand dollar account.
Respondent testified that he paid this money to the men; but when called upon to name the
men and the amounts paid to each, he only showed a cash payment of about eight hundred
and seventy-five dollars, and it is claimed that no more than this amount should, in any event,
have been allowed. The record shows that the corporation was indebted to the men in the full
amount. The men were indebted to respondent for board, and for cash previously advanced to
them. In respondent's testimony he says: I paid the money myself to the men in coin checks
of different amounts. * * * The men owed me board bills, and cash, besides, furnished to
them, both for account of the company. I bring the men down to Rhodes. Mr. Rhodes had no
money, and the company had no money. I furnished two thousand dollars. The reasonable
conclusion, to be drawn from this testimony, is that in furnishing this money he included
the amounts due from the men to himself for board, and money previously advanced, and
that it was the balance which he paid in coin checks to the men.
is that in furnishing this money he included the amounts due from the men to himself for
board, and money previously advanced, and that it was the balance which he paid in coin
checks to the men.
The court only allowed seventy-six dollars of the three hundred and twenty-one dollar
account, and no objection is made to this. The account of three hundred and forty-three
dollars and sixty cents allowed by the court is objected to upon several grounds. It is claimed
that it does not affirmatively appear that the judgments were regularly entered. This is
immaterial. If it appears that respondent paid this money upon appellant's request, or that,
having paid it without request, appellant subsequently ratified the act and promised to pay
respondent the money, it cannot avoid the payment on account of any irregularity in the
proceedings in the justice's court, or in the proofs as to the existence of the judgments. The
record shows that respondent paid these judgments, and the court's finding in this respect is
fully sustained by the testimony.
The court allowed respondent six thousand nine hundred and seventy-five dollars for one
thousand three hundred and ninety-five days' work at five dollars per day. As the mine was
closed down on the eleventh of October, 1880, it is contended that respondent is not entitled
to any wages as foreman after that date; that he is not in fact entitled to any wages; but if any
amount is allowed it should be for a smaller sum than five dollars per day.
Respondent relies upon the original agreement, upon the request of appellant for him to
remain and watch the mine and property, and the further fact that no notice was every given
to him that his services were not needed, or anything said about a reduction of his wages. The
original agreement was that he should receive five dollars per day right along, whether the
mine paid or not. Respondent claims that he was recognized as foreman until 1882.
Rhodes, on behalf of appellant, testified that when the mine was closed down in 1880, he
had a conversation with respondent and told him we could not keep a foreman there at that
time. We both agreed that it was not right to keep a foreman there under wages; that he was to
stop there, and he could stop in the Victor House without charge. When asked to repeat the
conversation he said: "I told him that the company could not afford to pay a man wages
for staying there.
conversation he said: I told him that the company could not afford to pay a man wages for
staying there. He agreed to it; stated that he would stop there at the mine, and that there would
not be any charge for it. Respondent, when questioned by appellant's counsel, gave his
version of the conversation with Rhodes as follows: Question. What did he (Rhodes) say to
you? Answer. I asked him if he wanted me to stay there and take care of the property. They
expected to have everything settled and start anew in a very short time. Q. Is it not a fact that
he told you to stay in the boarding-house and take care of it, and when they would start up
again they would want you? A. No, sir.
He gave other testimony of like import. It affirmatively appears that he was frequently
ordered by the president and superintendent to perform service at the mine, and that he
complied with their requests.
We are of opinion that the court was justified, if it believed respondent's testimony to be
true, to allow him five dollars per day for the time claimed after the mine was closed down.
There is, however, a mistake in the computation of time. The whole number of days between
May 4, 1878, and June 12, 1882, is one thousand four hundred and ninety-nine, and from this
should be deducted one hundred and eighteen days that respondent admits being absent from
the mine, leaving one thousand three hundred and eighty-one days, which, at five dollars per
day, amounts to six thousand nine hundred and five dollars.
Of the ten thousand and seventy-two dollars claimed by respondent as having been paid to
the men employed at the mine, the court only allowed about six thousand dollars. With
reference to this claim the respondent testified that he knew the corporation was indebted to
the men in the several amounts paid by him, because he, as foreman, was authorized to
employ and discharge the men, and that they could not receive pay for their labor without first
obtaining a time-check from him; that the corporation failed to pay the men, and that he paid
them with his own money. He also introduced vouchers for the amounts, which the court
allowed. The greater portion of these vouchers were simply in the form of an account for so
many days' labor against appellant, regularly receipted. Some were regular receipts
acknowledging the receipt of the money from respondent "on account of labor performed
for Victor Mill & Mining Company."
were regular receipts acknowledging the receipt of the money from respondent on account of
labor performed for Victor Mill & Mining Company. It is argued that the first class of
vouchers were immaterial, irrelevant, and inadmissible in evidence, as they did not tend to
prove that the money received was not paid by appellant; and that the other class, as to the
labor being performed for appellant, were to that extent a self-serving statement and hearsay
evidence. We are of opinion that all the vouchers produced by respondent were properly
admitted in evidence, as they tended to corroborate his testimony that he had paid these
accounts with his own money. In connection with some of these accounts it is claimed that
appellant was misled and deceived by the acts of respondent, and the men at work under him,
in signing the monthly pay-rolls and delivering the same to the superintendent, without
receiving their money for the wages receipted for, and it is argued that respondent is for this
reason estopped from asserting that the amounts of money as specified in these pay-rolls was
never paid by appellant. It is not shown that there was any collusion or intended fraud upon
the part of respondent in relation to this matter. The evidence is that the pay-rolls were
receipted for at the special instance and request of the superintendent. Respondent testified as
follows: I signed myself, and some other parties signed the pay-rolls, at the instance and
request of Rhodes, the superintendent. * * * He insisted to have the pay-rolls signed. He said
it would be all right. I said `Mr. Rhodes, that is not the way to do. * * *' He said that would be
all right; the company was good for it; the mine was good for it.
If there was any misconduct, it was upon the part of appellant's superintendent, and if it
was misled thereby, we do not think the respondent should be held responsible for the acts of
the superintendent. But we are of opinion that the record shows that appellant had knowledge
of the methods used in procuring the signatures of the foreman and laborers upon the
pay-rolls, and that it was not misled, deceived, or injured in this matter.
It is contended that the court erred in allowing respondent four hundred and ninety-two
dollars, which he paid to Nicholas Kline. It appears that Kline subsequently commenced suit
for the balance due him from the corporation, and in his complaint admitted that he had
received from appellant "the sum of four hundred and ninety-two dollars for boarding,
and the sum of two hundred dollars in cash."
admitted that he had received from appellant the sum of four hundred and ninety-two dollars
for boarding, and the sum of two hundred dollars in cash. Respondent, after testifying that he
had paid this four hundred and ninety-two dollars, offered the following receipt as a voucher
to show that he had advanced this amount to Kline:
$492.
Candelaria, September 2, 1880.
Received from P. Martin four hundred and ninety-two dollars on account of labor
performed for Victor Mill & Mining Company. Nicholas Kline.
Appellant objected to this receipt on the ground that it was immaterial and irrelevant, and
that plaintiff is estopped from offering the evidence of any payment by him to said Kline by
reason of the judgment roll already in evidence in the case of Kline v. Victor Mill & Min. Co.,
for the reason that it is there adjudicated that defendant had paid four hundred and ninety-two
dollars for board of said Kline, and the sum of two hundred dollars in cash, and the further
sum of sixty-nine dollars and ninety cents, the board of said Kline, making a total of seven
hundred and sixty-one dollars and ninety cents. A judgment for the balance of all that he had
earned to that time, the sum of one thousand two hundred and eighty-two dollars and ten
cents, was, on the twenty-fourth of June, 1881, rendered in favor of said Kline for said
amount, which sums included, as adjudicated in said judgment, the entire amount of the
earnings of said Kline from said defendant; * * * and the receipt is contradictory of the
judgment, in that it is there asserted that four hundred and ninety-two dollars was paid by P.
Martin, on account of labor performed for the Victor Mill & Mining Company; whereas, said
judgment determined that it was paid by defendant.
The position of appellant, as claimed by this objection, is that, notwithstanding the fact
that this money was paid by respondent, he is estopped from recovering it because Kline gave
appellant credit therefor. This objection is wholly untenable.
It is claimed that the court erred in allowing the sum of four hundred dollars which
respondent, in his examination in chief, testified he had paid to T. Plameney. In his
cross-examination he gave testimony to the effect that he only paid Plameney three hundred
and ninety dollars, and it is contended that this is all that should have been allowed. But it
appears that respondent, in testifying to the payment of the sum of four hundred dollars,
included a store account of Plameney for ten dollars, and in relation to this account, upon
his cross-examination said:
respondent, in testifying to the payment of the sum of four hundred dollars, included a store
account of Plameney for ten dollars, and in relation to this account, upon his
cross-examination said: I fixed this thing with the store keeper about the ten dollars.
An objection is urged against the allowance of the sum of three hundred and six dollars
paid to B. McMurray, and it is claimed that this allowance should be reduced to two hundred
and twenty-five dollars, which respondent paid out and obtained credit for upon Rhodes'
books. The amounts which respondent obtained credit for on Rhodes' books varies from the
real amount paid in many cases. In relation to this claim respondent offered in evidence a
receipted account from McMurray for three hundred and six dollars, for seventy six and
one-half days' labor performed for the Victor M. & M. Co., which plaintiff testified, was due
from defendant to said McMurray, and was paid by said plaintiff to McMurray with plaintiff's
own money.
There are divers and sundry other objections to the rulings of the court in admitting
testimony, and in the allowance of the accounts, of which we deem it unnecessary to make
special mention. It is enough to say that we have carefully examined the same, and find them
to be without any substantial merit. There being a direct conflict of evidence upon all the
material points, it is our duty to sustain the findings of the court.
The judgment of the district court is modified by deducting therefrom the sum of seventy
dollars, and, as so modified, the judgment of the district court is affirmed, with costs.
Leonard, J., dissenting:
I think the court erred in allowing five dollars a day from and after work was suspended in
the Victor mine. Giving to respondent's testimony all that the language imports, it amounts to
this: That he was originally employed to act as foreman at five dollars a day; that when the
company ceased work he was not formally discharged, and while staying in the company's
house free of charge, when asked by the president, by letter, he sometimes performed trifling
services, which any friend might well do for another. On the contrary, Mr. Rhodes,
defendant's superintendent, subsequently testified that when the mine was closed he had a
conversation with respondent in relation to this matter; that he told respondent the
company could not afford to keep a foreman or pay a man for staying there; that
respondent agreed to it, and stated that he would stop at the mine and would not charge
for it.
relation to this matter; that he told respondent the company could not afford to keep a
foreman or pay a man for staying there; that respondent agreed to it, and stated that he would
stop at the mine and would not charge for it. Respondent did not contradict Rhodes'
testimony, and the trifling services performed by himsuch as showing a few visitors about
the minewere such as any person ought to have done, situated as he was, after agreeing
with Rhodes that he would remain without compensation until work should be resumed.
Before Rhodes gave his testimony, respondent testified that when the mine was closed,
Rhodes asked him if he wanted to stay there and take care of the property, the Victor mine,
and that it was not a fact that Rhodes told him to stay in the boarding house and take care of
it, and when work should be resumed the company would want him. After respondent rested,
Rhodes testified for appellant as above stated. In rebuttal respondent did not deny that he had
entered into the agreement stated by Rhodes, and to my mind his former testimony did not
amount to such denial.
____________
[No. 1209.]
PHILLIPPI MARTIN, Respondent, v. VICTOR MILL AND
MINING COMPANY, Appellant.
Execution SaleJudgment on AppealSetting Sale Aside.It is only in cases where the judgment is reversed,
or so far modified as to make it inequitable to allow the sale to stand, that a court would be authorized to
set aside an execution sale.
Motion for Restoration of Rights.
P. Reddy, for Motion:
Thos. H. Wells, D. J. Lewis, and Curler & Bowler, against Motion:
Upon appeal from the district court the judgment in this case in favor of respondent was
modified by deducting therefrom the sum of seventy dollars. (Martin v. Victor M. & M. Co.,
ante. Appellant in taking the appeal, gave no bond to stay proceedings under the judgment.
proceedings under the judgment. Execution was regularly issued upon the judgment, and the
Victor mine, the property of appellant, was levied upon and sold under and by virtue of said
execution. Respondent became the purchaser of the property at the execution sale; and, the
time for redemption having expired, he has received a sheriff's deed of the property. Upon
these facts, appellant moves this court to be restored to the rights which it enjoyed at the
time that the judgment was rendered in the court below, and to set aside the sale; and bases
its application upon the following provisions of the statute: When the judgment or order is
reversed or modified, the appellate court may make complete restitution of all property and
rights lost by the erroneous judgment or order. (Civil Pr. Act, Sec. 339.)
The title acquired by the purchaser of real estate, under and by virtue of a writ of execution
issued upon a judgment rendered by a court of competent jurisdiction, is not rendered invalid
by a subsequent reversal of the judgment in the appellate court. The only controversy upon
this question is whether or not the principle applies to the parties to the suit; several
authorities holding that it does apply to all cases, whether the purchaser was a party to the suit
or not. (South Fork Canal Co. v. Gordon, 2 Abb. U. S. 486; Gray v. Brignardello, 1 Wall.
634; Rorer, Jud. Sales, Sec. 138.) Others declare that it does not apply when a party to the suit
is a purchaser at the sale. (Galpin v. Page, 18 Wall. 374; Fergus v. Woodworth, 44 Ill. 381;
Gott v. Powell, 41 Mo. 420; Corwith v. State Bank, 15 Wis. 291; Freem. Ex'ns, Sec. 347.)
In California the rule is stated as follows: The doctrine formerly prevailed that whenever
a sale was made under an erroneous decree or judgment, which was afterwards reversed, the
court rendering the judgment having jurisdiction of the person and subject-matter, the
purchaser acquired a good title, notwithstanding the reversal. It was enough, it was said, for
the buyer to know that the court had jurisdiction, and exercised it; and that the judgment, on
the faith of which he purchased, was made, and authorized the sale. With the errors of the
court he had no concern. The former owner was then turned over to an action for damages to
make good the loss of his property. That doctrine is now so far modified that, if the plaintiff
in the judgment be himself the purchaser, the former owner, after reversal, may, at his
election, either have the sale set aside and be restored to the possession, or have his
action for damages."
owner, after reversal, may, at his election, either have the sale set aside and be restored to the
possession, or have his action for damages. (Reynolds v. Hosmer, 45 Cal. 628; Reynolds v.
Harris, 14 Cal. 679; Johnson v. Lamping, 34 Cal. 301.)
The judgment in this case was not reversed. A mistake was made in the computation of
time that plaintiff was entitled to wages. This mistake was rectified in the appellate court by
deducting the sum of seventy dollars from the judgment. This was the only modification
made. The judgment was, in all other respects, affirmed. It is only in cases where the
judgment is reversed, or so far modified as to make it inequitable to allow the sale to stand,
that a court would be authorized, under the statute, to set the sale aside. This is not such a
case.
Appellant will be restored to all rights to which it is entitled, by collecting from respondent
the sum of seventy dollars. This amount can be deducted by respondent from his costs on
appeal. Upon the filing of the remittitur in the court below, the district court will make the
proper order to that effect.
Appellant's motion to set aside the sale is denied.
____________
19 Nev. 199, 199 (1885) State v. Horton
[No. 1223.]
THE STATE OF NEVADA Ex. Rel. W. H. DAVENPORT, ATTORNEY-GENERAL,
Relator, v. GEORGE HORTON et al. Respondents.
School TrusteesOath of OfficeWho may Administer.A judge of an election is not authorized to
administer the oath of office to a school trustee under the statute. The only oath a judge is authorized to
administer is the oath to a voter when challenged.
Quo WarrantoCollateral Questions.In proceedings to determine the right of persons to hold the office of
school trustees: Held, that the question of the qualification of the superintendent of schools cannot be
inquired into; that it was enough to show that he had been elected, entered upon, and exercised the duties
of his office.
Official OathEndorsement of on Certificate.An official oath attached to a certificate of appointment, or
endorsed upon the face thereof, is as valid as if endorsed upon the back of the certificate.
Application for quo warranto.
W. H. Davenport, Attorney-General, and R. M. Clarke and J. D. Torreyson, for Relator:
A. C. Ellis, for Respondents:
This is a proceeding in the nature of a quo warranto to determine whether the respondents
have wrongfully and unlawfully intruded themselves into and usurped the offices of school
trustees of Empire school district, in Ormsby county. The material facts, as presented by the
pleadings and proofs, are that the number of census children in Empire school district is less
than four hundred; that at the general election in November, 1882, W. J. Smyth was elected
school trustee in said district for the term of four years from and after January 1, 1883; that at
the general election in 1884, J. P. Woodbury and John Christiansen were elected trustees, the
former for a term of four years, and the latter for two years; that said parties qualified by
taking the regular oath of office before an officer authorized to administer oaths, and that
their oaths of office were endorsed upon their certificate of election; that on the second
Saturday of May, A. D. 1885, at an election held pursuant to the provisions of the
supplemental school act, approved March 12, 1885, (Stat. 1885, 111,) the respondents,
Horace A. Bowley, George Horton and A. D. Smith, were elected school trustees in said
district for the respective terms of one, two and three years from the first day of September,
A. D. 1885; that they received their certificates of election on the ninth day of May, and the
oath of office was administered to them by one of the judges of the school election; that on
the third day of September, 1885, S. H. Wright, county superintendent of schools in Ormsby
county, believing that a vacancy existed, appointed J. P. Woodbury, W. J. Smyth and John
Christiansen school trustees of said school district; that on the fifth day of September, 1885,
W. J. Smyth and John Christiansen signed and subscribed the official oath, and it was sworn
to by them before a justice of the peace; that on the twelfth day of September, 1885, J. P.
Woodbury qualified by taking the official oath before a notary public; that the respective
oaths of office were attached to their certificates of appointment; that subsequently, on the
twenty-first day of September, 1885, after the information in this case had been filed with
the clerk of this court, Horace A. Bowley and A. D. Smith went before a notary public and
had the official oath administered to them and annexed to a paper containing what
purported to be a copy of their certificates of election.
information in this case had been filed with the clerk of this court, Horace A. Bowley and A.
D. Smith went before a notary public and had the official oath administered to them and
annexed to a paper containing what purported to be a copy of their certificates of election.
Counsel for the respective parties discussed the question of the construction and
constitutionality of the supplemental school act; but it is unnecessary for us to consider either
of these questions in deciding this case. The judges of the election had no authority to
administer the official oath of office to the elected school trustees. The only oath which a
judge of the election could administer is the one prescribed in the statute to a voter when
challenged. (Stat. 1885, 113, Sec. 9.) If the supplemental school act is unconstitutional, the
respondents would have no right whatever to the offices of school trustees, and Woodbury,
Smyth, and Christiansen would be entitled to the offices by virtue of their election and
qualification under the old law. If the supplemental act is constitutional, respondents would
not be benefited thereby, because they failed to qualify as required by law, and Woodbury,
Smyth, and Christiansen would be entitled to the offices by virtue of their appointment.
The question whether S. H. Wright qualified as superintendent of schools according to the
provisions of the statute cannot be inquired into in this proceeding. It was enough to show
that he was elected and entered upon the duties of this office, and that he has ever since been
exercising the duties thereof.
The objections made to the effect that the official oaths of Woodbury, Smyth, and
Christiansen were attached to, instead of being indorsed upon, the back of their certificates of
appointment, or indorsed on the face, instead of the back, of their certificates of election, are
without merit. (Brown v. Foster, 2 Met. 155.)
The respondents having failed to show any legal right to the offices of school trustees, a
judgment of ouster must be entered against them, with costs. It is so ordered.
Leonard, J.: I concur in the judgment.
____________
19 Nev. 202, 202 (1885) State v. Laughton
[No. 1221.]
THE STATE OF NEVADA ex rel. W. H. DAVENPORT, ATTORNEY-GENERAL, Relator,
v. CHAS. E. LAUGHTON, Respondent.
Quo WarrantoLieutenant-GovernorEx-Officio State LibrarianOfficial BondWithdrawal of
SuretyFailure to File New BondOffice Vacant.Respondent was elected to the office of
lieutenant-governor, subsequently the legislature passed an act making the lieutenant-governor ex-officio
state librarian; respondent as ex-officio state librarian gave a bond, one of the sureties thereon, thereafter,
withdrew from said bond by giving a notice in compliance with the statute; respondent failed to file a new
bond within the time required by the statute and the governor declared the ex-officio office of state
librarian vacant: Held, that the failure to give the bond as ex-officio state librarian did not create a
vacancy in the office of lieutenant-governor; that the two offices are separate and distinct, and that
respondent's failure to give a new bond as ex-officio state librarian created a vacancy in that office.
IdemSufficiency of Notice by Surety.The notice served by the surety upon respondent was as follows:
Hon. Chas. E. Laughton * * * You are hereby notified that I, as surety for the sum of * * * upon your
official bond as ex-officio state librarian * * * desire to be released from further liability on account
thereof, and to withdraw and be discharged from said bond: Held, sufficient in form and substance.
Application for Quo Warranto.
W. H. Davenport, Attorney-General, and R. M. Clarke, for Relator:
I. Respondent cannot keep the office of ex-officio state librarian and neglect to give a
bond. (Hinze v. People, 92 Ills. 406; Attorney-General v. Squires, 14 Cal. 12.)
II. The failure of an officer to give a bond, required by statute, creates a vacancy in office
which may be filled by appointment. (2 Comp. Laws, 2633, 2931; People v. Taylor, 57 Cal.
620; State v. Beard, 34 La. Ann. 273; State v. Matheney, 7 Kan. 330; State v. Hadley, 27 Ind.
496; Hyde v. State, 52 Miss. 665; Beebe v. Robinson, 52 Ala. 66.)
III. A vacancy in office may exist without any judicial determination of the fact. (2 Comp.
Laws 2633, 2931; Hedley v. Commissioners, 4 Blackf. 116; Kerr v. Jones, 19 Ind. 354;
Thompson v. Holt, 52 Ala. 504;
Thompson v. Holt, 52 Ala. 504; Park v. Bamberger, 52 Miss. 565; Bashford v. Barstow, 4
Wis. 777.)
IV. If it is true as claimed by respondent that whoever is the lieutenant-governor must be
ex-officio state librarian, then it follows that respondent has forfeited and vacated the office of
lieutenant-governor by failing to give a new bond as ex-officio state librarian. (People v.
Sanderson, 30 Cal. 160.)
I. The court has no jurisdiction to inquire into the matters set forth in the petition and
cannot render any judgment of ouster against the lieutenant-governor. (Const. Art. V. Sec. 17;
2 Comp. L. 2635, 8636; Low v. Com., 3 Met. (Ky.) 237; Page v. Hardin, 8 B. Mon. 648.)
II. The tenure of a constitutional office cannot be made dependent upon the will of the
legislature, and the lieutenant-governor cannot be ousted upon a condition imposed after his
election and qualification. (Const. Art. V. Sec. 22; Id. Art. XV. Sec. 11; Fant v. Gibbs, 54
Miss. 396; King v. Hunter, 65 N. C. 603; Howard v. State, 10 Ind. 99; People v. Kelsey, 34
Cal. 470.)
III. The notice served upon respondent is insufficient. There is no statutory statement. (2
Comp. L. 2921, 2930-1; Potwine's Appeal, 31 Conn. 381; Williams v. Brummel, 4 Ark. 129.)
IV. The act of 1883 is the last act of the legislature in relation to official bonds, the act of
1867 being repugnant to it, is repealed by it. (Christy v. Supervisors, 39 Cal. 3; Estate of
Wixom, 35 Id. 320; Ex-parte Smith, 40 Id. 419; People v. Burt, 43 Id. 560; People v. Sargent,
44 Id. 430.)
This is a proceeding to determine the right of respondent (1) to hold the office of
lieutenant-governor; and (2) to hold the office of state librarian. At the general election for
state officers in November, 1882, respondent was elected lieutenant-governor. He afterwards
qualified according to law, and entered upon the duties of said office on the first Monday in
January, 1883. On the seventeenth of February, 1883, an act was passed, to take effect March
2, 1883, which provides, among other things, that the lieutenant-governor shall be
ex-officio state librarian.
among other things, that the lieutenant-governor shall be ex-officio state librarian. (Stat. 1883,
41.) On the first of March, 1883, an act was passed, to take effect immediately, which
provides that before entering upon the duties of the office (state librarian) the
lieutenant-governor, as ex-officio state librarian, shall execute an official bond in the sum of
one thousand dollars, with sureties to be approved by the governor, conditioned for the
faithful discharge of his duties, and delivery over to his successor of all the books and other
property belonging to the state library. * * * Respondent gave the required bond with J. R.
King and D. L. Bliss as sureties, each in the sum of one thousand dollars, and entered upon
the discharge of the duties of state librarian.
Section 2633 of the Compiled Laws provides that, every office shall become vacant upon
the occurring of either of the following events, before the expiration of the term of such
office: * * * Fifth. A refusal or neglect of the person elected or appointed to take the oath of
office as prescribed in section twenty-two of this act, or, when a bond is required by law, his
refusal or neglect to give such bond within the time prescribed by law. * * * By sections
2929, 2930, 2931, it is provided that Any surety on the official bond of any state * * *
officer, or on the bond or undertaking of any person, where, by a law, a bond or undertaking
is required, may be released from any liability thereon accruing from and after proper
proceedings had therefor as provided in this act. Any surety desiring to be released from
liability on the bond of any state officer shall file with the governor or secretary of state a
statement in writing, duly subscribed by himself, or some one in his behalf, setting forth the
name and office of the person for whom he is surety, the amount for which he is liable as
such, and his desire to be released on account thereof. A notice containing the objects of such
statement shall be served personally on the officer. * * * If any officer * * * shall fail,
within ten days from the date of a personal service, * * * to file a new or additional bond or
undertaking, the office or appointment of the person or officer so failing shall become vacant,
and such officer or person shall forfeit his office or appointment, and the same shall be filled
as in other cases of vacancy, and in manner as provided by law, and the person applying to be
released from liability on such bond or undertaking shall not be holden or liable thereon
after the date herein provided for the vacating and forfeiting of such office or
appointment."
taking shall not be holden or liable thereon after the date herein provided for the vacating and
forfeiting of such office or appointment.
On July 31, 1885, D. L. Bliss, one of the sureties named, filed in the office of the governor
and of the secretary of state the following document in writing:
Carson City, July 31, 1885.
Hon. Chas. E. Laughton, Carson, NevadaSir: You are hereby notified that I, as surety
for the sum of one thousand dollars ($1,000) upon your official bond as ex-officio state
librarian of the state of Nevada, desire to be released from further liability on account thereof,
and to withdraw and be discharged from said bond. D. L. Bliss.
It is claimed by plaintiff that an exact copy of this paper was served personally on
respondent, at his office in Carson, July 31, 1885. Respondent denies the service. Its validity
will be considered further on. Respondent has not filed a new or additional bond. On
September 4, 1885, the governor filed in the office of secretary of state his written
proclamation declaring the office of state librarian vacant.
1. There is no vacancy in the office of lieutenant-governor by reason of respondent's
failure to file a new or additional bond. It is claimed and conceded by both sides that the
office of lieutenant-governor and the office of state librarian are separate and distinct. Making
a person an ex-officio officer, by virtue of his holding another office, does not merge the two
into one. (People v. Edwards, 9 Cal. 286; People v. Love, 25 Cal. 520; Lathrop v. Brittain, 30
Cal. 680; People v. Ross, 38 Cal. 76; Territory v. Ritter, 1 Wyo. 333; Denver v. Hobart, 10
Nev. 31.) It is true, the lieutenant-governor is required to give the bond, because the
lieutenant-governor and librarian are one person; but he gives it for the ex-officio office, not
the principal one. The sureties are not, and were not intended to be, liable for any malfeasance
outside of the ex-officio office. We cannot say in this proceeding that respondent's right to
hold the office of lieutenant-governor, and enjoy the emoluments thereof, depends upon a
faithful discharge of the duties of state librarian, or upon his compliance with the statute
concerning the bond required of him as librarian. We cannot pronounce the office of
lieutenant-governor vacant, unless respondent has done something, or failed to do something,
which the law declares shall produce a vacancy therein.
which the law declares shall produce a vacancy therein. The fault here charged is failure to
give the bond required as state librarian. For that fault, if it exists, the only penalty that can
follow in this proceeding is, at most, to declare that the office in which the bond is required
was, by such failure, vacated and forfeited.
2. Did the office of state librarian become vacant in law, by reason of a failure on the part
of respondent to file a new or additional bond within the time prescribed, after the filing by
D. L. Bliss, in the office of the governor or secretary of state, of a legal statement, and after
personal service of a legal notice? There is nothing in the constitution of this state prohibiting
respondent from holding the office of lieutenant-governor and the office of state librarian.
(Crosman v. Nightingill, 1 Nev. 326.) Such being the case, the legislature had power to create
the last-named office, and make the lieutenant-governor ex-officio state librarian. If the
legislature had the powers mentioned, it must follow that it had authority also to impose
reasonable conditions precedent to the holding of the legislative office. It had power to
require the giving of a bond to secure a faithful discharge of the duties of that office. It could
provide that such bond should be kept good, and in case of failure to do so, that the office
should become vacant. When the statute of February 17, 1883, making the
lieutenant-governor ex-efficio [ex-officio] state librarian, and the statute of March 1, 1883,
requiring the lieutenant-governor, as ex-officio state librarian, to give a bond, were passed,
there were general statutes declaring under what circumstances all offices should become
vacant, providing for the release from liability of any surety, and prescribing the result of a
failure to file a new or additional bond within the time stated, after the filing by a surety of a
legal statement in the office of the governor or secretary of state, and the service of a legal
notice upon the officer.
These different statutes must be construed together, and in such a manner, if possible, as to
carry out the legislative intent. When the statute requiring the lieutenant-governor, as
ex-officio state librarian, to give a bond was passed, it was the law of this state that any or all
of respondent's sureties might be relieved from liability by doing certain things, and that a
failure of respondent to file a new or additional bond would render the office of state librarian
vacant. The legislature knew the law, and with such knowledge required the bond.
and with such knowledge required the bond. In view of the then existing law, can it be said
that the legislature intended to say respondent might give a bond or not, according to his
caprice or whim? Were they acting a legislative farce when they provided that he should
secure the state in the faithful discharge of the duties of this most important office? We have
no right to think so, and in our opinion the natural construction of the different statutes
referred to will not only relieve the legislature of a farcical intent, but it will also render
operative and beneficial all the statutes touching the subject in hand.
Sections 2633, 2929, 2930, and 2931, are not repugnant to section 5 of the act of March 1,
1883. It is said to be so because the last named law declares that the lieutenant-governor shall
be ex-officio state librarian at all events, and permits no other person to fill the office or
perform its duties; and consequently it is claimed that the requirement of a bond is a mere
directory provision, which may be disregarded with impunity by respondent, except so far as
he might be amenable to the criminal laws of the state. It is true, the legislature declared that
the lieutenant-governor should be ex-officio state librarian; but it was also declared that,
before entering upon the duties of the office, the lieutenant-governor, as ex-officio state
librarian, should execute a bond. The first provision was intended to be dependent upon the
last. It was not intended that the lieutenant-governor should hold the ex-officio office without
giving and keeping good his bond. Suppose the legislature had created the office of state
librarian, and declared that a certain person named in the statute should hold the office until
the next general election, but had provided that he should execute an official bond, with
sureties, before entering upon the duties of the office, can it be doubted that in such case the
person named would have been obliged to file his bond and keep it good, and that in case of
failure to do so there would have been a vacancy, which under section 8 of article V. of the
constitution, it would have been the governor's duty to fill? We think not, and yet it would
have been as true in that case that the person named was intended to be state librarian at all
events as it is now that the lieutenant-governor shall be.
In 1869 an act to create the county of White Pine, and provide for its organization," was
passed by the legislature.
provide for its organization, was passed by the legislature. It provided, among other things,
that certain named persons should be the officers of the county until the next general election.
M. W. Kales was made county treasurer. By the act itself no bonds were required. (Stat. 1869,
108.) But by the general law relating to county treasurers, each county treasurer, before
entering upon the duties of his office, was required to take an official oath and give a bond.
The same was true of other officers. Unquestionably their tenure of office depended upon a
compliance with the general law governing qualification, and yet the act creating the county
declared that they should be the county officers until the next general election. If the treasurer
had said, I will hold my office without taking any oath or filing any bond, because the latest
statute upon the subject declares that I shall be treasurer at all events, and permits no other
person to fill the office or perform its duties, he would have found out his error.
The case of People v. Sanderson, 30 Cal. 160, is cited as authority in support of the claim
that there is no vacancy in the office of state librarian, even conceding that the statement
filed, and the notice, together with the service thereof upon respondent, were sufficient in
law. We quote from the opinion: The next question is, was there a vacancy in the board of
trustees of the state library to be filled at the time of the appointment of the relator by the
governor? The act provides that the state library shall be under the direction and control of a
board of trustees, to consist of five members, as therein provided. It next provides that the
governor and the chief justice of the supreme court shall be ex-officio members of the board.
This designation is not of an individual or individuals by name, but of certain officers who,
by reason of their character as officers, are declared by the act to be members of the board.
The appellant in this case could not, under the act, hold the position of trustee except in his
character of chief justice of the supreme court. As a trustee he has no power to resign unless
he resigns the office on which it depends. There can be no vacancy of the place in the board
of trustees so long as there is a chief justice, and no person other than that functionary can fill
it, because the statute makes no provision for an incumbent of the place designed to be
occupied in the board by the chief justice, other than the person who may for the time be
invested with the superior office.
the superior office. The relator cannot fill the place intended by the act to be filled by the
chief justice as such, because he does not possess the official character which is essentially a
condition precedent to his capacity and power to hold the place alleged on his part to have
been vacant, by constitutional consequence, when he was appointed to it by the governor. The
legislature by the act evidently intended that the board of trustees should consist of five
members, and it is quite as evident that it was intended one of them should be the chief
justice of the supreme court, and no other person; but as the chief justice was, at the time, and
from thence hitherto has been, constitutionally incompetent to perform the duties of trustee,
the act, as to him, and the place to be filled by him, was and is inoperative and void. The
conclusion to which we have come on this point is that there was no place in the board of
trustees to be filled at the time relator was appointed, as set forth in the information, and that
the appointment of the relator trustee was without authority and void.
We cannot agree with many of the conclusions expressed above. In our opinion, under the
statutes of California, similar to ours, there was a vacancy in the board, which it was the duty
of the legislature, if in session, to fill; and if it was not in session, that duty devolved upon the
governor. It was decided by the court in that case that the chief justice, by reason of his
judicial position, could not, under the constitution, exercise the functions and duties of trustee
of the state library. In other words, it was in effect decided that one of the persons or officers
named in the act who should constitute the board in part was incompetent. The legislative
appointment as to that officer was null. It was as though it had not been made. But that fact
did not make the board consist of four instead of five. It still remained true that the board
should consist of five members. Why disregard that provision of the statute, simply because,
by reason of a mistaken idea of the constitution, the legislature had done a void act? The
statute of California (Wood's Dig. art. 2871) provided that every office shall become vacant
upon the happening of either of the following events, before the expiration of the term of such
offices. * * * (8) The decision of a competent tribunal declaring the election or appointment
void or the office vacant; and the second section of the statute creating the board
provided that, "in case of a vacancy for any cause in the board of trustees, the legislature
shall elect on joint ballot to fill such vacancy.
second section of the statute creating the board provided that, in case of a vacancy for any
cause in the board of trustees, the legislature shall elect on joint ballot to fill such vacancy. If
a vacancy occur when the legislature be not in session, the governor shall have power to fill
such vacancy until the ensuing session of the legislature. It seems to us that when the
supreme court, a competent tribunal, declared the appointment of the chief justice void for
constitutional reasons, the board, still consisting of five members, was but four-fifths full, and
that as to the other fifth there was a vacancy, which could have been filled by the proper
appointing power.
3. It is urged by counsel for respondent that the document filed with the governor and in
the office of secretary of state, and the notice claimed to have been served personally upon
respondent, were insufficient in law. It is undoubtedly true that, in order to be released from
future liability, a surety must proceed, in substance, according to the requirements of section
2930, Comp. L. Did Mr. Bliss do so in this case? It is provided by section 2921, Comp. L.,
that official bonds of all state officers, except that of the secretary of state, shall be approved
by the governor and filed in the office of secretary of state. Such were the requirements in
relation to the bond in question. (Stat. 1883, 102, Sec. 5.) Section 2930, Comp. L. provides
that sureties desiring to be released from bonds of state officers shall file with the governor,
who approved them, or with the secretary of state, in whose custody they are kept, a
statement in writing duly subscribed by himself, or some one in his behalf, setting forth the
name and office of the person for whom he is surety, the amount for which he is liable as
such, and his desire to be released from further liability on account thereof; and a notice
containing the objects of such statement shall be served personally on the officer. * * *
By sections 2929, 2930 and 2931, the legislature intended to accomplish three things:
First, to enable an unwilling surety to absolve himself from future liability; second, to protect
the state by giving it notice, through its proper officers, of the desire and intention of the
surety to be released; and, third, to give the officer time, after receiving notice, to make good
his bond, and thus escape the penalty of forfeiture. A compliance with the statute, sufficiently
strict to accomplish the objects intended, should be required.
From the written document filed with the governor and secretary of state, it cannot be
doubted that each of those officers were informed that Mr. Bliss was surety for respondent on
his official bond as ex-officio state librarian in the sum of one thousand dollars, and that he
desired to be released from further liability on account thereof. Those facts, and no others,
could be gathered from the paper.
It is said that the statute contemplates a statement and notice; two different papers, each
performing a distinct office, differing in form and substance. That they may be different is
true, but that they must be so is incorrect. If each contains all that is required to be put in both,
neither becomes invalid, because something is inserted therein which might have been left
out. A written statement is a series of facts or particulars expressed on paper. The one filed in
this case is in the form of a notice addressed to respondent, but it is a statement still. It is a
writing informing any one who reads it of all the facts required by the statute to be inserted in
a statement, and is sufficient to accomplish all the purposes intended. It is said that the notice
should contain the substance of the statement, and also the time when and place where the
statement was filed. This notice does contain the entire contents of the statement filed. It is a
true copy of the statement. But it need not inform respondent of the time and place of
filingfirst, because the statute does not require it; and, second, because such notification
would be useless and accomplish no useful end. Any officer must be presumed to know the
law. He knows that a surety who wishes to be released from his bond must file a statement in
one of two places, and serve a notice upon him. When he receives the notice he may and
should seek the proper depository of the statement, and there ascertain its contents, if one has
been filed, and if it has not, the notice goes for naught. If it has been filed, it is his duty to
proceed according to law and file a new bond. The objects of the statement must be
inserted in the notice. In other words, the surety, by the notice, must inform the officer what
induces him to take action in the premises; what he intends to accomplish. But he need not
use the exact language of the statute and say, I have filed a statement in the office of the
governor, and my object in so doing is to be released from your bond. It is enough if he
states the objects without specifying them as such. It is plain that the object of Mr. Bliss in
making his statement, in all that he did, was to be released as surety.
that the object of Mr. Bliss in making his statement, in all that he did, was to be released as
surety. That object only is contained in the notice. We think the written notice is sufficient in
form and substance.
4. But one other question remains for consideration: was the notice served on respondent
personally on July 31, 1885? After careful examination of all the evidence introduced in the
case, including surrounding circumstances, we are satisfied that it was.
It follows from the foregoing that respondent is not entitled to hold and enjoy the office of
state librarian of the state of Nevada, and, as to that office, a judgment of ouster must be
entered against him with costs. It is so ordered.
____________
19 Nev. 212, 212 (1885) State v. Gray
[No. 1215.]
THE STATE OF NEVADA, Respondent, v. CLARENCE
GRAY, Appellant.
Criminal LawChange of VenuePrejudiceExamination of Jurors by Court.It is proper for a district judge
to overrule a motion for a change of venue, on the ground that there exists in the community such a
prejudice that the accused cannot obtain an impartial trial, until it can be shown by an examination of a
sufficient number of jurors that a fair and impartial jury cannot be obtained.
ContinuanceAbsence of Material WitnessesDue Diligence.An affidavit for a continuance, on the ground
of the absence of material witnesses, that states that subpoenas for such witnesses had been issued and
placed in the hands of the sheriff for service, and that he had not found the witnesses, is defective when it
fails to show whether the officer was informed where such witnesses could be found, or that their
attendance could be procured at any subsequent term of court.
IdemOffer of Court to Issue Attachment to Bring Witnesses in.When the accused is informed where an
absent witness could be found, and the court offers to have an attachment issued to bring the witness into
court, but he insists upon a continuance, the court may properly proceed with the trial.
JuryChallenge to PanelBias of Officer.A challenge in writing to a panel of additional jurors, summoned
upon an open venire, directed to the sheriff, on the ground that the deputy sheriff who summoned forty
of said jurors was biased against defendant: Held insufficient in failing to state whether it was taken for
implied or actual bias.
19 Nev. 212, 213 (1885) State v. Gray
IdemDisputed Facts, How Tried.When the facts on which a challenge rests are disputed, the proper course
is to submit the question to triers; but if neither of the parties ask for triers to settle the issue of fact, and
submit their evidence to the judge, and take his determination thereon, the decision will be treated as
would the decision of triersas finaland not subject to exceptions, or review upon appeal.
Attempt to Commit FelonyAbandonment.If an attempt to commit a felony be abandoned voluntarily and
freely before the act is put in process of final execution, there being no outside cause prompting such
abandonment, this is a defense, but if such abandonment is caused by fear of detection, it is no defense if
the attempt progresses sufficiently towards execution to be per se indictable before such abandonment.
HomicideMurder in First DegreeKilling While Attempting to Rob.Where a party, while attempting to
perpetrate a robbery, shoots and kills the party attempted to be robbed, he is guilty of murder in the first
degree.
IdemInstructionNo Option.The jury may be instructed that if they find that the accused shot and killed
the deceased while attempting to perpetrate a robbery on him, they had no option but to find the
perpetrator guilty of murder in the first degree.
Recess of CourtJury Not AdmonishedNo Injury.The failure of the court to admonish the jury not to
converse among themselves, or with any one else, on any subject connected with the trial, or to form or
express any opinion thereon until the cause was finally submitted to them, will not affect their verdict
when it is clearly shown that the accused was not injured by such failure.
VerdictRecommendation to MercyRefusal to Strike Out.A recommendation to mercy constitutes no
proper part of a verdict; but a refusal of the court to strike it out is not prejudicial to defendant.
Appeal from the District Court of the Fourth Judicial District Humboldt county.
J. H. MacMillan and J. A. Hannah for Appellant.
I. The court erred in denying the motion for a change of venue. (Crim. Pr. Act, Secs.
306-8; People v. Lee, 5 Cal. 353; People v. Yoakum, 53 Cal. 566; People v. Bodine, 7 Hill.
147; People v. Webb, 1 Hill. 179; People v. Baker, 3 Abb. Pr. 42; State v. Millain, 3 Nev.
409.)
II. The court erred in denying defendant's challenge to the panel of jurors brought in on
the open venire. The court overruled the challenge of its own motion, without such challenge
being denied by the prosecution, and without examining the officer or hearing any other
evidence to rebut defendant's affidavit.
19 Nev. 212, 214 (1885) State v. Gray
davit. (Crim. Pr. Act., Sec. 330; Thomp. and Merr. on Jur., 146, 9; People v. Coyodo, 40 Cal.
586; People v. Welch, 49 Cal. 174.)
III. The court erred in refusing to give any of defendant's instructions based upon the
theory that when our statute uses the word murder it means murder and not homicide.
(Crim. and Pun., Secs. 8, 15, 17, 21; Whar. on Hom. Secs. 58-63; State v. Dowd, 19 Conn.
388; Ex-parte Chauncy, 2 Ashm. 227; Rhodes v. Com., 48 Penn. St., 396; Lane v. Com., 59
Penn. St. 371; Com. v. Jones, 1 Leigh. 610; Souther v. Com., 7 Grat. 678; Whar. on Hom.,
Sec. 92; State v. Lindsey, ante, 47.)
IV. Instruction that jury has no option is erroneous. It prohibits the jury from fixing the
degree of defendant's guilt. (State v. Dowd, supra; State v. Lindsey, supra.)
V. It was error to allow the jury to leave the court without being admonished and not in
charge of sworn officers. (Cr. Pr. Act, Secs. 380, 381; Bruckner v. State, 16 Wis. 333;
Thomp. and Mer. on Jur. Secs. 327, 339; Gibbons v. People, 23 Ill. 518; McIntyre v. People,
38 Ill. 514: Lewis v. People, 44 Ill. 452; McCann v. State, 9 Sm. and M., 466; Hare v. State,
4 How., Miss., 187; Jones v. State, 2 Blackf. 475, 478; Com. v. Shields, 2 Bush. 81; Chit. Cr.
L., 628; Staley v. Barhite, 2 Caines, 221; Evans v. State, 7 Ind. 271; Caw v. People, 3 Neb.
357, 374; State v. Parrant, 16 Minn. 178.)
M. S. Bonnifield, and S. J. Bonnifield, Jr., District Attorney of Humboldt county, for
Respondent:
I. The court did not err in overruling the challenge to the panel of jurors. (People v.
Renfrow, 41 Cal. 37; People v. Williams, 45 Cal. 25; Whar. Cr. Pl. and Pr., Sec. 688; People
v. Rathbun, 21 Wend. 509; People v. Mather, 4 Wend. 229; People v. Doe, 1 Mann. 451;
Stewart v. State, 13 Ark. 720; Ex-parte Vermilyea, 6 Cow. 555; O'Brien v. People, 36 N. Y.
276; Stout v. People, 4 Park. Cr. R., 132; Thomp. & Mer. on Jur., 238; Sanchez v. People, 22
N. Y. 147; People v. Bodine, 1 Denio. 281; State v. Wincroft, 76 N. C. 38; Dew v. McDevitt,
31 Ohio St., 139; U. S. v. McHenry, 6 Blatch. 503; Union Gold M. Co. v. Rocky Mountain N.
B., 2 Col. 565; Stewart v. State, 13 Ark. 720; Milan v. State, 24 Ark. 346; Costly v. State, 19
Ga. 614; 1 Bish. Cr. Pr., Sec. 906, note 6; Cancemi v. People, 18 N. Y. 137; People v. Cotta,
49 Cal. 166;
19 Nev. 212, 215 (1885) State v. Gray
N. Y. 137; People v. Cotta, 49 Cal. 166; People v. Vasquez, 49 Cal. 560.)
II. If the defendant killed Scott by shooting him with a shotgun, at the time and place
named in the indictment, in perpetrating or attempting to perpetrate a robbery upon said Scott,
he is guilty of murder in the first degree. (State v. Millain, 3 Nev. 473; State v. Newton, 4
Nev. 412; State v. Lopez, 15 Nev. 413; People v. Long, 39 Cal. 694.)
III. The fact that the jury was not admonished and officers were not sworn is not such
error as to warrant a reversal of the judgment or the granting of a new trial, as the defendant
suffered no injury therefrom. (State v. Harris, 12 Nev. 414; State v. Jones, 7 Nev. 409;
Carnaghan v. Ward, 8 Nev. 33; State v. Pritchard, 15 Nev. 100; People v. Boggs, 20 Cal.
433; State v. McMahon, 17 Nev. 373.)
W. H. Davenport, Attorney-General, and H. F. Bartine, also for Respondent, orally argued
the case and filed a brief.
Defendant appeals from a judgment of conviction of murder of the first degree upon
numerous exceptions.
1. Defendant applied for a change of venue on the ground of prejudice existing against
him in the county where the indictment was pending which would prevent him from having a
fair and impartial trial. The application was based upon affidavits tending to establish the fact
alleged, and resisted by counter-affidavits. It is unnecessary to consider the contents of the
affidavits. The district court overruled the motion for the time being, until it could be shown
by an examination of a sufficient number of jurors that a fair and impartial jury could not be
obtained. After examining eighty-one persons a jury was impaneled. The statute authorizing a
change of venue in criminal cases provides that before granting the order, the court shall be
satisfied that the representations of the moving party are true. The question whether a fair and
impartial jury could be obtained depended largely upon the opinions of witnesses. Opinions
differed widely, and the court adopted a very satisfactory test to ascertain the fact. The
practice pursued was approved in State v. Millain, 3 Nev. 433, and by the supreme court of
California in People v. Plummer, 9 Cal. 299,
19 Nev. 212, 216 (1885) State v. Gray
and in People v. Mahoney, 18 Cal. 181. In this connection it is said that defendant was
entitled, not only to an impartial jury, but to an impartial trial; and it is contended that the
possibility of an impartial trial was precluded by the existence of a prejudice which pervaded
the community. An affidavit against the motion denies the existence of such a feeling of
hostility as would prevent an impartial trial of the cause, and no fact has been presented
tending to show prejudice in this respect to the defendant upon the occasion of the trial.
2. Defendant moved the court for a continuance of the trial of the cause, upon the ground
of the absence of witnesses, and in support thereof relied upon his affidavit setting forth that
on the twenty third day of February, 1885, subpoenas were issued commanding Joshua
Winthrop, W. J. Thompson and John Doe (foreman of Reconzone sheep ranch) to be present
as witnesses at the trial, to take place on the seventeenth day of March succeeding, to testify
in his behalf; that the sheriff of the county, as appeared by his return, had been unable to find
any of these persons. But it is nowhere suggested that the sheriff was not diligent in
endeavoring to serve the process which had been placed in his hands. The affidavit fails to
state whether the officer was informed of the place of residence of any of themsave that
they had told affiant that they lived in Humboldt countyor where they could be found, or
where any information concerning their whereabouts could be obtained. Nor were any facts
shown from which the court could predicate a belief that their attendance could be procured
at any subsequent term of the court. The order of the district court denying the motion for a
continuance was correct in respect to the absence of the persons named, because of these
defects.
Another witness named Charles Barnard had been subpoenaed, but was not present at the
trial. The district attorney stated in open court that Barnard was at Lewis, in Lander county,
and thereupon the court stated that if defendant desired, an attachment would issue for
Barnard. Defendant did not at any time apply for such attachment, but declined to proceed
until attendance of witnesses was assured. Under these circumstances defendant cannot now
complain of the absence of this witness. (People v. Weaver, 47 Cal. 106.)
3. A challenge in writing was interposed in behalf of defendant to a panel of additional
jurors summoned upon an open venire directed to the sheriff, upon the ground of "a
material departure from the form prescribed by the statute in respect to the drawing and
return of said jury."
19 Nev. 212, 217 (1885) State v. Gray
open venire directed to the sheriff, upon the ground of a material departure from the form
prescribed by the statute in respect to the drawing and return of said jury. The challenge
specifies the particular grounds upon which it is rested, none of which are now urged except
this: that the deputy-sheriff who summoned forty of said jurors is biased against the
defendant. The statute authorizes a challenge to the panel founded on a material departure
from the forms prescribed by the statute in respect to the drawing and return of the jury, or on
the intentional omission of the sheriff to summon one or more of the jurors drawn, (Sec.
1947;) and also upon bias of the officer summoning jurors upon an open venire. (Sec. 1954.)
The challenge was imperfectly taken. The separate causes of challenge should have been
separately taken, and the challenge should have shown upon its face whether it was taken for
implied or actual bias. If for implied bias, it was the duty of the court to decide upon the
objection; if for actual bias, triers should have been appointed by the court for that purpose.
(Sec. 1968.) The challenge was over-ruled, and it is now urged that the question of bias
should have been determined by triers and not by the court. The exception was not placed
upon that ground in the district court. Regarding the challenge as one for actual bias, it was
competent for the court, by consent of the parties, to act as trier. Defendant not only failed to
ask for the appointment of triers, but submitted evidence in support of the challenge to the
court. This operated as a waiver of an examination by triers. It was decided in People v.
Mather, 4 Wend. 230, that when the facts on which a challenge rests are disputed, the proper
course is to submit the question to triers; but if neither of the parties ask for triers to settle the
issue of fact, and submit their evidence to the judge, and take his determination thereon, they
cannot afterwards object to his competence to decide that issue. The production of evidence
to the judge without asking for triers will be considered as the substitution of him in place of
triers; and his decision will be treated in like manner as would the decision of triers. (Com.
v. Gross, 1 Ashm. 218; People v. Rathbun, 21 Wend. 542; Stout v. People, 4 Park, Crim. R.
134; O'Brien v. People, 36 N. Y. 279; Schoeffler v. State, 3 Wis. 717; Barb. Crim. Law 355.)
The decision of the triers, and in this case by the court as trier, is final, and not the subject
of exception, and cannot be reviewed upon appeal.
19 Nev. 212, 218 (1885) State v. Gray
this case by the court as trier, is final, and not the subject of exception, and cannot be
reviewed upon appeal. (Sec. 2046 Comp. L.; People v. Cotta, 49 Cal. 166; People v.
Vasquez, Id. 560; People v. Taing, 53 Cal. 602.) If the challenge be considered as made for
implied bias it was properly over-ruled, because it does not set forth any ground upon which a
challenge for implied bias may be made. (Sec. 1964, Comp. L.) The record fails to show that
the challenge was denied. This omission cannot be construed as a confession of the challenge.
An appellant must affirmatively show error.
4. Upon the trial of the cause defendant testified: That on the night of the homicide,
between eight and nine o'clock in the evening, he entered the store building of Scott & Powell
(where said homicide was committed) with the intention of committing robbery by
intimidation; that he carried a shotgun with both barrels loaded with bird-shot, but uncocked;
that he had barley sacks upon his feet and a barley sack pulled over his head loose, without
being fastened, with small holes cut in front through which to look; that he requested
deceased to keep still, but when he saw the movements of Scott he abandoned all intention of
committing any robbery or other felony, and was endeavoring in good faith to leave the
premises without committing any felony whatever; that in so doing the barley sack on one of
his feet caught on something at the end of the counter; the mask became displaced so that he
could not see; the gun was jerked from defendant, and, in being so pulled away from
defendant, was discharged accidentally, and, without any voluntary act of defendant, deceased
was thereby killed, and defendant fled; that immediately before the gun was seized by
deceased, defendant cried out, Hold on, and I will go.'* * *
The court refused to instruct the jury upon the theory of an abandonment by defendant of
his felonious attempt, and its ruling in this respect is assigned as error. The doctrine of
abandonment of an attempt is thus stated in Whart. Cr. Law, Sec. 187: If an attempt be
voluntarily and freely abandoned before the act is put in process of final execution, there
being no outside cause prompting such abandonment, then this is a defense. But it is
otherwise when the process of execution is in such a condition that it proceeds in its natural
course, without the attempter's agency, until it either succeeds or miscarries.
19 Nev. 212, 219 (1885) State v. Gray
carries. In such a case no abandonment of the attempt, and no withdrawal from its
superintendence, can screen the guilty party from the results. * * * It should be remembered,
also, that if such abandonment is caused by fear of detection, it is no defense if the attempt
progress sufficiently towards execution to be per se indictable before such abandonment.
Thus, if a thief, when moving his hand towards a pocket, desists on seeing a detective, the
offense is made out. To the same effect, perhaps, may be cited two American decisions, in
which attempts at rape, abandoned before consummation, were held indictable. It is true that
it may be observed that in these cases the offense of felonious assault was complete prior to
the period of abandonment. More exactly illustrative of the principle is an English case, tried
before Chief Baron Pollock, in which it appeared that the defendant, having lighted a lucifer
match to set fire to a stack, desisted on discovering that he was watched. It was held, and
properly, that this abandonment of purpose was no defense. It must also be remembered that
if an attempt, e. g., an assault, is frustrated by force, such frustration is no defense.
The rule as thus declared fully meets the case made by the defendant, and sustains the
action of the district court in refusing the instructions. (See, also, State v. Elick, 7 Jones, N.
C., 68; Lewis v. State, 35 Ala. 380; Regina v. McCann, 28 U. C. Q. B. 516; State v. Blair, 13
Rich. Law. 97.)
5. The court declined to give a series of instructions presented in behalf of defendant,
based upon the position that the killing of the deceased was not murder of the first degree
unless committed with a deliberate and premeditated design to kill. The statute (section 2323,
Comp. Laws) provides that all murder which shall be perpetrated by means of poison, or
lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing, or
which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape,
robbery, or burglary, shall be deemed murder of the first degree. In considering a similar
statute of the state of New Hampshire, the supreme judicial court of that state well said: The
legislature did not intend that this species of killing should be murder of the first degree only
when accompanied by a deliberate, premeditated design to kill; for if such a design had been
a necessary ingredient to constitute murder of the first degree, the latter part of section 1
would not have been added.
19 Nev. 212, 220 (1885) State v. Gray
the latter part of section 1 would not have been added. If killing in the perpetration of a
robbery was murder in the first degree only when accompanied with such a design, it was
already included under the words other deliberate and premeditated killing,' and nothing
further need have been said about it. (State v. Pike, 49 N. H. 403.)
In the instructions upon this branch of the case, given at the request of the state, the word
kill is employed, instead of the statutory word murder; the statute declaring, not that
every homicide committed in the perpetration, or attempt to perpetrate arson, rape, robbery,
or burglary, shall be murder of the first degree, but that any murder so committed shall be
murder of the first degree. The following is one of the class of instructions upon this point: If
you find from the evidence, beyond a reasonable doubt, that the defendant, on the
twenty-fourth day of December, 1884, or thereabouts, in Humboldt county, state of Nevada,
did then and there kill R. H. Scott, named in the indictment, by shooting him with a shotgun,
and likewise find that such killing was done in perpetrating, or attempting to perpetrate, a
robbery upon said Scott by the defendant, then your verdict should be guilty of murder of the
first degree.
Section 2327, Comp. L., provides that when involuntary killing shall happen in the
commission of an unlawful act, which in its consequences naturally tends to destroy the life
of a human being, or is committed in the prosecution of a felonious intent, the offense shall
be deemed and adjudged to be murder. The killing of a human being, although unintentional,
is thus made murder when perpetrated by a person engaged in the commission of a felony.
The defendant was so engaged, as is shown by his own testimony. The words kill or
murder were, under these circumstances, of like signification and effect, and either could
properly have been used.
6. The court instructed the jury as follows: There are certain kinds of murder which carry
with them conclusive evidence of premeditation. These the legislature has enumerated in the
statute, and has taken upon itself the responsibility of saying that they shall be deemed murder
of the first degree. One of these classes of murder is when it is committed in the perpetration
or attempt to perpetrate a robbery. When a jury finds a murder has been committed, it has no
option but to find the perpetrator thereof guilty of murder of the first degree."
19 Nev. 212, 221 (1885) State v. Gray
the perpetrator thereof guilty of murder of the first degree.
The instruction is a copy of a portion of an instruction to be found in the report of the case
of People v. Sanchez, 24 Cal. 29. The complete instruction, as given in that case, was used in
explaining the degrees of murder, and the tests by which they could be ascertained. It was
highly commended by the supreme court of California in People v. Nichol, 34 Cal. 212, but
neither case was one of murder committed in the perpetration of felony. These decisions are
not authority, therefore, in this case. It is claimed that the concluding sentence of the
instruction takes from the jury the right to fix the degree of murder. It correctly defines the
degree which the law attaches to murder committed in an attempt to perpetrate a robbery, and
tells the jury in effect that if the facts come within the law as stated, they have no option but
to return a verdict of guilty of murder of the first degree. It is a statement to the jury of the
legal effect of facts, but does not direct them to find in any particular way. The right to
determine the degree of murder is, by statute, committed to the jury, but they are not deprived
of the right by being instructed in their duty under the law. It cannot be said, as matter of law,
that because the jury may fix the degree of murder, they may find any degree they please,
although they have the power to do so. The instruction was given in connection with others
which expressly declared the right and power of the jury to ascertain by their verdict whether
the offense was murder of the first or second degree, and if a reasonable doubt existed in the
minds of the jurors whether defendant was guilty of murder of the first degree or second
degree, he should not be found guilty of any greater offense than murder of the second degree,
and the instructions contained a form for a verdict of murder in the second degree.
7. At the conclusion of the evidence, and before the argument, the court took a necessary
recess of ten minutes for the purpose of allowing the jury to leave the room. During their
absence from the court room they were, by direction of the court, in charge of the sheriff and
his deputy. Affidavits in behalf of the state show that there was no communication with any
member of the jury upon the subject of the case, nor any communication whatever other than
innocent, passing remarks directed at jurors by persons in the hall through which the jury
passed. Upon taking the recess they were not admonished "not to converse among
themselves, or with any one else, on any subject connected with the trial, or to form or
express any opinion thereon, until the cause is finally submitted to them," as provided by
section 2005, Comp. L.;
19 Nev. 212, 222 (1885) State v. Gray
not to converse among themselves, or with any one else, on any subject connected with the
trial, or to form or express any opinion thereon, until the cause is finally submitted to them,
as provided by section 2005, Comp. L.; but it is clearly shown that the defendant was not
injured thereby. (People v. Colmere, 23 Cal. 632.)
8. The court refused to strike out of the verdict a recommendation to mercy. The
recommendation constituted no proper part of the verdict; but the ruling could not have
prejudiced the defendant. Further exceptions are found in the record, but they have not been
argued here, and the rulings upon which they are taken are manifestly correct, and discussion
thereon is unnecessary.
We have given a careful consideration to the case, and cannot discover that the record
contains any error, or that any injustice has been done the defendant. The judgment and order
denying a new trial must be affirmed, and the district court directed to fix a day for carrying
its sentence into execution. It is so ordered.
____________
19 Nev. 222, 222 (1885) State v. Harris
[No 1222.]
THE STATE OF NEVADA ex rel. W. H. DAVENPORT, ATTORNEY-GENERAL, Relator,
v. M. HARRIS, et al., Respondents.
Election of School TrusteesSection 2 of Act of 1885, 111, ConstruedUnconstitutional Provisions.Section
2 of the act of 1885, 111, providing for the election and term of office of school trustees for five years is
in conflict with the constitutional prohibition declaring that the legislature shall not create any office the
term of which shall be longer than four years, except as otherwise provided by the constitution, and is
void.
IdemInseparable Provisions.The unconstitutional provision is so inseparably connected with the other
provisions as to render all of the provisions of the act, in relation to the election of school trustees, void.
W. H. Davenport, Attorney-General, and H. F. Bartine, for Relator:
The last sub-division of section 2 (Stat. 1885, 111) creates terms of five years for school
trustees, and is, therefore, unconstitutional, and as there is no way by which this part of the
section can be segregated and nullified without leaving the act partial and incomplete, we
claim that all the provisions in relation to the election of school trustees are void.
section can be segregated and nullified without leaving the act partial and incomplete, we
claim that all the provisions in relation to the election of school trustees are void. (Sedg.
Const. Law, 413-4, and note a; Cooley Const. Lim., 214-219; Dells v. Kennedy, 49 Wis. 556;
Oatman v. Bond, 15 Id. 20; Slauson v. Racine, 13 Id. 398; State v. Perry, 5 Ohio St. 497;
Lathrop v. Mills, 19 Cal. 529; Reed v. Omnibus Co. 33 Id. 216; Campau v. Detroit, 14 Mich.
276; Hinze v. People, 92 Ill. 406; Com. v. Potts, 79 Pa. St. 164; State v. McClear, 11 Nev.
39.)
A. C. Ellis, for Respondents:
I. The fact that a part of the statute is unconstitutional will not authorize the court to
declare the remainder void. (Evans v. Job, 5 Nev. 342; Robinson v. Bidwell, 22 Cal. 386;
People v. Hill, 7 Cal. 103; Mills v. Sargent, 36 Cal. 379.)
This is a proceeding by quo warranto to determine whether the school trustees elected
under the school law of 1885, (Stat. 1885, 111), or those elected under the amendatory law of
1873, are rightfully entitled to the office of school trustees of Genoa school district No. 2.
The controversy arises upon the provisions of section 2 of the act of 1885. The section is as
follows: Sec. 2. An election for school trustees must be held in each district on the second
Saturday of May of each year at the district school house, if there be one; and if there be none,
at a place to be designated by the board of trustees. FirstThe number of school trustees for
any school district shall be three, except when the number of census children of the preceding
year exceeds four hundred; then the board of trustees shall consist of five members.
SecondIn new school districts, or in case of vacancy for any cause in an old one, the school
trustees shall be elected to hold office for one, two and three years, respectively, from the first
day of September next succeeding their election. ThirdExcept as provided in subdivision
second of this section, one trustee shall be elected annually to hold office for three years
where there are three trustees, and for five years where there are five trustees, or until his
successor shall be elected and qualified. (Stat. 1885, 112.)
It is admitted that the provision which declares that the term of trustee shall be five years
in boards of five trustees is in conflict with the constitutional prohibition declaring that
"the legislature shall not create any office the term of which shall be longer than four
years," except as otherwise provided by the constitution {Const. Art. 15, Sec. 11
of trustee shall be five years in boards of five trustees is in conflict with the constitutional
prohibition declaring that the legislature shall not create any office the term of which shall
be longer than four years, except as otherwise provided by the constitution (Const. Art. 15,
Sec. 11); but it is insisted that the general provisions of the act may be enforced in
school-districts of three trustees when the maximum term of office is three years, because this
provision is constitutional, and that as to school-districts of five trustees elections may be
held under the old law of 1873, in lieu of the unconstitutional clause. If the clause providing
for the election of five trustees be stricken out, and trustees for districts containing upwards
of four hundred census children be elected under the law of 1873, as suggested, the intention
of the legislature would be departed from in the following respects: (1) In school-districts of
upward of four hundred census children one trustee would not retire from the board of
trustees each year. (2) The election of trustees in such districts would take place at the general
biennial election, and not during the month of May of each year. (3) The full term of office in
districts of three trustees would be three years, and in other districts two and four years. (4)
An election in one class of districts would occur annually in the month of May, and in the
other biennially at the general election. An unconstitutional provision will not invalidate an
entire enactment of the legislature, unless the obnoxious portion is so inseparably connected
with the others that it cannot be presumed the legislature would have passed the one without
the other. It is true, said the supreme court of California, in Lathrop v. Mills, 19 Cal. 530,
that the constitution merely interdicts acts which oppose its provisions, and that if in any act
there be found a provision which is constitutional, that provision may be carried out, provided
the excepted provision is entirely disconnected from the vicious portions of the act, and the
legislature is presumed to intend that, notwithstanding the invalidity of the other parts of the
act, still this particular section shall stand. The saving of the particular provision, even when
not upon its face unconstitutional, in such instances is therefore a matter of legislative intent.
In order to sustain the excepted clause, we must intend that the legislature, knowing that the
other provisions of the statute would fall, still willed that this particular section should stand
as the law of the land.
Applying these principles, there is nothing in the provisions referred to suggesting an
intent upon the part of the legislature that any particular portion of the law of 1885 should
stand regardless of the constitutional defects of other portions. If portions were selected out
and upheld, two different systems for the election of school trustees would prevail, whereas
the legislature apparently intended to establish a plan which should be general throughout the
state. Such intent enters so entirely into the scope of the law that upon no principle would a
court be warranted in upholding separate provisions of the act. The provisions of the law
under which respondents M. Harris, J. Jones, and F. Klotz claim the office of school trustees
of Genoa school district No. 2 being unconstitutional and void, a judgment of ouster must be
entered against them, with costs. And it appearing that J. Q. Adams, H. Vansickle, and J. S.
Childs were lawfully elected school trustees of said school district at a general election held
upon the fourth day of November, 1884, and thereafter qualified and entered upon the
performance of their duties as said school trustees, and continued therein except as
interrupted by respondents, a judgment declaring said Adams, Vansickle, and Childs the
lawful school trustees of said school district must be entered. It is so ordered.
____________
19 Nev. 225, 225 (1885) Albion Consolidated Mining Company v. Richmond Mining
Company of Nevada
[No. 1216.]
ALBION CONSOLIDATED MINING COMPANY, Respondent, v.
RICHMOND MINING COMPANY OF NEVADA, Appellant.
New TrialAffidavits Used on HearingIndorsement.Affidavits used on hearing of motion for new trial, and
not indorsed by the judge or clerk at the time as having been read or referred to on the hearing of the
motion for new trial, will be stricken from the statement on appeal. (Dean v. Pritchard, 9 Nev. 232,
affirmed.)
Statement on AppealMaps and Models.Maps, models and diagrams, used to illustrate the evidence of the
witnesses, but not put in evidence, need not be embodied in the statement on appeal.
IdemDeedsDocumentary EvidenceTitle.Where deeds and other documentary evidence are introduced
to show title, and not objected to at the time as insufficient, such deeds and documentary evidence need
not be copied in full in the statement on appeal.
Company of Nevada
VerdictWhen Should be Set AsideNew Trial.Upon a review of the testimony: Held, that the verdict of the
jury could not be sustained; that the court did not err in setting it aside and granting a new trial.
Wren & Cheney, for Appellant.
Baker & Wines and Stewart & Herrin, for Respondent.
On the twenty-first day of October, 1873, E. H. Rose and others commenced an action in
the district court of Eureka county against the Richmond Company, (appellant herein), to
determine the right of possession to certain mining ground. A trial of that case in 1881 in the
district court resulted in a judgment for the Richmond Company, from which Rose took an
appeal to this court. The real controversy in that action depended upon the question of the
validity of the Uncle Sam location, owned by Rose and others, and of the St. George and
Victoria locations, and patents therefor from the United States, owned by the Richmond
Company. This court declared the St. George and Victoria patents to be absolutely null and
void, and directed the district court to render a proper judgment in favor of Rose and others
for the mining ground westerly of the line A, C, as designated upon the diagram in
evidence in that case. (Rose v. Richmond M. Co. of Nevada, 17 Nev. 25.) An appeal was
taken from this decision to the supreme court of the United States, and that court, on the
fourth of May, 1885, affirmed the decision of this court. (Richmond M. Co. v. Rose, 114 U. S.
576.)
The present action was brought to recover damages for the value of ore alleged to have
been taken by the Richmond Company from the mining ground west of the line A. C. The
complaint alleges that nine thousand two hundred and eight tons of ore were extracted and
removed by the Richmond Company, of the value of sixty-five dollars per ton, amounting to
the sum of five hundred and ninety-eight thousand five hundred and twenty dollars. It is
further averred that by the working of the mine plaintiff was damaged in the sum of ten
thousand dollars, making a total of six hundred and eight thousand five hundred and
twenty dollars.
Company of Nevada
the mine plaintiff was damaged in the sum of ten thousand dollars, making a total of six
hundred and eight thousand five hundred and twenty dollars. The jury before whom this cause
was tried found a verdict in favor of plaintiff for thirteen thousand two hundred and fifty
dollars. The plaintiff being dissatisfied with this verdict, moved the district court for a new
trial, which was granted upon two grounds, viz.: (1) Insufficiency of evidence to justify the
verdict. (2) Irregularity of the defendant, by which plaintiff was prevented from having a fair
trial. This appeal is taken by defendant from the order of the district court granting a new
trial.
1. The question whether there was any irregularity upon the part of appellant was, upon
motion of appellant, eliminated from the case. It was presented upon affidavits which were
not indorsed by the judge or clerk at the time as having been read or referred to on the
hearing of the motion for new trial, (Stat. 1869, 227, Sec. 197,) and upon the authority of
Dean v. Pritchard, 9 Nev. 232, the affidavits were stricken from the statement on appeal.
2. Appellant contends that the question whether the court erred in granting a new trial
upon the ground of insufficiency of the evidence to sustain the verdict cannot be considered,
because the statement, notwithstanding the recital therein that the above and foregoing
testimony was all the evidence offered and received in said action, affirmatively shows that
it does not contain all the evidence. This contention is based upon the fact that the statement
shows that a glass model of the mining ground was used at the trial in the district court to
illustrate the testimony of the witnesses, and that certain maps and diagrams were referred to
by the witnesses, which are not made a part of the statement on appeal. It is argued that,
without the model, maps and diagrams, a portion of the testimony will be unintelligible to
this court. It does not appear from the statement that the model, maps, or diagrams, or either
of them, were offered in evidence, hence they were properly excluded from the record on
appeal. Upon the trial of important mining cases it is quite frequently the custom of litigants
to exhibit a model of the mine to be used in the court room, instead of asking for an order to
have the jury take a view of the premises; the models being constructed in such a manner as
to show the various levels, drifts, tunnels, excavations, ore bodies, and such other matters
as may be in controversy, and to enable the witnesses to illustrate their testimony by a
reference thereto.
Company of Nevada
bodies, and such other matters as may be in controversy, and to enable the witnesses to
illustrate their testimony by a reference thereto. Before these models came in vogue it was,
and if a model is not used it is still, occasionally the practice to allow the jury to view the
premises for the purpose of enabling them the better to comprehend the testimony of the
witnesses; but the courts have never held that such a view was a part of the evidence in the
case which must be included in the statement on appeal. It is allowed for the purpose of
enabling the jury, by the view of the premises or place, to better understand and comprehend
the testimony of the witnesses respecting the same, and thereby the more intelligently to apply
the testimony to the issues on trial before them, and not to make them silent witnesses in the
case. (Close v. Samm, 27 Iowa, 508; Wright v. Carpenter, 49 Cal. 609.) If the model is
intended to establish any independent fact, and is introduced in evidence and used in the court
below for that purpose, provision should be made to have it brought before the appellate
court. In the present case the model was not intended to establish any fact, and was not used
for any such purpose. If the maps and diagrams had been offered in evidence, they should
have been embodied in the statement on appeal; but the fact that they, like the model, were
only used for the purpose of illustrating the testimony of the witnesses, and as they were not
intended to establish any fact in the case it was unnecessary to offer them in evidence. In
People v. Cochran the court said: A diagram is not a public nor private writing, nor is it
made by law primary, or secondary, or prima facie evidence of any fact or object represented
by it. When used on the trial of a case it is not used as evidence; it does not prove nor tend to
prove, in the sense of evidence, any fact; it is simply a figure drawn to suggest to the minds of
the jurors the relation between objects about which a witness is testifying, and may be drawn
on paper or on a stationary blackboard, which cannot be removed. The very construction of
the figure itself is defined by the testimony of the witness, and is illustratory of his testimony;
it partakes of it in the same way that the clearness of the expression of the witness partakes of
his evidence. (61 Cal. 552.)
The statement recites the fact that the defendant offered in evidence for the purpose of
showing its good faith in its entry and removal of the ore in controversy, patents from the
United States to the Victoria and St. George mining claims, which patents were issued by
the government of the United States to the defendant before the ore in controversy was
taken out, and were upon the same ledge and lode as the Uncle Sam claim, and covered
the ground from which the ore in controversy was taken;"
Company of Nevada
and removal of the ore in controversy, patents from the United States to the Victoria and St.
George mining claims, which patents were issued by the government of the United States to
the defendant before the ore in controversy was taken out, and were upon the same ledge and
lode as the Uncle Sam claim, and covered the ground from which the ore in controversy was
taken; that the plaintiff introduced in evidence notices of location of Uncle Sam, Albion,
Nos. 1, 2, 3, and Albion Consolidated, and introduced mesne conveyances to show it was
vested with the title of the original locators of said mining claims. The plaintiff also offered
in evidence the judgment roll in Rose v. Richmond M. Co. This judgment roll does not
contain the original judgment of the district court, which was reversed by this court, upon
appeal.
Appellant argues that, because the patents, the notices of location and mesne conveyances,
and the reversed judgment were not set out in full, the statement does not contain all the
evidence. This position is purely technical and without merit. The omissions complained of
are wholly immaterial. It was unnecessary to incumber the statement by copying the language
of the patents, even if they had been offered to prove title, unless there was an objection made
to their being admitted in evidence, which required an inspection of their contents. No
objection was made to the notices of location or mesne conveyances. The substance of the
documents, as recited in the statement, is all that was necessary to be inserted in the record on
appeal. Instead of copying into a statement for a new trial, or on an appeal, deeds and
transcripts of records, when no point is made on the construction of the language, a brief
statement of the instrument answers every purpose. (Knowles v. Inches, 12 Cal. 214.) The
judgment of the district court, which was omitted from the judgment roll, had been reversed
by this court, and was without force or effect, and if it had been included would not have
added anything of value to the statement.
3. Appellant argues that the evidence is insufficient to justify any verdict in favor of
respondent in this: that the statement fails to show any title in respondent to the mining
ground at the time of the alleged trespass. This position cannot be maintained upon any
sensible view of the evidence contained in the statement. The question of title was in issue
under the averments in the complaint and answer;
Company of Nevada
under the averments in the complaint and answer; but when the cause was tried there was no
controversy as to the ownership of the ground. The question had been settled by the decision
of this court in Rose v. Richmond M. Co. True, the decision of the supreme court of the
United States had not been rendered at the time of the trial of this case. The pendency of that
appeal might have been sufficient cause for a continuance of this case; but until that decision
was rendered it was certainly the duty of the district court to follow the decision of this court.
The St. George and Victoria patents having been declared absolutely null and void, would not
have furnished any muniment of title in favor of appellant, even if they had been offered or
considered in evidence for that purpose.
In the statement of the facts presented by the record on appeal in Rose v. Richmond M.
Co., it was stated by this court, in its opinion, that at the time of the trial of this action the
Albion Consolidated Mining Company was the owner of the Uncle Sam claim, and this
action is prosecuted for its benefit by the consent of the plaintiffs. But the question did not
depend alone upon the title as settled in that case. The statement, independent of the judgment
roll in Rose v. Richmond M. Co., affirmatively shows that respondent was the owner of the
mining ground during the time of the alleged trespass. Respondent introduced in evidence the
notice of location and mesne conveyances, hereinbefore mentioned, to show it was vested
with the title of the original locators of said mining claims. At what time was respondent
vested with the title to this property? There is but one answer to this question. The issue as
raised by the pleadings related to the ownership of the ground at the time of the alleged
trespass, to-wit, between the twenty-ninth day of December, 1879, and the twenty-seventh of
May, 1882. The evidence offered, not having been objected to, must be considered as relevant
and material to the issues presented by the pleadings. The statement that the locations and
conveyances were introduced to show that respondent was vested with the title, has reference
to the period of time mentioned in the pleadings. The case was tried upon the theory that
respondent was the real owner of the ground. The court so instructed the jury in explicit
terms: You are instructed that the documentary evidence produced by plaintiff is sufficient,
and does establish its ownership of the mining premises described in the complaint, lying
westerly of the line A.
Company of Nevada
premises described in the complaint, lying westerly of the line A. C, and you are instructed to
consider the plaintiff is such owner, so far as this trial is concerned, and was such owner at all
times between the twenty-ninth day of December, 1879, and the twenty-seventh day of May,
1882.
If the notices and conveyances offered were considered insufficient for the purpose of
showing title at this time, objections should, and doubtless would, have been made in the
court below. In the absence of any objection to their sufficiency, it was, as before stated,
unnecessary to copy the entire documents. It is seldom necessary to insert an entire deed in a
statement. When a conveyance is regular, and no question is made on it, it is sufficient to say
in the statement that a deed of such a date, conveying the land from A. to B., was introduced,
or that conveyances were introduced showing that the title of A. had become vested in B.
(Kimball v. Semple, 31 Cal. 664.)
4. Did the court err in granting a new trial upon the ground of insufficiency of the
evidence to justify the verdict? There was a decided conflict of evidence both as to the
quantity and value of the ore extracted and removed by appellant. The jury were primarily the
judges of the credibility and weight of the testimony of the respective witnesses. The district
judge, however, has jurisdiction, on motion for a new trial, to decide, as a question of fact,
whether the scale of evidence which leans against the verdict very strongly predominates
(Phillpotts v. Blasdel, 8 Nev. 76), and if there is, in his opinion, a clear preponderance of
evidence against it, he should not hesitate to set aside the verdict (State v. Yellow Jacket S.
M. Co., 5 Nev. 422); but in the exercise of this power he should be careful not to invade the
legitimate province of the jury, when they have manifested a fair and intelligent consideration
of the evidence submitted to them. (Solen v. V. & T. R. R. Co., 13 Nev. 135.) The district
court ought not to grant a new trial when there is conflicting evidence, except the weight of
evidence clearly preponderates against the verdict. If the district court grants a new trial
upon this ground, the appellate court will not interfere unless the weight of evidence clearly
preponderates against the ruling of the district court. (Treadway v. Wilder, 9 Nev. 70.)
With these well-settled principles we will proceed to review such portions of the evidence as
is deemed necessary for a determination of the question under consideration.
Company of Nevada
determination of the question under consideration. It is admitted that the ore does not work as
high as the assays; that the assay value of the ore is not the true value; that silver is assayed
at the rate of one dollar and twenty-nine cents, an arbitrary standard, although the actual
value of silver is very much below that. The answer denies the quantity and value of the ore
as alleged in the complaint; but admits that the defendant dug down, mined, and removed
from the mining ground two thousand one hundred tons of ore of the value of four dollars per
ton, and that said mining claim was thereby damaged in the sum of eight thousand four
hundred dollars, and that other damage was committed, as alleged in the complaint, to the
extent of five hundred dollars. The ore was taken from different places in the mine,
designated by the witness as ore body B, South-east Upraise, Fire Drift, Gooseneck, Fort
Probert, Leadville, and Jumbo Cave; the greatest quantity being taken from ore body B. All
the ore taken out by the Richmond Company, says the witness Wescoatt, was between
December, 1879, and December, 1881, except Jumbo Cave. The ore was taken from Jumbo
Cave in the summer or fall of 1882. There is a variance in the testimony of the respective
witnesses as to the proportion of waste to be deducted from the amount extracted. For the
purpose of this opinion, we shall adopt, without discussion, the evidence as offered by
appellant, that from the gross amount there should be deducted one-third for waste, and
fourteen per cent. for moisture.
Ore Body B. Testimony upon the part of respondent: E. N. Robinson, who is a civil and
mining engineer and surveyor, and was superintendent of respondent's mine, testified that
there had been six thousand and sixty-nine tons of ore taken out by the Richmond Company,
of the value of sixty dollars per ton gold and silver, and twenty-six per cent. lead. N.
Wescoatt, who is a civil and mining engineer and surveyor, and who was in the employ of the
Richmond Company from 1877 to 1882, and was assistant superintendent of the mine during
the last three years of his employment, testified that he was very familiar with the ore taken
from ore body B. * * * I think it would average from fifty to fifty-five dollars in gold and
silver, and a considerable percentage in lead. Thomas J. Reed, a civil engineer and
superintendent of mines, estimates the value at from fifty to sixty dollars per ton.
Company of Nevada
the value at from fifty to sixty dollars per ton. J. N. Williams, who has been a foreman in the
mine of the Albion Company, and was well acquainted with the character of this ore, testified
that from his experience as a miner the ore taken out would average fifty dollars per ton; it
was a good grade of ore. Other testimony was offered tending to show that the value of this
ore was from fifty to sixty dollars per ton.
Testimony upon the part of appellant: R. Rickard, who was the superintendent of the
Richmond Company when the ore was extracted and removed, testified that he had a good
idea of the quality of all the ore taken out by the Richmond Company west of the A C line. I
think it would assay in gold and silver about thirty-five dollars or forty dollars per ton; that is,
the ore taken from ore body B; that the grade of Richmond ores smelted was about fifty
dollars on an average. We have lots of ore from the Richmond mine of a higher grade than
ore body B; that the average assay of ore from the Richmond mine is from forty-five dollars
to fifty-five dollars per ton. Ore bodies vary considerably; generally lower grade near the
edges. I think thirty-five dollars to forty dollars a fair average; that the profit on
thirty-five-dollar ore was two dollars and ninety-eight cents per ton, and the average of
thirty-five-dollar and forty-dollar ore was five dollars and twelve cents per ton. I made a
mistake; it is three dollars and sixty-one cents per ton. He then made the following
calculation: Take one hundred tons of ore of the value of thirty-five dollars per ton,
twenty-three dollars silver and twelve dollars gold, contains one thousand seven hundred and
seventy-eight ounces of silver and fifty-eight ounces of gold, and twenty-five tons of lead;
after deducting smelting losses leaves one thousand six hundred and thirty-five and
seventy-six one-hundredths ounces of silver, fifty-one and four one-hundreth
[one-hundredths] ounces of gold, and twenty-one and twenty-five one-hundreth
[one-hundredths] tons of lead. Value of the lead at New York prices, one thousand seven
hundred and forty-nine dollars and ninety-three cents; silver, one thousand seven hundred and
thirteen dollars and five cents; gold, one thousand one hundred and twelve dollars and
fifty-eight cents; total, four thousand four hundred and seventy-five dollars and fifty-six
cents; further deductions, freight, thirty dollars and fifty-seven cents per ton to San Francisco
on the total weight, separating, thirty-five dollars per ton, equals sixty-five dollars and
fifty-seven cents per ton; deductions, one thousand three hundred and thirty-six dollars
and ninety-three cents, and commissions, forty-four dollars and seventy-five cents;
Company of Nevada
ton to San Francisco on the total weight, separating, thirty-five dollars per ton, equals
sixty-five dollars and fifty-seven cents per ton; deductions, one thousand three hundred and
thirty-six dollars and ninety-three cents, and commissions, forty-four dollars and seventy-five
cents; total, one thousand four hundred and thirty-eight dollars and eleven cents. Total value
net crude bullion, three thousand thirty-seven dollars and forty-five cents, or thirty dollars and
thirty-seven cents per ton; mining and smelting, twenty-four dollars and ninety-four cents per
ton; deduct from the net yield, leaves five dollars and forty-three cents per ton net profit on
thirty-five-dollar ore.
Upon his cross-examination he testified that the market value of fifty-dollar ore would be
twenty-four dollars and eighty-five cents per ton; of fifty-five dollar-ore it would be
twenty-eight dollars and seventy-two cents; and of sixty-dollar ore it would be thirty-two
dollars and twenty cents. Upon redirect examination he testified as follows: I stated
yesterday that the market value of ore that assayed fifty dollars per ton was twenty-four
dollars and ninety-eight cents; twenty-seven per cent. lead, deductions for mining and
transporting, nine dollars and thirty six cents, leaves fifteen dollars and sixty-two cents, which
is the market value of fifty-dollar ore. Forty-dollar ore, with the deductions, eight dollars and
fifty three cents per ton, and thirty-five-dollar per ton ore, with the deductions, would leave
five dollars and five cents per ton as the market value.
In relation to the amount of ore taken out he testified as follows: I have heard the
testimony in relation to the sets of timber in ore body B. I have heard it stated that there were
two hundred and seventy-two sets of timbers taken out by the Richmond Company. As I
calculate it, fifteen cubic feet of ore to the ton, there would be in ore body B three thousand
four hundred and twenty-seven tons. After deducting one-third for waste there would be
two-thousand two hundred and eighty-five tons; after deducting fourteen per cent for
moisture, there would be one thousand nine hundred and sixty-five tons; there would be a still
further reduction if all the sets were not full sets.
Testimony was offered by appellant to show that the sets of timber in ore body B were not
full sets, and it is claimed that a still further reduction of the number of tons testified to by
Mr. Rickard should be made upon this account.
Company of Nevada
still further reduction of the number of tons testified to by Mr. Rickard should be made upon
this account. The numbers of the timber sets were taken from the testimony of Mr. Wescoatt,
who testified that while in the employ of the Richmond Company he went into that portion
of the mine whenever it was necessary to survey for the sets of timbers. I went into the mine
once or twice a month and made a record of all the sets I could find. I had charge of the
underground workings. Appellant introduced a letter from Mr. Wescoatt, written on the
eighteenth day of January, 1885, in reply to a letter from Mr. Rickard, in which he stated that
in the summer of 1882 he spent several months compiling maps for the geological survey of
Eureka district, and that during this time he made a horizontal sectional map showing all the
timber sets that had been put in the Richmond ground between certain points, and that this
map showed that the Richmond Company had taken out about three hundred sets of timbers
N. W. of said A C line. Mr. Wescoatt, upon being called in rebuttal, testified as follows: I
meant just what I said in the letter. It did not refer to ore taken where there was no timber sets
put in. In the estimate, two hundred and seventy-two sets that absolutely existed; then I
reduced the Gooseneck, made twenty-four sets, and five sets from the thirteenth, made three
hundred and one sets. There was ore taken from other pointsFire Drift, Fort Probert, and
end of Albion main level, Jumbo Cave, and some other places of which I had no means of
estimating. In counting the timber sets, reduced them to full sets; made three hundred and one
full sets; didn't count the parts of sets as full sets.
This testimony, although severely criticised and commented upon by appellant's counsel,
is not contradicted. Appellant's witnesses all testified that the sets of timbers were not full
sets; but none of them said that if reduced to full sets there would not be three hundred and
one full sets. They did not give, or pretend to give, the number of sets, independent of
Wescoatt's testimony, but simply stated that the sets of Richmond timbers were not full sets.
Returning to the question of the value of the ore, the statement shows the following estimates,
made by practical miners in the employ of the Richmond Company: Thos J. Pearce: I should
judge that the ore in ore body B would assay from thirty-five to forty dollars per ton. John G.
Jury: "I think ore body B would assay on the whole about forty dollars per ton.
Company of Nevada
Jury: I think ore body B would assay on the whole about forty dollars per ton. S. Longley, a
foreman in the mine, I worked in ore body B two months. * * * I am well acquainted with
the ore in the Richmond mine. I can generally estimate about what the ore will assay. I think
that ore would assay in the neighborhood of forty dollars per ton, in gold and silver. I think
that would be a good average.
Southeast Upraise. Respondent's testimony: Robinson testified that there was seven
hundred and ninety-three tons of ore in that ore body. Appellant's testimony: Rickard
testified that the upper part of this ore body was taken out by the Richmond; there was five
hundred and twenty tons in that; after deducting waste and moisture, there would be two
hundred and ninety-eight tons net.
Fire Drift. Respondent's testimony: Robinson testified that the ore was extracted from this
place in August, 1880; he estimated the amount at three hundred tons, and thought it would
assay up to eighty dollars per ton and thirty per cent. lead. Appellant's testimony: Rickard
said: I know the place called Fire Drift. We took out a few sets there. I expect it is correctly
represented here on the modelabout three hundred tons. After deducting one-third waste
and fourteen per cent. moisture there would be one hundred and seventy-two tons.
Gooseneck. Respondent's testimony: Wescoatt testified that the ore from the Gooseneck
was taken out some time in the early part of 1881. Robinson estimates the amount at four
hundred and ninety-five tons. Appellant's testimony: Rickard testified as follows: In the
Gooseneck, the Richmond took out two hundred and fifty-six tons gross; after deducting
one-third for waste and fourteen per cent. for moisture there would be one hundred and
forty-three tons. W. J. Retallick, upon his cross-examination, said that the ore in Gooseneck
was pretty rich; would assay from sixty to seventy dollars per ton. Lew. Dunkel: I think
the ore in the Gooseneck would assay forty or fifty dollars per ton.
Fort Probert. Respondent's testimony: Robinson estimated the amount of ore taken out by
the Richmond Company at six hundred and fifteen tons, and said: The ore in Fort Probert
was very high grade ore; the remnants of the ore that was left was very high grade ore; went
high; seventy-five dollars per ton in gold and silver.
Company of Nevada
ton in gold and silver. I do not remember about the lead in that. Appellant's testimony:
Rickard testified that Fort Probert was a natural cave. I don't think we ever took any ore out
of there. Upon his cross-examination he said: I don't think the Richmond took out any ore
from what is called Fort Probert. My recollection is none taken out. I may be mistaken about
that. My impression is, though, there was none taken out; wouldn't swear one way or the
other. Longley said: We took some ore out down at thirteenth chamber; I think from Fort
Probert about two hundred tons. It was taken out in 1880. Making the deduction for waste
and moisture as in the other ore bodies, would leave the amount one hundred and five and
one-third tons.
Leadville. Respondent's testimony: Robinson estimates the amount of ore taken out at six
hundred and thirty-five tons, and states its value at fifty dollars per ton and fifty per cent.
lead. There is some confusion as to the dates when this ore was removed. Wescoatt testified
that the Richmond Company took the ore in the latter part of 1879-1880; * * * November or
December, 1879. * * * We struck Leadville in November, 1879, and it was taken out in
December. Upon his cross-examination he said: The body of ore in Leadville was
discovered in November, 1879, and we started to take it out in December. I think there had
been but a few sets taken out by December 26, (29), 1879. It was all taken out by May, 1880.
Appellant's testimony: Rickard testified that Leadville was not taken out by us. Upon his
cross-examination he said: I don't think Leadville was taken out by us. I swear it was not
taken out by us. Longley said: I cannot recollect definitely how much ore was taken out of
there. I think about one hundred and fifty tons. Reducing this amount as in other ore bodies
by deducting the waste and moisture would make seventy-nine tons net.
Jumbo Cave. Robinson testified that one hundred and thirty-six tons of ore were taken
out by the Richmond Company from this place; but as there is no positive testimony that this
ore was taken out before the twenty-seventh of May, 1882, within the time alleged in the
complaint, we exclude it.
The foregoing is a fair synopsis of the testimony with reference to the particular ore
bodies. There is a great deal of testimony in the statement on appeal as to the working of
similar ore from the same ore bodies by the respondent;
Company of Nevada
similar ore from the same ore bodies by the respondent; the samples of ore assayed; the
number of cubic feet of ore to make a ton; the size and dimensions of the timbers used in the
mine; and other matters tending more or less to corroborate the claims of the respective
parties as to the amount and value of the ore. No separate account was kept by the Richmond
Company of the number of tons of ore, or of its value, removed and smelted by it from the
ground west of the A C line.
The testimony introduced by respondent tended to show that the ore in ore body B was of
greater value than the ore in other parts of the mine, and that the ore from this place was
mixed with ore from other places by the Richmond Company in order to reduce its value.
Wescoatt testified that the ore taken out from ore body B was mixed in the chutes and run
into the cars and went down to the furnaces with ores from other parts of the mine, and that
the Richmond Company was in the habit of taking ore from ore body B at that time and
mixing it with ore of lower grade from other parts of the Richmond mine, to make it of an
average value.
The testimony offered upon the part of appellant tended to show that the ore from this ore
body was of a less grade than the ore from other parts of the mine. Longley testified that the
Richmond Company mixed other ore from different parts of the mine with the ore from ore
body B to raise the grade of ore body B.
There was also general testimony given to Mr. Rickard as follows: Three hundred sets of
timbers will represent the whole amount taken out by the Richmond Company, including
waste; two thousand one hundred and fifty tons in all taken out by the Richmond Company
west of the A C line. Upon his re-direct examination he said: In my judgment there was two
thousand one hundred and fifty tons of ore taken out by the Richmond Company west of the
A C line, from the Albion ground. I don't know whether there was any taken from Fort
Probert or not. The value of the ore taken was about forty dollars, assay value, per ton.
Taking the amounts given by him in each of the ore bodies, we have in ore body B, one
thousand nine hundred and sixty-five tons; Southeast Upraise, two hundred and ninety-eight
tons; Fire Drift, one hundred and seventy-two tons; Gooseneck, one hundred and forty-three
tons; a total of two thousand five hundred and seventy-eight tons;
Company of Nevada
hundred and seventy-eight tons; add to this, as testified by Longley, one hundred and five and
one-third tons from Fort Probert, and seventy-nine tons from Leadville, and we have a total of
two thousand seven hundred and sixty-two and one-third tons, as testified to by appellant's
witnesses. From this, perhaps, there should be deducted, say fifty tons, (which is a very liberal
estimate), for the amount of ore taken from Leadville prior to the twenty-ninth of December,
1879. This would leave a total of two thousand seven hundred and twelve and one-third tons
net. The testimony upon the part of respondent makes about nine thousand tons gross. The
deductions for waste and moisture claimed by appellant would leave the amount over four
thousand five hundred tons net. Estimating the amount of ore and the value upon the
testimony of respondent's witnesses, we have many thousands of dollars more than the
amount found by the jury. Estimating the net amount of ore at two thousand seven hundred
and twelve and one-third tons, as testified to by appellant's witnesses, and its value at forty
dollars per ton, as testified to by some of the witnesses for appellant, and the market value at
eight dollars and fifty-three cents per ton, as testified to by Mr. Rickard, we have the sum of
twenty-three thousand one hundred and thirty-six dollars and twenty cents; adding the
admitted damages of five hundred dollars, and legal interest for three years, would make a
total of thirty thousand seven hundred and twenty-seven dollars and six cents, which is
seventeen thousand four hundred and seventy-seven dollars and six cents more than the
verdict of the jury. Even estimating it at thirty-five dollars per ton, the lowest amount named
by any witness, and the market value at five dollars and five cents, which is the lowest
amount named by Rickard in connection with any of his calculations as to the expenses of
reducing the ore, and deductions to be made from the assay value, we have the amount of
thirteen thousand six hundred and ninety-seven dollars and twenty-eight cents; with damages
and legal interest added as above, it amounts to eighteen thousand four hundred and fifty-six
dollars and forty-six cents, which is five thousand two hundred and six dollars and forty-six
cents in excess of the amount found by the jury.
These conclusions render it unnecessary to consider whether the district judge, by his
criticisms upon the appellant's witnesses, in granting a new trial, exhibited any passion or
prejudice;
Company of Nevada
dice; or whether from the testimony it is made to appear that appellant acted innocently and in
good faith in removing the ore, or was guilty of such culpable negligence as to make it liable
for the gross value of the ore, and some other minor questions argued by counsel.
The verdict of the jury cannot be sustained upon any impartial, rational, or intelligent
consideration of the evidence as set forth in the statement on appeal.
The order of the district court granting a new trial is affirmed.
____________
19 Nev. 240, 240 (1885) State v. Marshall
[No. 1224.]
THE STATE OF NEVADA, Respondent, v. ANTONE
MARSHALL, Appellant.
Criminal LawContinuanceAbsence of WitnessAffidavit.An affidavit for continuance on the ground of
the absence of a witness is fatally defective when it fails to show that there are not other persons by whom
the defendant could prove the same facts that he expected to prove by the absent witness.
Appeal from the District Court of the Third Judicial District, Esmeralda County.
J. F. Boller, for Appellant.
W. H. Davenport, Attorney-General, for Respondent.
Appellant was convicted of the crime of manslaughter upon an indictment charging him
with murder. The only exception arises upon the order of the district court denying a motion
for a continuance of the cause, made upon the ground of the absence of one of the witnesses
for the defendant. The affidavit upon which the motion is based is fatally defective in this; it
fails to show that there are not other persons by whom the defendant could prove the same
facts that he expected to prove by the absent witness.
____________
19 Nev. 241, 241 (1885) Estate of Anthony McMahan
[No. 1225.]
In the Matter of the Estate of ANTHONY McMAHAN,
Deceased. R. H. ELAM, Executor, Appellant.
Executor of EstateFinal AccountOrder to Pay Money to County TreasurerVoid.Where an executor
files his final account, an order of the court directing him to pay over money in his hands to the county
treasurer, to be placed to the credit of the heirs and devisees of the testator, and to be paid to such heirs
and devisees on the order of the court after proof of identity, is void.
Appeal from the District Court of the Sixth Judicial District, Lincoln County.
C. H. Patchen and Trenmor Coffin, for Appellant:
No brief on file for Respondent:
The executor of this estate presented to the district court an account of his receipts and
disbursements as a final account of his executorship, and on the day set for the settlement of
the account the report of the executor was confirmed, and the account allowed and
approved by the court. The portion of the order appealed from reads as follows: The said
executor is hereby ordered to forthwith pay into the hands of the county treasurer of Lincoln
county, state of Nevada, the above-mentioned sum of one thousand and eighty-seven dollars
and fifty cents; said sum to be by said treasurer placed to the credit of the heirs and devisees
of said Anthony McMahan, deceased, and to be by said treasurer paid to said heirs or devisees
upon the order of this court, after proof of identity as such.
The sum of one thousand and eighty-seven dollars and fifty cents was the amount shown
to be in the hands of the executor. If the estate was not in a condition to be closed when the
final account of the executor was presented, it was the duty of the court to give such
reasonable extension of time as might be necessary for a final settlement of the estate. (1
Comp. L. 729.) The order requiring the executor to pay the moneys in his hands to the
county treasurer was without authority of law, and void.
19 Nev. 241, 242 (1885) Estate of Anthony McMahan
his hands to the county treasurer was without authority of law, and void. (Willson v.
Hernandez, 5 Cal. 443.) The costs of this appeal should be paid out of the estate. (1 Comp.
L. 791.)
The order appealed from is reversed, and the cause remanded.
____________
19 Nev. 242, 242 (1885) Thompson v. Crockett
[No. 1218.]
BANK, et al., L. L. CROCKETT, Appellant.
Unpaid Subscription to Bank CorporationEstate of Deceased PersonsPresentation of Claim.In a suit in
equity against the representative of a deceased person, to recover the amount of the unpaid subscription,
of deceased, to a bank corporation, it is not necessary that the claim should be presented for allowance, as
ordinary claims are required by statute to be presented, for the reason that such unpaid subscription is a
trust fund for the benefit of the creditors of the bank, and constitutes no part of the estate of a deceased
person.
IdemPleadingsVarianceImplied AgreementThe testimony did not show any express agreement upon
the part of defendants to pay their unpaid subscription; but did show that the defendants deposited a
certain amount with the bank as its business capital, and agreed among themselves not to be liable for any
further amount: Held, that defendants were liable upon an implied, rather than upon an express,
agreement, and that the variance between the pleadings and the evidence was immaterial, as it could not
have misled the defendants.
IdemCall for Assessment not NecessarySuit in Equity.A formal call is not necessary before maintaining a
bill in equity to compel payments to subscription of the capital stock. A bill in equity, where there are
many creditors, is the proper remedy.
Thompson v. Reno Savings Bank, ante, 103, Affirmed.
Clarke & King, for Appellant:
I. Plaintiff's failure to make any effort to induce action, by the bank corporation, to collect
the unpaid subscription is fatal to his right of recovery in this action.
II. The liability of each stockholder is several, so that there is no joint interest in the
trustees influencing them not to enforce collection, and no collusive combination for such
purpose is pretended.
is no joint interest in the trustees influencing them not to enforce collection, and no collusive
combination for such purpose is pretended. (Bill v. Western Union T. Co., 22 Blatchf. 191;
Foote v. Cunrod M. Co., 5 McCrary, 251; Tuscaloosa v. Cox, 68 Ala. 71; Morawetz on
Corp., Sec. 384; Newby v. Oregon C. R. R. Co., 1 Saw. 63; Memphis v. Dean, 8 Wall. 64;
Hawes v. Oakland, 14 Otto, 450; Huntington v. Palmer, Id. 482; Dannmeyer v. Coleman, 8
Saw. 51; Pom. Eq. Jur., Sec. 1095; Thomp. Liab. Stock., Sec. 105; Franklin v. Lewiston, 68
Me. 43; Newburg v. Miller, 5 Johns. Ch. 101; Nave v. Nave, 7 Ind. 122; Bansemer v. Mace.
18 Ind. 27; Ex-parte Banks, 28 Ala. 28; Ex-parte Simonton, 9 Port., Ala., 390.)
III. The remedy expressly provided is a summary and peculiar one, in derogation of the
common law; it is a new remedy and a mandatory one; it is the exclusive remedy and must be
strictly pursued. (Rensselaer v. Barton, 16 N. Y. 457; Small v. Herkimer, 2 N. Y. 330; Spring
v. Russell, 7 Greenl. 273; Leake v. Blasdell, 6 Nev. 40; Bouton v. Dry Dock Co., 4 E. D.
Smith, 420; Louisiana Paper Co. v. Waples, 3 Woods, 34; Steacy v. Little Rock, 5 Dill. 348;
Banty v. Buckles, 68 Ind. 49; Katama Land Co. v. Jernegan, 126 Mass. 155; Peck v.
Coalfield Coal Co., 3 Ills. App. 619; Kennedy v. Sacramento, 10 Saw. 29; McKelvey v.
Crockett, 18 Nev. 238; Cal. Sugar Co. v. Schafer, 57 Cal. 396.)
IV. The facts pleaded are not proved. The facts proved are not pleaded. There is a total
and fatal variance between the allegations and the proofs. (Baugher v. Eichelberger, 2 W. Va.
217; Floyd v. Jones, 19 W. Va. 359; Elliot v. Amazon I. Co., 49 Mich. 579; Bailey v. Ryder,
10 N. Y. 370.)
V. The demurrers should have been sustained as to the estate of Crocker, because the
claims were never presented for allowance. (1 Comp. L. 318; Eustace v. Jahns, 38 Cal. 3, 23;
Pitte v. Shipley, 46 Cal. 154; Harp v. Calahan, 46 Cal. 222, 231.)
VI. The judgment should be reversed because it gives Thompson a judgment for a greater
sum than he asks for. (Ad. Eq., 257-262; Williamson v. Wilson, 1 Bland Ch. 430; Heath v.
Bishop, 4 Rich. Eq. 46; Carlton v. Felder, 6 Rich. Eq. 58; Brenan v. Burke, 6 Rich. Eq. 200;
Farrar v. Haselden, 9 Rich. Eq. 337.)
John F. Alexander, for Respondent:
Plaintiff had no such claim as is contemplated by the statute for presentation. (Belloc v.
Rogers, 9 Cal. 123; Heutsch v. Porter, 10 Id. 559; Fallon v. Butler, 21 Id. 30; Willis v.
Farley, 24 Id. 499.)
This is a suit in equity to recover the amount of unpaid subscriptions to the capital stock of
the Reno Savings Bank. Two of the defendants are representatives of deceased persons. They
object to the proceedings because of the admitted failure of respondent to comply with the
requirements of the probate law in the matter of the presentation for allowance of the
demands sued upon.
The law requires (section 611 Comp. Laws) if a claim be not presented within ten months
after the first publication of notice, it shall be barred forever, unless certain exceptions exists
immaterial here. Again (section 618): No holder of any claim against an estate shall maintain
any action thereon, unless the claim shall have been first presented to the executor or
administrator. Courts of equity uniformly regard the unpaid capital stock of a corporation as
a trust fund, held in reserve by the stockholders for the benefit of the creditors. The
stockholders are trustees of the creditors, and suits to establish and enforce the trust are
maintained against the representatives of deceased persons, upon the theory that the decedent
held money equal to the amount of his unpaid subscription, in trust for the creditors, and that
the fund, although incapable of identification, has passed into the hands of the executor or
administrator. Such a fund is properly no part of the estate of a deceased person. The
deceased stockholders were trustees, and not debtors of the bank's creditors. No necessity,
therefore, existed for the presentation of any demand before commencing suit. (Gunter v.
Janes, 9 Cal. 643.)
The bill proceeds upon the ground of an indebtedness arising out of a subscription by the
defendants to the capital stock. The testimony shows that no express agreement was made to
take any portion of the capital stock of the bank; but that the defendants L. L. Crockett, James
H. Kinkead, R. H. Crocker, deceased, and others, deposited thirty thousand dollars with the
bank as its business capital, and agreed among themselves and the bank that they should
not be liable for the payment of any further amount of money for the purposes of the
bank.
the bank as its business capital, and agreed among themselves and the bank that they should
not be liable for the payment of any further amount of money for the purposes of the bank.
Upon these facts, it is said that a fatal variance exists between the pleadings and proof. The
agreement established was an implied rather than an express agreement. The variance was
immaterial, and could not have misled the defense. (Smith v. Lippincott, 49 Barb. 398.)
Moreover, the decree may be sustained upon the ground that the answers of the defendants set
forth, by way of defense, the facts above stated as having been introduced in evidence. The
relief granted is therefore within the issue made and litigated. (1 Comp. L. Sec. 1211.)
Objection is also made to the remedy awarded. It is said that if plaintiff is entitled to any
relief, it is by assessment to be levied by the trustees upon all of the stockholders, as
contemplated by the by-laws of the bank.
The authorities are uniformly opposed to this suggestion. In Hatch v. Dana, 101 U. S. 215,
the court said: In the English courts a mandamus is sometimes awarded to compel the
directors to make the necessary calls. * * * but this remedy can avail only where there are
directors. The remedy in equity is more complete and it is well recognized. (Ward v.
Griswoldville M. Co., 16 Conn. 593.) In such cases it is nowhere held, so far as we know, that
a formal call must be made before a bill can be filed. Indeed, the filing of the bill is
equivalent to a call.
And in Dalton, etc., R. R. Co. v. McDaniel, 56 Ga. 191, upon a similar objection, it was
ruled that principle and sound reason accord with authority that equity will grant relief in all
such cases.
But an assessment upon the stockholders would be wholly inadequate in the present case.
The answer avers that the bank is indebted to a great number of persons in large amounts.
Each creditor was entitled to participate ratably with the plaintiff in the fund, and no creditor
could be allowed to satisfy his debt to the exclusion of another. If the fund fell short of the
amount of the debts of the bank, a court of law would be incapable of adjusting the rights of
the creditors. This can be done in equity only.
Further objection is made to the amount of money required to be paid by the defendants
under the decree. Plaintiff recovered a judgment at law against the bank for the sum of
thirty-one thousand five hundred and twenty-eight dollars and thirty-eight cents, with
interest and costs.
recovered a judgment at law against the bank for the sum of thirty-one thousand five hundred
and twenty-eight dollars and thirty-eight cents, with interest and costs. The aggregate amount
of the judgments against the defendants in the present suit is thirty-nine thousand nine
hundred dollars, and other judgments have been rendered in kindred suits aggregating
nineteen thousand two hundred dollars. It is said that the effect of the decree is to require the
defendants to pay a sum of money to the plaintiff largely in excess of the amount due him
from the bank. An examination of the decree will show that the money to be paid under it is
to be paid into the district court as a trust fund for the benefit of the creditors of the bank, to
be distributed proportionately among them; that the amounts respectively received are to be
credited upon the indebtedness of the bank to each creditor, and the liability of the bank
therein discharged to the amount such creditor may receive. The decree is unobjectionable.
The district court could not have anticipated payments under the decrees rendered in favor of
the plaintiff in the other suits, and no suggestion of that nature was made to it. This and the
other suits were brought for the purpose of collecting a fund to be applied ratably to the
satisfaction of judgments at law, recovered against the bank, and duly presented to the court
below, by the creditor, for participation. The decrees in all of these suits are framed with this
object in view.
The record contains many exceptions to the rulings of the court in admitting and excluding
evidence. We shall not consider them, because, upon the facts heretofore referred to, as
contained in the answer, in connection with the testimony of defendant James H. Kinkead,
fixing the proportionate liability of each of the defendants, the decree is, in any event, correct.
The rulings in Thompson v. Reno Savings Bank, ante, 103, are decisive of the other points.
The decree and order of the district court are affirmed.
____________
19 Nev. 247, 247 (1885) State v. Fogus
[No. 1219.]
THE STATE OF NEVADA ex rel. JOHN B. WILLIAMS and JOHN F. ALEXANDER,
Relators, v. S. C. FOGUS et al., COUNTY COMMISSIONERS OF WASHOE
COUNTY, NEVADA, Respondents.
ConstitutionFees and Salaries of County OfficersStatute ConstruedLocal and Special LawsTax.The
act regulating the compensation of county officers (Stat. 1885, 85), is not in violation of section 20,
art. 4, of constitution prohibiting the legislature from passing local or special laws for the
assessment and collection of taxes for state, county and township purposes.
IdemLegislaturePower of.It is within the power of the legislature to pass local or special laws regulating
the compensation of county officers.
Statute 1885, 85ConstitutionalWashoe County.The statute of 1885, 85, regulating the compensation of
county officers, in so far as it relates to Washoe county, is constitutional.
J. F. Alexander, for Relators:
I. The statute of 1885 is unconstitutional and void. (Jones v. Keep, 19 Wis. 379; Cons.
Art. 4, Secs. 20-21.)
II. The act of 1885 is a law upon the subject of assessment and collection of taxes, and is
not of uniform operation in any sense. It is repugnant to section 17, article 4, of the
constitution.
III. The law is repugnant to the proviso of section 9 article 15, of the constitution.
Legislatures control revenue for public purposes, not the proceeds of contracts. (As to what
nature of compensation, see Hatch v. Mann, 15 Wend. 50; Debolt v. Trustees, 7 Ohio St. 237;
Whiting v. Railroad Co., 25 Wis. 167; Taylor v. Chandler, 9 Heisk. 349; People v. Salem, 20
Mich. 452; Loan Ass. v. Topeka, 20 Wall. 655; People v. Mayor, 4 N. Y. 419; Williams v.
Detroit, 2 Mich. 567; Sears v. Cottrell, 5 Mich. 275.)
R. H. Lindsay, for Respondents.
The act of 1885 does not in any manner provide for the collection or assessment of taxes,
and does not violate any of the provisions of the constitution in relation to that subject.
19 Nev. 247, 248 (1885) State v. Fogus
provisions of the constitution in relation to that subject. (Perry v. Washburn, 20 Cal. 350;
City of Camden v. Allen, 2 Dutch., N. J. 398; Pierce v. City of Boston. 3 Met. 520; Shaw v.
Peckett, 26 Vt. 482.)
Relator Williams is county recorder and ex-officio county auditor of Washoe county, and
relator Alexander is district attorney of said county. They ask that the writ of mandamus be
issued to compel the county commissioners to pass and allow certain claims presented by
them in their official capacities, which they insist they are entitled to under the amendatory
act to regulate the salaries of county auditors, approved March 10, 1879, (Stat. 1879, 126;)
the act to regulate fees and compensation for official and other services, approved February
27, 1883, (Stat. 1883, 62, Sec. 10;) the act fixing the salaries of certain county officers,
approved March 7, 1883, (Stat. 1883, 114); and the act relating to state and county revenue,
approved March 9, 1865, (Stat. 1865, 271). They contend that the fees and compensation of
county officers which are collected for a public service is a tax, and base their claim for salary
and fees under the acts above mentioned, upon the ground that the Act regulating the
compensations of county officers in the several counties of this state, and other matters
relating thereto, approved March 11, 1885, (Stat. 1885, 85) is in violation of section 10, art.
4, of the constitution, which prohibits the legislature from passing any local or special laws
for the assessment and collection of taxes for state, county and township purposes. In
support of this position they cite and rely upon the decision of the court in Manning v.
Klippel, 9. Or. 373.
Upon the oral argument certain objections were urged against the entire act of 1885; but in
considering the questions involved, we shall limit the discussion to that portion of the act
which relates to Washoe county, as that is complete in itself, and is independent of the
provisions which relate solely to other counties.
Did the framers of the constitution intend that the clause prohibiting local and special laws
for the assessment and collection of taxes should apply to fees and compensation of county
officers?
19 Nev. 247, 249 (1885) State v. Fogus
county officers? Is it within the power of the legislature to enact local or special laws
providing for and regulating the fees and compensation of county officers? It must be
conceded that the fees and compensation of county officers are, to some extent, in the nature
of a tax upon the citizens of the county. The word tax has many meanings, and in its
broadest significance includes fees, costs, and all other pecuniary burdens imposed upon the
people under authority of law. But it does not follow, because taxes might in a certain sense
include fees, that such was necessarily the intention of the framers of the constitution by the
language used in the section referred to. License fees are often imposed under the general
power of taxation, but they are sometimes imposed under the police power, and it is always
the duty of courts, when the question is raised, to determine under which head the fees are to
be classed, as the rules of law governing the one do not necessarily control the other.
An act of the legislature which is not prohibited by the express words of the constitution,
or by necessary implication, ought not to be declared void as in violation of that instrument. It
is only in cases where the provisions of the statute manifestly infringe upon the provisions of
the constitution that courts are authorized to declare the statute void. Neither fees, salaries,
nor compensation of county officers are named or necessarily implied in the provisions of
section 20. These terms would not generally be understood as relating to the assessment and
collection of taxes.
Taxation is a tribute for the support of the government, imposed on property in return for
the protection and advantages which the government affords to the owner. It is an essential
and fundamental requisite in the exercise of the power of taxation that the burden should be
imposed or apportioned, with all practicable equality and justice upon a uniform rule. The
prohibition in section 20 against the passage of local or special laws for the assessment and
collection of taxes for state, county and township purposes, was only intended to apply to
laws regulating the method of assessing and collecting taxes for the purpose of general
revenue; and, even as to that purpose, neither this provision, nor the provisions of section 1,
art. 10, have ever been construed, and, in the light of the contemporaneous legislation upon
this subject, should not be construed, as a prohibition upon the power of the legislature to
delegate authority to the county commissioners to fix the rate of taxation for county
purposes in the several counties.
19 Nev. 247, 250 (1885) State v. Fogus
light of the contemporaneous legislation upon this subject, should not be construed, as a
prohibition upon the power of the legislature to delegate authority to the county
commissioners to fix the rate of taxation for county purposes in the several counties. This tax
has never been uniform throughout the state. It has always been regulated with reference
solely to the condition of the counties, and the rate is fixed in each county without reference
to the rate established in others. The act of 1885, regulating the compensation of county
officers in the several counties of this state, does not impose a tax for revenue purposes, and
was not intended to have that effect.
This question was decided in State v. Judges, 21 Ohio St. 11, where it was contended by
counsel that the fees and charges exacted under an act limiting the compensation of certain
officers were in the nature of a tax for the purpose of raising general revenue. The court, in
discussing the provision of the act, said: The plain design of the act is not to tax those
requiring official services, for the purpose of general revenue, but to require payment of a
reasonable compensation for the facilities afforded and the services performed. If, in the
practical operation of the act, the effect should be to leave a surplus for the use of the
countywhich is contingentthis would result from the difficulty found in prescribing such
rates of charges as to make the receipts exactly correspond with the cost of maintaining the
offices. Exactness of correspondence in this respect cannot be attained; but experience and
the keeping accounts of the receipts of the various offices will enable this end to be
accomplished by reasonable approximation. * * * It is competent for the legislature to
provide for compensating all public officers by salaries. If it should see proper to do so, we
know of no provision of the constitution that would forbid exacting from persons requiring,
and who are especially benefited by, the performance of official services, a reasonable
compensation therefor, to be paid into the public treasury, to reimburse the public for the
expense incurred in providing and maintaining such offices. It is not essential to such
exactions that they should inure to the personal benefit of the officer. The officers are but the
agents of the state for transacting the public business; and it is, in its nature, a matter wholly
immaterial to those requiring their services whether the amount to be paid therefor goes to the
officer, or into the public treasury, provided no more is exacted than is just and
reasonable for the facilities afforded and the services performed.
19 Nev. 247, 251 (1885) State v. Fogus
into the public treasury, provided no more is exacted than is just and reasonable for the
facilities afforded and the services performed. If the exactions are called taxes, they become
none the less such, as to those on whom they are imposed, by being paid to the officer, than if
paid into the public treasury. (See, also, State v. Ream, 16 Neb. 685.)
These views are decisive of the question under consideration; but there is another method
of arriving at the intention of the members of the constitutional convention in inserting the
various provisions of section 20, prohibiting local and special legislation, which will bring
about the same result. We refer to the aid given by an examination of the debates in the
convention upon this subject. Where the proceedings clearly point out the purpose of the
provision, the aid will be valuable and satisfactory. (Cooley, Const. Lim. 66.) When section
20 was presented in the convention, it prohibited the legislature from passing local or special
laws regulating the election of county and township officers, and their compensation, for the
assessment and collection of taxes for state, county, and township purposes, in relation to fees
and salaries. (Const. Deb. 146, 147.)
Mr. Frizell rose for information, and said: This section says that the legislature shall not
pass local or special laws in certain cases, and then the cases are enumerated. One clause of it
seems to refer to the fees and salaries of county officers. Now, it appears to me that, although
it might be possible to fix the fees of office at a uniform rate, yet, in cases where they are paid
by salaries, those salaries must necessarily be different. In the county of Storey, for example,
the county officers should have greater salaries than the same officers should be allowed in
the county of Churchill, or some of the other counties.
Mr. Banks, in reply, contended that a general law could be passed that would provide
equitably for the salaries of the officers in different counties, where the duties are different;
that the legislature could abolish the fee system, and adjust the salaries of the officers; that
where the receipts are greater, the salaries should be greater, in proportion; that the fees
collected should be paid into the county treasury, and the salary regulated by the amount of
fees paid; that in that way they could have a general law which would be adapted to the
wants of each particular county, no matter what amount of business was done in such
county.
19 Nev. 247, 252 (1885) State v. Fogus
When the question recurred on the adoption of the original section, Mr. Frizell moved to
amend it by striking out, after the words county and township officers, the words and their
compensation; also, by striking out the words in relation to fees and salaries; and in
support of his motion said: I do not think that any law can be made which will bear
uniformly in regard to the fees and salaries of officers in this proposed state. I do not think
that any general law can reach that subject fairly, if a general law can be made to reach it at
all. * * * I think the subject is sufficiently regulated in section 21, which follows, where it is
made obligatory on the legislature to make all laws uniform and general in their operation, in
all cases where general laws can be made applicable. But, conscientiously speaking, I do not
see that any general law can operate uniformly and correctly in this matter of the
compensation of officers, and therefore I proposed to strike out those words. The question
was taken, and the amendment was agreed to. (Const. Deb. 152.)
From this it will be seen that the question whether the legislature should be prohibited
from passing local or special laws in relation to this subject was fully discussed and fairly
presented. The fact that all clauses relating to this subject were excluded in expressing the
will of the convention is significant. The adoption of the amendments furnish very strong
evidence, and, considered in connection with the reason given therefor, it becomes conclusive
that the members did not intend to place any restrictions upon the power of the legislature in
regulating the fees and compensation of county officers by any of the provisions enumerated
in section 20.
Section 21 provides that in all cases enumerated in the preceding section, and in all other
cases where a general law can be made applicable, all laws shall be general, and of uniform
operation throughout the state.
Could a general law be enacted which would be applicable to every county in the state?
Any effort to draft such a law would be liable to result in making the compensation of
officers wholly inadequate in the small and sparsely populated counties, or exorbitant in the
larger and more populous ones. Some of the counties have much more legal and public
business than others, and the compensation of officers, to secure the ends of justice and meet
the requirements of the public service, should be regulated with reference to the condition
of the respective counties, and the amount and character of the business transacted
therein.
19 Nev. 247, 253 (1885) State v. Fogus
be regulated with reference to the condition of the respective counties, and the amount and
character of the business transacted therein. A fee-bill that would satisfy the people of
Churchill county would not be apt to answer the requirements of the people in Eureka or
Washoe counties.
In the present condition of affairs in this state it would, at least, be difficult, if not
impossible, to fix and graduate the compensation by population, or the amount of fees
collected, so as to make a general law that would be applicable to every county in the state.
We had occasion to refer to this subject in Evans v. Job, 8 Nev. 334, to show that it was the
intention of the framers of the constitution to allow the legislature to pass some local and
special laws, and we then stated that local legislation had always been exercised by the
legislature, and acquiesced in by the people, in regulating the salaries of certain county and
district officers, and pointed out the difficulties that were liable to be encountered by
attempting to make such laws of uniform operation throughout the state.
In People v. C. P. R. R. Co., 43 Cal. 433, the court said: It is obvious that every law upon
a general subject is not per se, nor by constitutional intendment, necessarily a law of a general
nature. The subject may be general, but the law, and the rule it prescribes, may be special.
Fees of office, for instance, constitute a general subjectone which pervades the length and
breadth of the state, and extends into every political subdivision of which it is composedyet
a statute may prescribe what these fees of office shall be in a particular county, and may
declare that they shall differ from fees established for the same official duties performed in
another county. Such a law would not be a law of a general nature, involving the
constitutional necessity of uniform operation, but it would be a special law upon a general
subject; and at an early period in our judicial history the constitutionality of such a law was
unhesitatingly sustained by this court. (Ryan v. Johnson, 5 Cal. 86.)
The case of Miller v. Kister, 68 Cal. 142, has no application to the case at bar, as it was
decided under the new constitution of California, which expressly prohibits the legislature
from passing local or special laws affecting the fees or salary of any officer.
It is contended that in any event it was the duty of the commissioners to allow petitioners'
claims, under the acts mentioned in the petition, for services rendered by them during the
period of time between the decision of this court in State v. Boyd, ante, 43, and the
approval of the act of 1SS5.
19 Nev. 247, 254 (1885) State v. Fogus
tioned in the petition, for services rendered by them during the period of time between the
decision of this court in State v. Boyd, ante, 43, and the approval of the act of 1885. This
position cannot be maintained. That decision related to the provisions of the act of 1883
attempting to make the treasurer of Washoe county ex-officio assessor, and it was decided
that the act, in so far as it established a difference in the government of Washoe county from
that of the other counties in the state, violates the uniformity contemplated by the
constitution in section 25, art. 4. The decision did not affect the provisions of the act which
related to the compensation of the county recorder and district attorney. The allowance to
these officers for that period of time should be made under the provisions of that statute.
(Stat. 1883, 73.)
We are of opinion that the legislature of this state has the power to pass local or special
laws regulating the compensation of county officers; that the act of 1885, in so far as it relates
to Washoe county, is constitutional, and that the respondents were justified in refusing to
allow the claims presented by the relators. The writ of mandamus is denied.
____________
19 Nev. 255, 255 (1886)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
JANUARY TERM, 1886.
____________
19 Nev. 255, 255 (1886) Reinhart v. Bradshaw
[No. 1213.]
E. REINHART et al., Appellants, v. J. D. BRADSHAW,
Respondent.
Public LandsHomesteadTenants in Common.A tenant in common cannot acquire a right of homestead to
government land of which he is in possession for himself and his co-tenants.
Appeal from the District Court of the Fourth Judicial District, Humboldt County.
W. E. F. Deal, and MacMillan & Hannah, for Appellants:
I. Plaintiffs' title was one which is recognized by the courts and which is protected by our
statute. (People v. Shearer, 30 Cal. 657; Moon v. Rollins, 36 Cal. 333; Bush v. Marshal, 6
How. 2SS;
288; Sparrow v. Strong, 3 Wall. 104; Lamb v. Davenport, 1 Saw. 622, Courtney v. Turner,
12 Nev. 348; Atherton v. Fowler, 96 U. S. 513; Nickals v. Winn, 17 Nev. 194; 1 Comp. L. 58,
et. seq.; Vol. 2, Sec. 3825.)
The court below found as a fact that defendant ousted the plaintiffs, and defendant's acts
resulted in dispossessing plaintiffs as completely as if actual force had been used. (Tyler on
Eject., 882, 904; Freem. Cot., Secs. 223, 235, 291, 292; 3 Waits Act. and Def., 28, 42, 43;
Van Valkenberg v. Huff, 1 Nev. 142; Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 188;
Mining Co. v. Taylor, 100 U. S. 40; Humbert v. Trinity Church, 24 Wend. 587; 2 Wash. on
Real Prop., 491; Owen v. Morton, 24 Cal. 376; Carpentier v. Gardner, 29 Cal. 163; Marshall
v. Shafter, 32 Cal. 194; Siglar v. Van Riper, 10 Wend. 414; 2 Greenl. Ev., Sec. 318; Freem.
Cot., Sec. 297, et. seq.)
II. The possession of the defendant in this case was the possession of the plaintiffs. The
relation which existed between them by virtue of their tenancy in common was of such a
character that neither could legally do anything to injure or impair the title of the other.
(Freem. Cot., Secs. 151, 152, 153, 156, 163; Venable v. Beauchamp, 3 Dana, Ky., 321; 28
Am. Dec., 83; Switzer v. Skiles, 3 Gil. 529; 44 Am. Dec., 724; Rothwell v. Dewees, 2 Black.
618; Boskowitz v. Davis, 12 Nev. 465; Titsworth v. Stout, 49 Ill. 81; Lloyd v. Lynch, 28 Pa.
St., 423; Weaver v. Wible, 25 Penn. St. 27; Mandeville v. Solomon, 33 Cal. 38; Hardenburgh
v. Bacon, 33 Cal. 356; Phelan v. Kelly, 25 Wend. 291; King v. Wise, 43 Cal. 633;
Bornheimer v. Baldwin, 42 Cal. 34; McNeil v. First Con. Soc., 66 Cal. 105.)
III. Upon the authority of Nickals v. Winn, 17 Nev. 192, the judgment in this case should
be reversed and a judgment, on the facts found, ordered in favor of plaintiffs. (Frisbie v.
Whitney, 9 Wall. 193; Atherton v. Fowler, 96 U. S. 513; Johnson v. Towsley, 13 Wall. 72;
Hosmer v. Wallace, 97 U. S. 575; Trenouth v. San Francisco, 100 U. S. 251; Hosmer v.
Duggan, 56 Cal. 261; Davis v. Scott, 56 Cal. 165; Cowell v. Lammers, 10 Saw. 246; Smelting
Co. v. Kemp, 104 U. S. 647.)
R. M. Clarke and M. S. Bonnifield, for Respondent:
I. Respondent possesses the qualities of a pre-emptor, and having declared his intention to
enter the land, and received his certificate, has thereby connected himself with the paramount
title, and may plead this title in defense of his possession.
mount title, and may plead this title in defense of his possession.
The inchoate title in fee thus acquired is superior to the mere possessory right, and will
prevail against it in an action of ejectment. (Kyle v. Tubbs, 28 Cal. 402; Emerson v. Sansome,
41 Cal. 552.)
II. Appellants as partners did not possess the qualities of pre-emptors. The right of
pre-emption appertains only to individuals. It is a personal privilege which cannot be
assigned; nor can it be exercised for the benefit of others.
Pre-emption must be made for the exclusive use and benefit of the applicant. (Rev. Stat. U.
S., Secs. 2262, 2290; Copp's Land Laws, 56; Oakes v. Heaton, 44 Iowa, 116; Miller v. Little,
47 Cal. 350.)
The parties hereto were tenants in common of the tract of land in controversy. At the time
plaintiffs acquired their interest, defendant was residing upon the premises. In consideration
of his occupancy, and of the use of certain farming implements and horses owned by the
parties as tenants in common, and of other matters immaterial here, defendant agreed to
cultivate the land and return plaintiffs one-fourth of the crop of grain grown thereon. Under
this agreement defendant occupied and cultivated the land for two seasons, and engaged to do
so for a third; but during the third season, and on or about the thirty-first day of July, 1882,
plaintiffs learned from defendant for the first time, that his cultivation of the land was not for
their use or benefit, as during the preceding seasons, and that he had, on the twenty-first day
of January preceding, preferred a claim to the land under the homestead laws of the United
States. Upon these facts plaintiffs brought the present action of ejectment. Defense is made
upon the homestead claim.
The case presents but a single point: Was the land subject to pre-emption? In other words,
can a tenant in common acquire a right of homestead to government land of which he is in the
possession for himself and his co-tenants?
In Nickhals v. Winn, 17 Nev. 188, the plaintiff was in the possession of a large tract of the
public land. He neglected to avail himself of his right to purchase in preference to others,
and Winn, taking advantage of the situation, undertook to purchase one hundred and
sixty acres thereof from the government.
avail himself of his right to purchase in preference to others, and Winn, taking advantage of
the situation, undertook to purchase one hundred and sixty acres thereof from the
government. It was held, upon the authority of Atherton v. Fowler, 96 U. S. 513, and other
decisions referred to in the opinion, that the right of pre-emption could not be exercised upon
land occupied by another. The generosity by which congress gave the settler the right of
pre-emption, said the court in that case, was not intended to give him the benefit of another
man's labor, and authorize him to turn that man and his family out of their home. It did not
propose to give its bounty to settlements obtained by violence at the expense of others. The
right to make a settlement was to be exercised on unsettled landto make improvements on
unimproved land. To erect a dwelling-house did not mean to seize another man's dwelling. It
had reference to vacant landto unimproved landand it would have shocked the moral
sense of the men who passed these laws if they had supposed that they had extended an
invitation to the pioneer population to acquire inchoate rights to the public lands by trespass,
by violence, by robbery, by acts leading to homicides, and other crimes of less moral
turpitude.
The present action is sought to be distinguished from Atherton v. Fowler and kindred
cases, upon the ground that the defendant was not personally in the actual possession of the
premises at the time of the eviction. The parties being tenants in common, the possession of
the defendant was for the benefit of his co-tenants as well as himself. Occupied lands are
exempted from the provisions of the pre-emption laws upon the presumption that congress
could not have intended to invite the disorder and violence which would follow the invasion
of homes made by settlers upon the public lands. The evils against which the rule is directed
are subject to occur where lands are held by such a constructive occupancy as the facts of this
case present, and we think it falls within the principle ruled in the class of decisions upon
which Nickals v. Winn is based.
Counsel for appellant has referred us to the case of Emerson v. Sansome, 41 Cal. 552, as
opposing this view. That case was decided before the decision in Atherton v. Fowler
established the contrary doctrine.
The judgment of the district court must be reversed, and the cause remanded, with
instructions to enter a judgment in favor of the plaintiffs for the possession of the demanded
premises with the defendant, as tenants in common, and for costs. It is so ordered.
____________
19 Nev. 259, 259 (1886) Adams v. Smith
[No. 1202.]
ELLEN ADAMS, ADMINISTRATRIX, Respondent, v.
CYRUS SMITH, Appellant.
Estate of Deceased PersonsAdministratrixVoluntary Payment of Claim Not Presented for
AllowanceMoney Cannot be Recovered Back.Where an administratrix of an estate, upon a full
knowledge of all the facts, without any fraud or deceit, voluntarily pays a debt legally due from the estate,
which was never presented for allowance, she cannot, thereafter, recover back the amount thus paid.
IdemCollection of RentsPower of AttorneyPrincipal and AgentRatification.Action by administratrix
of estate of C. P. Adams to recover money collected by U. Smith from rents of a certain building, under
power of attorney from plaintiff: Held, upon a review of the evidence, that the title of the property was in
the estate of C. P. Adams during the period of the collection of rents by U. Smith; that U. Smith was
defendant's agentunder the power of attorney executed by plaintiffand that the acts of the agent were
ratified by the defendant.
IdemEvidenceJudgment RollTitleAgency.Held, that the judgment roll in a prior suit between the
same parties, for two months' rent of the same building, was admissible in evidence to prove the title to
the property; the agency of U. Smith, and the ratification of his acts by the defendant.
Upon RehearingComplaintRecovery Back of Money PaidAllegationsEvidence.If a man pays money
in satisfaction of a claim, in order to recover it back he must allege facts justifying such recovery, and, if
the facts are denied, he must prove them. If he relies upon deception and fraud, he must allege them. If he
alleges simply that he paid a sum of money, and asks that he may recover it back, without showing any
good reason in law, why it should be returned to him, he states no cause of action.
Trenmor Coffin, for Appellant:
I. An estoppel, by judgment or otherwise, to be available in an action, must be pleaded,
and by failure to plead any estoppel plaintiff waived it, and it was error to admit the
judgment roll in evidence against the objection of defendant for any purpose of estoppel.
19 Nev. 259, 260 (1886) Adams v. Smith
in an action, must be pleaded, and by failure to plead any estoppel plaintiff waived it, and it
was error to admit the judgment roll in evidence against the objection of defendant for any
purpose of estoppel. (Sharon v. Minnock, 6 Nev. 378; Hanson v. Chiatovich, 13 Nev. 395;
Hostler v. Hayes, 3 Cal. 302; Flandreau v. Downey, 23 Cal. 357; Davis v. Davis, 26 Cal. 23;
Clarke v. Huber, 25 Cal. 593; Davis v. Perley, 30 Cal. 635; Jones v. City of Petaluma, 36
Cal. 231; Hendricks v. Decker, 35 Barb. 302; 21 Am. Dec., 327, note; Big. on Est., 519;
Wood v. Ostrom, 29 Ind. 177; Ransom v. Stanberry, 22 Iowa, 334; Phillips v. Van Shaick, 37
Iowa, 229; Wright v. Butler, 6 Wend. 284; 21 Am. Dec., 323; Wann v. McNulty, 2 Gill. 355;
43 Am. Dec., 58; Gray v. Pingry, 17 Vt. 419; 44 Am. Dec., 346; Isaacs v. Clarke, 12 Vt.
692; 36 Am. Dec., 372; Jackson v. Wood, 3 Wend. 28; Wood v. Jackson, 8 Wend. 9; 22 Am.
Dec., 603; Lansing v. Montgomery, 2 Johns. 383; Howard v. Mitchell, 14 Mass. 241; Towns
v. Nims, 5 N. H. 259.)
II. A party claiming, under the judgment of an inferior tribunal, or a court of special and
limited jurisdiction, must allege and prove all of the facts conferring jurisdiction. (Stiles v.
Stewart, 12 Wend. 473; 27 Am. Dec. 142; Atkins v. Kinnan, 20 Wend. 241; 32 Am. Dec.
540; Levy v. Shurman, 6 Ark. 182; 42 Am. Dec. 690; Dick v. Wilson, 10 Or. 490; Jolly v.
Foltz, 34 Cal. 321; Freem. on Judg., 454; 1 Comp. L. 1122; Keys v. Grannis, 3 Nev. 548;
Victor M. & M. Co. v. Justice's Court, 18 Nev. 21.)
III. It was error in the court to admit the judgment in evidence upon the questions of title
and agency against the objections of defendant, when no issue was raised concerning title or
agency. (Marshall v. The G. F., 16 Nev. 156; Perkins v. Sierra Nevada Co., 10 Nev. 413;
Frevert v. Henry, 14 Nev. 191; Bachman v. Sepulveda, 39 Cal. 689; Le Roy v. Rogers, 30
Cal. 229; Boggs v. Clarke, 37 Cal. 236; Jackson v. Lodge, 36 Cal. 28; Fulton v. Hanlow, 20
Cal. 450; Russell v. Place, 94 U. S. 606; Smith v. Sherwood, 4 Conn. 276; 10 Am. Dec. 143;
Towns v. Nims, 5 N. H. 259; 20 Am. Dec. 478; Tams v. Lewis, 42 Pa. St. 402.)
IV. No estoppel can arise out of a question or point raised and determined only
incidentally or collaterally, and for that reason it was error in the court to admit the judgment
as an estoppel on these questions. (Big. Est. 163; Freem. on Judg., Sec. 273;
19 Nev. 259, 261 (1886) Adams v. Smith
Sec. 273; Sherman v. Dilley, 3 Nev. 23; Fulton v. Hanlow, 20 Cal. 450; Boggs v. Clark, 37
Cal. 236; Jackson v. Wood, 3 Wend. 28; Wood v. Jackson, 8 Wend. 9; 22 Am. Dec. 604;
Lawrence v. Hunt, 10 Wend. 80; 25 Am. Dec. 541; King v. Chase, 15 N. H. 9; 41 Am. Dec.
682; Tams v. Lewis, 42 Pa. St. 402.)
Technical estoppels are not favored in law. (Franklin v. Merida, 35 Cal. 558; Mitchell v.
Kintzer, 5 Pa. St. 216; 47 Am. Dec. 408.)
V. When title to real estate is raised in a justice's court the case cannot be tried there, but
must be transferred to the district court. The district court cannot acquire jurisdiction by
appeal from a judgment rendered in such a case. (Paul v. Armstrong, 1 Nev. 82; Peacock v.
Leonard, 8 Nev. 84; Leonard v. Peacock, 8 Nev. 160; Harding v. Moor, 9 Nev. 355; Tull v.
Anderson, 15 Nev. 426; Langford v. Montieth, 102 U. S. 145; Levy v. Shurman, 6 Ark. 182;
42 Am. Dec. 692; Derton v. Boyd, 21 Ark. 267; People v. Skinner, 13 Ill. 287; 54 Am. Dec.
432; Horan v. Wahrenberger, 9 Tex. 313; 58 Am. Dec. 149.)
VI. A judgment rendered by a court having no jurisdiction to render it, is an absolute
nullity, and may be everywhere attacked, collaterally or otherwise. No estoppel can arise out
of such a judgment and it is entitled to no consideration whatever, neither as a plea or as
evidence, nor otherwise. (Little v. Currie, 5 Nev. 90; Freem. on Judg., Secs. 116, 117, 252,
264; Boggs v. Clarke, 37 Cal. 236; Wixom v. Stevens, 17 Mich. 518; Big. on Est. 20-26;
Elliott v. Piersol, 26 U. S. 340; Thompson v. Tolmie, 27 U. S. 163; Voorhees v. U. S. Bank,
35 U. S. 475; Cooper v. Reynolds, 77 U. S. 316; Atkins v. Kinnan, 20 Wend. 241; 32 Am.
Dec. 534; Shaffer v. Gates, 2 B. Monroe, 453; Swiggart v. Harber, 4 Scam. 364; 39 Am.
Dec. 422; Pelton v. Platner, 13 Ohio, 209; 42 Am. Dec. 197; Smith v. Tupper, 4 Smedes &
M. 261; 43 Am. Dec. 483; Cheatam, Ex-parte, 6 Ark. 531; 44 Am. Dec. 525; Miller v.
Brinkerhoff, 4 Denio, 118; 47 Am. Dec. 243; Horner v. State Bank, 1 Ind. 130; 48 Am. Dec.
355; Rodgers v. Evans, 8 Geo. 143; 52 Am. Dec. 392; Kenney v. Greer, 13 Ill. 432; 54 Am.
Dec. 439; Horan v. Wahrenberger, 9 Tex. 313; 58 Am. Dec. 147; Fitzhugh v. Custer, 4 Tex.
391; 51 Am. Dec. 729; McCauley v. Hargroves, 48 Ga. 50; Pennywit v. Foote, 27 Ohio St.
600.)
VII. It is alleged that U. Smith collected the rents unlawfully and without authority, and
that defendant afterwards ratified the act.
19 Nev. 259, 262 (1886) Adams v. Smith
ratified the act. Such an unlawful act cannot be the subject of an agency or of a ratification.
(Sto. on Ag., Sec. 11; Whar. on Ag., Secs. 25, 249, 319, 334, 615; State v. Matthis, 1 Hill. S.
C., 25; Harrison v. McHenry, 9 Ga. 170; Marsh v. Fulton Co., 77 U. S. 681; McCracken v.
City of San Francisco, 16 Cal. 593, 624; Grogan v. San Francisco, 18 Cal. 608; Zottman v.
San Francisco, 20 Cal. 101; People v. Swift, 31 Cal. 26; Decuier v. Lejeune, 15 La. Ann.,
569; Moore v. Lockett, 2 Bibb., Ky., 67; Phelan v. San Francisco, 6 Cal. 531; Whar. on Ag.,
Sec. 70; Sto. on Ag., Sec. 240; Harrison v. McHenry, 9 Ga. 170; Newsom v. Hart, 14 Mich.
237.)
VIII. There is no pretense that plaintiff relied upon any act of ratification of defendant, or
that by relying upon any such act of ratification she has been in any way prejudiced. (Whar.
on Ag., Sec. 74; Doughaday v. Crowell, 3 Stockt. 201.)
Several instances of a special agency, or of employment, do not prove a general agency,
but rather disprove it. (Angel v. The M. & M. R. R. Co., 18 Iowa, 555; Ostrander v. Brown, 15
Johns. 39; Sto. on Ag., Sec. 87; Whar. on Ag., Secs. 40, 127, 128.)
IX. A person dealing with an agent must inquire into and look to his authority and deals
with him at his peril. Especially is this true in the case of a special agent. (Yellow Jacket Co.
v. Stevenson, 5 Nev. 224; Sto. on Ag., Sec. 166; Whar. on Ag., Secs. 128, 139; Blum v.
Robertson, 24 Cal. 126; Rossiter v. Rossiter, 8 Wend. 495; 24 Am. Dec. 65; Martin v. U. S.,
2 T. B. Mon. 89; 15 Am. Dec. 130; Baring v. Pierce, 5 Watts & Serg. 548; 40 Am. Dec. 537;
Briggs v. Large, 30 Pa. St. 287, 291; Moore v. Lockett, 2 Bibb., Ky., 67; Black v. Shreve, 13
N. J. Eq. 456, 462; Brown v. Johnson, 12 Smedes & M. 398; 51 Am. Dec. 118; Goodloe v.
Godley, 13 Smedes & M. 233; 51 Am. Dec. 159; Towle v. Leavitt, 23 N. H. 360; 55 Am.
Dec. 204.)
X. If the estate has suffered by the illegal act of the administratrix in giving a power of
attorney, she and her bondsmen are responsible. But she cannot set up her own illegal act in
avoidance of her contract. For this reason it was error to admit in evidence the judgment roll,
and to refuse defendant's instructions. (Heron v. Marshall, 5 Humph. 443; 42 Am. Dec. 446;
Selma & T. R. R. Co. v. Tipton, 5 Ala. 787; 39 Am. Dec. 357; Parker v. Hall, 2 Head. 641-5;
Bayles v. Elcan, 1 Cold. 96-9; Scott v. Dunn, 1 Dev. & Bat. Eq. 425; 30 Am. Dec. 182;
Schouler's Ex. and Adm., Secs. 31S, 359, 360;
19 Nev. 259, 263 (1886) Adams v. Smith
Schouler's Ex. and Adm., Secs. 318, 359, 360; Stronach v. Stronach, 20 Wis. 133; Coleman
v. McMurdo, 5 Rand., Va., 51; Johnson v. Lewis, Rice's Chan., S. C., 40; Miller v. Davidson,
3 Gil. 518; 44 Am. Dec. 715.)
XI. The several acts of the parties having been fully executed before this action was
brought, even if illegal, null and void, as alleged by plaintiff, she is bound by them, and
cannot maintain this action. (Denton v. English, 2 Nott & McCord, 581; 10 Am. Dec. 638;
Black v. Oliver, 1 Ala. 449; 35 Am. Dec. 38; Norris v. Norris, 9 Dana, 317; 35 Am. Dec.
138; Dixon v. Olmstead, 9 Vt. 310; 31 Am. Dec. 629; Boyd v. Barclay, 1 Ala. 34; 34 Am.
Dec. 765; Perkins v. Savage, 15 Wend. 412; Green v. Godfrey, 44 Me. 25; White v. Crew, 16
Ga. 420; Walten v. Tusten, 49 Miss. 569; Planter's Bank v. Union Bank, 16 Wall. 499;
Watson v. Bagaley, 12 Pa. St. 164; 51 Am. Dec. 596.)
XII. Ignorance of the law or bad advice of counsel is no ground for relief against the
consequences of her own illegal act and contract. (Mayor of Baltimore v. Lefferman, 4 Gill.
425; 45 Am. Dec. 145; Williams v. Hodgson, 2 Harris & Johns. 474; 3 Am. Dec. 563;
Lawrence v. Beaubien, 2 Bailey, 623; 23 Am. Dec. 164; Platt v. Scott, 6 Blackf. 389; 39 Am.
Dec. 436; Champlin v. Layton, 18 Wend. 407; 31 Am. Dec. 382; Upton v. Tribilcock, 91 U.
S. 50.)
A mistake of law, where the party knows the facts but is ignorant of the consequences, is
no ground for relief, and money paid under such mistake cannot be recovered back. (Mowatt
v. Wright, 1 Wend. 355; 19 Am. Dec. 515; Mayor of Baltimore v. Lefferman, 4 Gill. 425; 45
Am. Dec. 145-8; Fisher v. May, 2 Bibb. 448; 5 Am. Dec. 626; Storrs v. Barker, 6 Johns. Ch.
166; 10 Am. Dec. 323; Good v. Herr, 7 Watts & Serg. 253; 42 Am. Dec. 236; Upton v.
Tribilcock, 91 U. S. 50; Barlow v. U. S., 32 U. S. 404; Elliott v. Swartwout, 35 U. S. 137;
Bank of U. S. v. Daniels, 37 U. S. 33; Mellish v. Robertson, 25 Vt. 603-8; Kenyon v. Welty,
20 Cal. 637; Bize v. Dickason, 1 T. R. 285; Brisbane v. Dacres, 5 Taunt. 144; Lowry v.
Bourdieu, 2 Doug. 468; Freeman v. Curtis, 51 Me. 140.)
XIII. The assignment of the lease to secure the eight-hundred-dollar note was simply a
chattel mortgage to secure a debt. (Jones on Chat. Mort. Secs. 1, 280; 2 Bouv. L. 327,
Personal Property.)
Upon the condition of a chattel mortgage being broken the law vests the title to the
chattel mortgage absolutely in the mortgagee.
19 Nev. 259, 264 (1886) Adams v. Smith
law vests the title to the chattel mortgage absolutely in the mortgagee. Plaintiff could not,
therefore, maintain this action. (Pow. on Mort. 1041; 1 Jones on Chat. Mort. Secs. 280, 426,
551, 699, 700, 703; Tho. on Mort. 429, 430, 445; Bryant v. Carson River L. Co., 3 Nev. 316;
Dewey v. Bowman, 8 Cal. 151; Wright v. Ross, 36 Cal. 414; In re Haake, 2 Saw. 240;
Heyland v. Badger, 35 Cal. 404; Charter v. Stevens, 3 Denio, 33; 45 Am. Dec. 447.)
XIV. A judgment may be impeached collaterally by a defendant by showing that he was
not served with summons, and did not appear or authorize an attorney to appear for him,
although the record shows these facts affirmatively. (Ferguson v. Crawford, 70 N. Y. 253;
Mastin v. Gray, 19 Kan. 458; People v. Dawell, 25 Mich. 247; Garrison v. McGowan, 48
Cal. 592; Pennywit v. Foote, 27 Ohio St. 600; Van Fossen v. State, 37 Ohio St. 317.)
M. C. Tilden and W. E. F. Deal, for Respondent:
I. The judgment roll was admissible to show by the declaration of Cyrus Smith that U.
Smith was his agent; that the power given by respondent to U. Smith was in fact given to
Cyrus Smith, and the purpose for which it was given. It was also admissible, as a muniment
of title, to prove that the property belonged to the estate. (Freem. on Judg., Secs, 256, 260;
McLeod v. Lee, 17 Nev. 113.)
There was no necessity to plead this decree. The judgment was conclusive between the
parties to this action upon the question of title. (Sherman v. Dilley, 3 Nev. 21; Freem. on
Judg., Sec. 284.)
II. The court which rendered the judgment was a court of general jurisdiction and had
jurisdiction over the subject-matter of the action and of the parties, and as long as the
judgment stands it must be respected and enforced. (Freem. on Judg., Sec. 116; State v.
District Court, 16 Nev. 372; Ex-parte Winston, 9 Nev. 75; Ex-parte Twohig, 13 Nev. 302.)
III. Whenever the question of fact is proved beyond any question, it is the duty of the
court to take away such question from the jury. (Sharon v. Minnock, 6 Nev. 377; Menzies v.
Kennedy, 9 Nev. 152; Hayne on N. T., 331, 342, 344, b; Watson v. Daman, 54 Cal. 278;
Oscanyon v. Arms Co., 103 U. S. 261.)
The documentary testimony introduced by appellant and respondent established the fact
conclusively that the property belonged to the estate, and that U. Smith was the agent of
respondent.
19 Nev. 259, 265 (1886) Adams v. Smith
respondent established the fact conclusively that the property belonged to the estate, and that
U. Smith was the agent of respondent. (See, on question of ratification, Whar. on Agency,
Secs. 61, 77, 83, 92; Storey on Agency, Secs. 239, 253, 260; Curry v. Hale, 15 W. Va. 867; 2
Greenl. on Ev., Secs. 64, 68.)
IV. The judgment roll was properly admitted in evidence in support of the allegations of
the complaint.
It is not necessary for a plaintiff, in stating his cause of action, to allege matters of
evidence however conclusive it may beeven though it amount to an estoppel. (Green v.
Palmer, 15 Cal. 411; Depuy v. Williams, 26 Cal. 313; Wilson v. Cleveland, 30 Cal. 192;
Miles v. McDermott, 31 Cal. 271; Racouillat v. Rene, 32 Cal. 450; Marshall v. Shafter, 32
Cal. 176; Hostler v. Hayes, 3 Cal. 302.)
When the court decided against defendant as to the right of the forty dollars, the question
of the ownership of the property was necessarily settled adversely to him, and is res judicata.
(Freem. on Judg., Secs. 249, 255-8; Jackson v. Lodge, 36 Cal. 28.)
V. A judgment can never be attacked collaterally for error. (Freem. on Judg., Sec. 135.) If
the mode by which the district court acquired jurisdiction was irregular (and it certainly was
nothing more), the defendant had a full and complete remedy in that suit. There is a broad
distinction between a case in which a court has no jurisdiction and one in which the
jurisdiction is defectively obtained. In the former the judgment is void, in the latter it is only
erroneous and cannot be attacked collaterally. (Freem. on Judg., Secs. 126, 135, 249, 258;
State v. District Court, 16 Nev. 371; Moore v. Martin, 38 Cal. 428.)
VI. Even had the judgment roll been excluded, the verdict must have been the same.
Hence there was no injustice done, and the judgment will not be disturbed. (Persse v. Cale, 1
Cal. 369; Mills v. Barney, 22 Cal. 240; Kidd v. Teeple, 22 Cal. 255; Horwood v. Kenfield, 30
Cal. 393; Clayton v. West, 2 Cal. 381; Carpentier v. Gardner, 29 Cal. 160; Moon v. Rollins,
36 Cal. 333; Hastings v. Jackson, 46 Cal. 234; Robinson v. Imperial M. Co., 5 Nev. 44;
Todman v. Purdy, 5 Nev. 238; Cahill v. Hirschman; 6 Nev. 57.)
VII. The agency established by the proofs was in no sense an agency to do an unlawful
or illegal act. {Story on Ag., Sec. 445; Whart. on Ag., Sec. 47S.)
19 Nev. 259, 266 (1886) Adams v. Smith
an agency to do an unlawful or illegal act. (Story on Ag., Sec. 445; Whart. on Ag., Sec. 478.)
VIII. Administrators of estates of deceased persons are merely the creatures of the statute.
Their powers are fixed by law. (Royce v. Hampton, 16 Nev. 34.) Appellant was bound to
know that he had no right to receive money from respondent without having proved his claim
against the estate, and without having it allowed by both the administratrix and the court. (1
Comp. L. 612, et seq.; Washburn v. Hale, 10 Pick. 429; Ripley v. Sampson, 10 Pick. 371;
Corbett v. Rice, 2 Nev. 334; Willis v. Farley, 24 Cal. 490; Ellis v. Polhemus, 27 Cal. 355;
Reitzell v. Miller, 25 Ill. 67; Ritte v. Shipley, 46 Cal. 161; Hooe v. Lockwood, 3 Chand., Wis.,
41; U. S. v. Eggleston, 4 Saw. 203; Zachary v. Chambers, 1 Or. 321.) And even if he had
presented his claim, and it had been properly allowed, he would have to account to the
administratrix for the amount received by him, so as to ascertain whether he had received
more than his share of the estate, the estate being insolvent and there being other creditors.
(Redfield on Wills, 251, 264; Richards v. Nightingale, 9 Allen, 149.)
Charles P. Adams, in his life-time, became the lessee of a certain town lot in Virginia city,
and the owner of a wooden building thereon, described in the complaint herein. Before the
lease expired, March 12, 1878, Adams borrowed of defendant eight hundred dollars, through
U. Smith, defendant's brother, and to secure the payment of the same assigned said lease to
defendant. The lease expired December 1, 1881, and the note given by Adams for the money
loaned by defendant was due, one-half September 12, 1878, and the balance March 12, 1879.
By the terms of the lease Adams had the right to remove the wooden building above
mentioned at the end of the term, but not before. After the maturity of the note, November 19,
1879, when the principal was still unpaid, Adams died intestate, and plaintiff was appointed
administratrix of his estate, January 10, 1880. Defendant never presented any claim to
plaintiff or the district judge for allowance. Other claims were regularly presented and
allowed, which were unpaid, and the estate is insolvent. January 15, 1880, plaintiff as
administratrix, authorized U. Smith, in writing, to collect all the rents coming from the
building on the leased premises, and apply the same to the satisfaction of the
eight-hundred-dollar note, less one hundred dollars per month ground rent, and other
necessary expenditures for repairs, etc.
19 Nev. 259, 267 (1886) Adams v. Smith
tratrix, authorized U. Smith, in writing, to collect all the rents coming from the building on
the leased premises, and apply the same to the satisfaction of the eight-hundred-dollar note,
less one hundred dollars per month ground rent, and other necessary expenditures for repairs,
etc. The power of attorney just mentioned was not authorized or approved by the court. On
December 1, 1881, plaintiff revoked the authority previously given to U. Smith, and notified
the tenants to pay no more rents to him. This action was brought to recover from defendant
the rents collected by U. Smith, upon the theory that the latter was the agent of the former in
all that he did under said power of attorney; that the rents belonged to the estate; and that
plaintiff had no authority to execute said power of attorney, or to pay, or authorize the
payment of said claim, or any part thereof, without its presentation and allowance in the
manner prescribed by law. Plaintiff recovered judgment for two thousand four hundred
dollars, and this appeal is from the judgment and an order overruling defendant's motion for a
new trial.
Before plaintiff could recover any part of the sum sued for, it was absolutely necessary for
her to prove that the rents collected by U. Smith belonged to the estate, and that U. Smith
was, by previous appointment, the agent of defendant, or that his acts in relation to the rents
had been ratified by defendant. But there was nothing to hinder U. Smith from acting as the
agent of both plaintiff and defendantas plaintiff's in collecting the rents, and defendant's in
collecting and receiving them in payment of the notesince, in so acting, the agent's duties
would have been consistent with the interests of both parties, according to their contract, the
common object having been to pay the note from the rents. (Bish. Cont., Sec. 333; Insurance
Co. v. Buffum, 115 Mass. 345.)
At the trial the judgment roll, in a case entitled like the one under consideration, from the
first judicial district court, marked Exhibit E, was admitted in evidence on behalf of
plaintiff, for the purpose of estopping defendant from asserting any title to the premises from
which the rents in question were derived, and from attempting to prove that, in all that U.
Smith did, as alleged in amended complaint, in collecting rents, defendant was not the
principal and U. Smith his agent. Defendant objected to the admission of the roll on many
grounds, but it was admitted, "to go to the jury for what it was worth."
19 Nev. 259, 268 (1886) Adams v. Smith
grounds, but it was admitted, to go to the jury for what it was worth. After plaintiff rested,
defendant offered himself as a witness. He was asked nineteen questions, all of which were
objected to, because they tended to contradict the record, Exhibit E, admitted in evidence, by
which, in law, defendant was conclusively bound as to the agency of U. Smith, and as to the
title to the premises described in plaintiff's complaint. The objection was sustained. To the
same effect the court instructed the jury; and counsel for respondent in this court endeavor to
maintain the correctness of the rulings of the court below upon these points.
It is urged by counsel for appellant that, for many reasons stated, said judgment roll and
the papers connected therewith were not admissible to prove an estoppel, and that they were
not conclusive upon the question of title or agency. Our conclusions are such that it will not
be necessary to examine many of the objections urged. To the extent of the
eight-hundred-dollar claim we are satisfied plaintiff cannot recover. The record shows that
she acted according to the advice of her counsel in executing the power of attorney to U.
Smith, whom she undoubtedly regarded as the agent of defendant. There is nothing to show
that U. Smith or defendant took any advantage of her, or that she was deceived or mistaken as
to any material fact, and she must be presumed to have known the law. We must presume that
she was cognizant of the fact that she was not obliged to pay defendant's claim, although it
was secured by mortgage, (Harp v. Calahan, 46 Cal. 222; Pitte v. Shipley, Id. 154; Clark v.
Davis, 32 Mich. 155,) if it was not presented for allowance as provided by statute. It is not
shown, even, that when she caused the claim to be paid she supposed the estate was solvent.
In other words, it appears that, when this action was brought, the contract between plaintiff
and defendant had been fully executed; that plaintiff paid the claim voluntarily, and in her
own wrong.
This is not a case of payment of a claim that was not legally exigible. It was due from the
Adams estate to defendant, although no action could have been maintained thereon without
due presentment to the administratrix and the judge; and the payment made, albeit in an
irregular manner, released the estate from a legal charge. It is not a case of money paid by
mistake of fact, or by reason of fraud.
19 Nev. 259, 269 (1886) Adams v. Smith
Herron v. Marshall, 5 Hump. 443, was an action to recover a negro slave sold by the
administrator of the estate of Robert Parrish to one Doyle, without authority of court, when
the statute declared that the sale of a slave so made should be void. Doyle kept the slave until
his death. The plaintiffs were devisees under the will of Robert Parrish, and the defendants
were executor and executrix of the last will and testament of Doyle. After reciting the
provisions of the statute, the court said: Consequently, the sale of the negro in controversy
from Matthew F. Parish, administrator of Robert Parish, * * * conveyed no title to Michael
Doyle, the testator of the defendants; and the complainants are entitled to the relief sought,
unless their claim be barred by the statute of limitations. It is not argued that the devisees,
under the will of Robert Parrish, are barred by reason of a neglect on their part to assert their
rights within the proper time; for some of them were under age at the time the bill was filed.
But it is contended that, inasmuch as the sale is declared by the statute to be void, no right
whatever passed thereby to the vendee, Doyle; and that the administrator of Robert Parish
might have commenced suit, notwithstanding the sale, against Doyle, immediately, to regain
the possession of the negro; that therefore the statute of limitations commenced running in
favor of Doyle the moment he took possession of the negro, and, no suit having been brought
within three years thereafter, he is protected by the statute of limitations. To this reasoning we
cannot assent. The statute was passed for the protection of legatees and distributees, and to
hold that an executor or administrator might, in violation of the provisions of the statute, sell
negroes of the estate, and make that sale good and valid by a neglect to sue for their recovery,
within three years thereafter, would be utterly destructive of the statute, and render it
inoperative and unavailable. But, furthermore, we do not think that the administrator or
executor could, in such case, set aside his own sale, and sue to recover the possession of the
negro; and this upon the well-settled principle that a man shall not be permitted to set up his
own illegal acts to vitiate his own contracts. In other words, we think that the executor or
administrator would, in a suit against their vendee, be estopped from saying that they had
violated the statute in selling the negro. The consequence is that the legatees or distributees
may sue, and, if they do so within time, will be permitted to recover."
19 Nev. 259, 270 (1886) Adams v. Smith
distributees may sue, and, if they do so within time, will be permitted to recover.
Sloan v. Stevenson, 24 La. Ann. 278, was an action by administrators and heirs to recover
the price of cotton sold by the former, on the ground, among others, that the contract was null
because it was a private sale of succession property. Said the court: The contract being
executed, the administrators will not be listened to, in a court of justice, when alleging their
own turpitude and dereliction of duty.
In Egbert v. Rush, 7 Ind. 707, the administrator of an estate, without any order of court,
voluntarily paid a part of the assets to the widow and heirs before the settlement of the estate.
Sufficient means not having been left to pay the debts and compensate the administrators for
their services, they brought their action against the widow and heirs to recover a sufficient
sum out of the amount advanced to them to discharge the unpaid residue of the debts and
compensate the administrators. The court held that the suit would not lie, and said: So far as
the basis of the decree before us is disclosed, it may be resolved into two elements: (1)
Money actually advanced to the widow and heirs of the intestate; (2) money due to the
administrators for services as such. The first was paid over to the widow and heirs without
any order of court to that effect. It does not appear that any order for distribution was ever
made. The payment was the act of the administrators without any legal authority. It must be
taken as made, too, with a full knowledge of all the facts. As administrators they must have
known the situation of the estate. At least, they had the means of knowing, and must be
presumed to know how it stood. Their own reports show the debts and liabilities. It is not
pretended that this money was ever advanced by them to save the sacrifice of any property of
the estate. It was a voluntary payment of money, without any authority, or any plausible
pretext of ignorance as to the facts. It was clearly waste. We know of no principle of law, and,
certainly, no consideration of public policy, that can be invoked in aid of the administrators.
Even as against adults, the law would raise no assumpsit in their favor. Much less in this case
against infants. (And see Walker v. Hill, 17 Mass. 383; Pistole v. Street, 5 Port., Ala., 64;
Parker v. Hall, 2 Head. 645; Stronach v. Stronach, 20 Wis. 129; Succession of Marr, 23 La.
Ann. 718; Miller v. Harrison, 34 N. J. Eq., 374;
19 Nev. 259, 271 (1886) Adams v. Smith
34 N. J. Eq., 374; Haile v. McGhee, 29 La. Ann. 350; Succession of Margaret McAuley, 29
La. Ann. 38; Cook v. City of Boston, 9 Allen, 393; Benson v. Monroe, 7 Cush. 125; Patterson
v. Cox, 25 Ind. 261; Williams v. Colby, 44 Vt. 41; Awalt v. Eutaw B. Ass'n., 34 Md. 435.)
We shall now consider whether or not any valid objections exist against plaintiff's
recovery of the balance collected, after satisfaction of the eight-hundred-dollar note. Should
we agree with counsel for defendant that the court erred in ruling that by the judgment roll,
Exhibit E, he was estopped to deny that the title to the leased property was in the estate of
Adams, or that U. Smith was the agent of defendant under the power of attorney, it would still
be true that the roll was admissible and competent to go before the court and jury for what it
was worth, to establish, or as tending to establish, the two facts claimed by plaintiff in
relation to title and agency.
The constitution provides that judges shall not charge juries in respect to matters of fact,
but may state the testimony, and declare the law. In cases tried by juries, courts cannot take
from them material disputed questions of fact. But when facts are admitted by the pleadings,
or proven by one party, and not controverted by the other, it is not error for the court to take
them from the consideration of the jury. (Sharon v. Minnock, 6 Nev. 377; U. S. v. Tillotson,
12 Wheat. 181.) In either case there are no disputed questions of fact. When facts are
undisputed, the question whether an agent has the requisite authority to bind his principal, is a
question of law for the court, whether such authority is sought to be sustained by a previous
authorization or by subsequent ratification. (Gulick v. Grover, 33 N. J. Law, 473.) Upon an
undisputed state of facts, whether such facts operate as a ratification is a question of law.
(Bank of Orleans v. Fassett, 42 Vt. 439; and see Bigelow v. Denison, 23 Vt. 564;
Commercial Bank v. Jones, 18 Tex. 828; Fay v. Richmond, 43 Vt. 28; Copeland v. Copeland,
28 Me. 543; Bradley v. Lee, 38 Cal. 366; Terry v. Sickles, 13 Cal. 429; Caulfield v. Sanders,
17 Cal. 573; Tompkins v. Mahoney, 32 Cal. 235; Rumsey v. Schmitz, 14 Kan. 546; Durham v.
Carbon C. & M. Co., 22 Kan. 243.)
Although defendant in his answer denied that the title to the premises from which the rents
were derived was in the estate, or that U. Smith was his agent, or that he ever ratified his
brother's acts, our opinion is that, upon the uncontested facts disclosed at the trial, it is
true in law that the title was in the estate during the period of collection by U. Smith, and
that U. Smith was defendant's agent under the power of attorney executed by plaintiff.
19 Nev. 259, 272 (1886) Adams v. Smith
brother's acts, our opinion is that, upon the uncontested facts disclosed at the trial, it is true in
law that the title was in the estate during the period of collection by U. Smith, and that U.
Smith was defendant's agent under the power of attorney executed by plaintiff.
And, first, upon the question of title, and consequently of plaintiff's right to receive the
rents. The estate's title and interest were a leasehold estate in the land, and the absolute
ownership of the building thereon, with the right to remove the latter at the end of the term,
but not before. Defendant's title, until December 1, 1881, (and during that time nearly, if not
quite, all the rents were collected,) was an assignment of the Adams lease as a mortgage to
secure payment of the eight-hundred-dollar note. On December 1, 1881, the owners of the lot
on which the rented building stood, leased the ground to defendant, through U. Smith, upon
his representation that he had bought the building, the lease to continue as long as defendant
should pay sixty dollars rent monthly. But plaintiff kept possession of the property until about
September 11, 1882, when she threatened to remove the building, and a compromise was
made between her and the lessors. By order of the court she conveyed the building to the
lessors, and received three hundred dollars, besides the back rents, and an acquittance of all
ground rent. The assignment by Adams to defendant did not provide for payment of any rent
to the latter; but it was agreed therein that, in case of default in payment of the note when due,
the title of Adams in said lease, and his interest in and to the land described therein, should
vest absolutely in defendant. The note was not paid at maturity. The assignment to defendant
as a mortgage did not entitle him to receive the rents. (Polhemus v. Trainer, 30 Cal. 687; 1
Jones. Mortg. Sec. 670.)
It is claimed by defendant's counsel that the assignment of the lease to defendant was
simply a chattel mortgage; that, upon condition broken, the law vested the title to the lease,
and the interest of Adams therein, in defendant, prior to the death of Adams; and that neither
the lease, nor the right to collect rents, ever became a part of the Adams estate. But the
answer to this claim is that the lease-hold interest assigned to defendant is an interest in lands.
(Comp. L. 283, 302, 1292; Trustees v. Dunn, 22 Barb. 402; Tay. Land. & Ten., Sec. 14, note
2;
19 Nev. 259, 273 (1886) Adams v. Smith
note 2; Id. Sec. 455; 1 Wash. Real Prop. 436.) Defendant's only remedy was by foreclosure
and sale. (Comp. L. 1309; Polhemus v. Trainer, supra.)
We now come to the question of agency. Although there was much evidence sustaining the
court's conclusion upon this subject, and little, if any, against it, still, as our opinion rests
upon the fact of ratification by defendant, we shall only review the evidence which, directly
or indirectly, bears upon that question.
The judgment roll, Exhibit E, admitted in evidence, shows, and the facts are undisputed,
that on January 5, 1882, plaintiff, as administratrix of the estate of Charles P. Adams,
commenced an action in justice's court, Storey county, against Marshall Hutchinson, a tenant
of the building before mentioned, to recover forty dollars rent for the months of December,
1881, and January, 1882. The rent having been claimed by both plaintiff and defendant,
Hutchinson deposited in court the amount due, and asked the court to substitute defendant
herein as defendant in that case. Defendant also, by his attorney, petitioned the court to the
same effect. On the tenth and sixteenth of January, 1882, the attorney for plaintiff in the
justice's court, wrote defendant, and informed him fully of the acts of U. Smith and plaintiff
in the matter of rents, and especially that, during the whole time, U. Smith, acting as his
agent, had collected four thousand dollars or more of rents belonging to the Adams estate,
and had paid no part of it to plaintiff. He was informed of the suit against Hutchinson, and
what it was for; that U. Smith, with an attorney, had petitioned the court to substitute Cyrus
Smith's name as defendant, claiming that the rents belonged to him. Defendant received those
letters January 24, 1882, together with a letter from his attorney in that case. Defendant, upon
receipt of the letters, went immediately to Virginia City, riding all night, consulted with his
attorney about the case, authorized U. Smith in writing to attend to his interests in the suit
then pending, and authorized and requested that his name be substituted in place of
Hutchinson as defendant therein. That was January 25, and the case was tried January 31. His
power of attorney to U. Smith was filed January 25. The order of substitution was then made,
and at the same time defendant, by his attorney, filed his answer, in which, among other
things, he alleged that "plaintiff, Ellen Adams, administratrix of the estate of Charles
Adams, deceased, for a valuable consideration, executed to him, defendant, through his
attorney in fact, U. Smith, a power of attorney, dated January 15, 1SS0, authorizing him
to collect the rents coming from and payable on the building set forth in said complaint,
and that the sums so collected should be applied by defendant to the payment of an
indebtedness of eight hundred dollars, due from the estate of Charles Adams, deceased,
and from plaintiff herein to defendant herein; that the said indebtedness is now due and
owing to said defendant; and that the said power of attorney from plaintiff to defendant
was given to enable defendant to pay himself said indebtedness from the rents to be
collected as aforesaid.
19 Nev. 259, 274 (1886) Adams v. Smith
defendant, by his attorney, filed his answer, in which, among other things, he alleged that
plaintiff, Ellen Adams, administratrix of the estate of Charles Adams, deceased, for a
valuable consideration, executed to him, defendant, through his attorney in fact, U. Smith, a
power of attorney, dated January 15, 1880, authorizing him to collect the rents coming from
and payable on the building set forth in said complaint, and that the sums so collected should
be applied by defendant to the payment of an indebtedness of eight hundred dollars, due from
the estate of Charles Adams, deceased, and from plaintiff herein to defendant herein; that the
said indebtedness is now due and owing to said defendant; and that the said power of attorney
from plaintiff to defendant was given to enable defendant to pay himself said indebtedness
from the rents to be collected as aforesaid.
Although on December 1, 1881, plaintiff notified U. Smith that his power of attorney to
collect rents was revoked, it is quite evident that the one ground of defendant's claim of right
to receive the forty dollars rent was that the power of attorney to U. Smith was irrevocable,
because coupled with an interest, until the eight-hundred-dollar note was paid. So his attorney
advised him in his letter of January 22, 1882, before the trial; and U. Smith testified in this
case that he refused to recognize such revocation for the same reason. So it appears that
defendant endeavored to recover the forty dollars rent in question in that case in part upon the
ground that he was entitled to receive it by reason of the power of attorney given by plaintiff
to him through his attorney in fact, U. Smith. Although the power of attorney was upon its
face to U. Smith, it was competent for Cyrus Smith in that case, as it was for plaintiff in this,
to show that U. Smith was, in fact, the agent of Cyrus Smith in taking it, and in acting under
it, so as to give the benefit of the contract on the one hand to, and charge with liability on the
other, the unnamed principal. (Story on Ag., Sec. 161, note.)
That defendant's answer in that case, under all the circumstances, was and is a complete
ratification of the contract entered into between plaintiff and U. Smith by the power of
attorney, and of the acts of the latter thereunder, admits of no doubt; and it follows that
defendant is responsible in this action to the same extent that he would have been if the
power of attorney from plaintiff had been given to him, and he had acted under it as did
his brother.
19 Nev. 259, 275 (1886) Adams v. Smith
attorney from plaintiff had been given to him, and he had acted under it as did his brother.
(Story, Ag., Secs. 239, 242, 244; Summers v. Foote, 28 Miss. 671: Walker v. Mobile & O. R.
Co., 34 Miss. 255; Memphis & C. R. Co. v. Scruggs, 50 Miss. 297; Meyer v. Morgan, 51
Miss. 24; Hoyt v. Thompson, 19 N. Y. 207; Dove v. Martin, 23 Miss. 589; Gibson v. Norway
Sav. Bank, 69 Me. 582; Greenfield Bank v. Crafts, 4 Allen, 453; Wellington v. Jackson, 121
Mass. 159; Forsyth v. Day, 46 Me. 177; Knight v. Nelson, 117 Mass. 458; Garrett v. Gonter,
42 Pa. St. 144.)
Indeed, if the agency and acts of U. Smith could have been ratified, it is not denied that
there was a complete ratification, or that it was made with full knowledge of all material
facts. But it is said that the acts of U. Smith in receiving the power of attorney from plaintiff,
and collecting the rents thereunder for the purpose of satisfying defendant's note, were
unlawful, because the claim had not been allowed as the statute requires, and it was unlawful
to pay the same without an allowance; that the agency in question was for the purpose of
misappropriating the funds of the estate; and that neither such agency, nor the acts of U.
Smith thereunder, could be ratified by defendant. We deem this objection frivolous. It was
undoubtedly lawful on the part of defendant to receive payment of his note, either before or
after allowance, if plaintiff was willing to pay him. The statute does not directly or indirectly
prohibit him from doing so. On his part, the only penalty attached to a failure to present his
claim is to deprive him of the right to maintain an action thereon. If plaintiff had offered
voluntarily to pay him in money, he would have had a right to receive it. If that would have
been lawful, he could have collected rents and paid himself therefrom. With equal reason
might it be argued that an ordinary creditor of an estate must see that all preferred claims are
paid before he can lawfully receive voluntary payment of his own, or that the administrator
pays him only his pro rata share, if the estate is unable to pay in full. The statute in relation to
the payment of claims is for the guidance of administrators and the protection of creditors,
legatees, and distributees. Plaintiff need not have paid the note, except according to the
statute, and ought not to have done so. But the wrong was her own, not defendant's. As
between him and her, the payment was lawful on his part. Whether, as to creditors, the
arrangement was voidable we need not stop to inquire.
19 Nev. 259, 276 (1886) Adams v. Smith
Undoubtedly defendant might have claimed and shown, if such was the fact, that when he
ratified the acts of his brother in receiving the power of attorney, and making collections
under it, he misapprehended the material facts, but such was not his defense, and in no other
way could he have escaped the legal effect of ratification. Admitting that the court refused to
allow defendant to answer the nineteen questions asked him, for a wrong reason, yet, if his
answers must have been immaterial, no injury was done. None of the answers could have
shown, nor were they intended to show, that defendant was deceived, or that he
misapprehended the facts when he filed his answer in the justice's court, and any other
evidence was immaterial. (Story Ag. Sec. 239, note; Id. Sec. 242.) A ratification supposes
knowledge of the thing ratified; and in case of a contract, the inference from the ratification is
that its provisions were known. When the ratification is proved, this inference necessarily
follows; and, if there was any mistake or misapprehension, the fact must be shown. (Blen v.
Bear River & A. W. & M. Co., 20 Cal. 613.)
If he had testified that he did not, in person, sign the appeal-bond, it would still have been
true that he authorized his brother to attend to his interests in the suit, and requested his name
to be substituted in the place of Hutchinson, as defendant; that he appeared by attorney in
justice's and district courts, as well as by his brother, whom he authorized to attend to his
interests; and that he paid his attorney for both trials. Had defendant testified that he never
authorized his attorney, Mr. Whitcher, to appear for him, or to make and file his answer in the
justice's court, it would still have been undisputed that his brother had power to do so, and
that he never objected to what was done. He did not propose to testify that he was in fact
ignorant of the contents of his answer in the justice's and district courts, or that it was untrue.
Whether he ever ratified the acts of his brother, done under the power of attorney from
plaintiff, was a question of law for the court to decide upon the admitted facts, or for the jury,
if the facts were controverted. The other questions are so plainly immaterial we shall not
consider them.
It was claimed by counsel for defendant in the court below that if U. Smith was agent for
defendant for the purpose of receiving payment of the note, his agency ceased when he had
received sufficient money to satisfy the same, and that defendant was not bound for
anything he did in excess of receiving payment of the note.
19 Nev. 259, 277 (1886) Adams v. Smith
had received sufficient money to satisfy the same, and that defendant was not bound for
anything he did in excess of receiving payment of the note. Under the agreement between
plaintiff and U. Smith, the latter undertook to collect the rents, and, out of them, pay ground
rent, make repairs, etc., and the balance, whatever it might be, to apply upon the note. Neither
party knew what the expenses would be, or the length of time that would be required to
satisfy the note. It was a part of U. Smith's duty to keep a correct account, and cease
collection when payment was made. Defendant recognized this when in his answer he said, in
substance: The power of attorney was given to me through my attorney in fact, U. Smith.
Through him I have collected the rents, but I have paid it all out, and the note is still unpaid.
He put himself in the place of his brother, and expressly ratified all he had done.
The result of the foregoing is that plaintiff is entitled to recover the amount of rents
collected, less the sum due on the eight-hundred-dollar note, and such disbursements as were
made for ground rent, repairs, etc. This much was collected without authority, and is retained
without right. From the amount collected the court authorized the jury to deduct all the above
items of expenditure, but not the amount due on the note. We see no occasion, however, for a
new trial. The testimony shows that two thousand five hundred and fifty dollars were paid by
defendant for ground rent and repairs before the power of attorney was revoked by plaintiff.
U. Smith, defendant's witness, testified that he collected more than five thousand dollars.
Plaintiff testified that U. Smith told her the total receipts were five thousand two hundred and
forty dollars. The jury found a verdict for two thousand four hundred dollars. This sum, less
the amount due on the note, was justified by the evidence. The entire evidence shows that,
after the death of Adams, the receipts for rents gradually became less. Defendant must have
received more in the first part of the agency than the last. For defendant, then, it is safe to take
the monthly average of the amount found by the jury to have been received, above the sums
paid out (about one hundred dollars), as the sum paid each month on the note. The interest
was paid by Adams until November 12, 1879a few days before his death. Proceeding upon
the basis above stated, and including interest at two per cent. per month, until January 10,
1880, when letters of administration were issued to plaintiff, and interest thereafter at ten
per cent. per annum, {Comp. L. 612), the amount of principal and interest before payment
could not have exceeded eight hundred and seventy-five dollars.
19 Nev. 259, 278 (1886) Adams v. Smith
of administration were issued to plaintiff, and interest thereafter at ten per cent. per annum,
(Comp. L. 612), the amount of principal and interest before payment could not have exceeded
eight hundred and seventy-five dollars. This sum should be deducted from the amount of the
judgment.
It is therefore ordered that the cause be remanded to the court below, with instructions to
modify the same by striking therefrom the words and figures, twenty-four hundred dollars,
($2,400) and inserting in lieu thereof the words and figures, fifteen hundred and twenty-five
dollars, ($1,525,) if, within ten days after the remittitur is filed in the court below, plaintiff
files her written consent thereto; and the judgment so modified is affirmed. If such consent be
not filed as herein stated, the order and judgment appealed from are reversed, and the cause
remanded for a new trial, plaintiff to pay costs of appeal in either event.
By the Court, Leonard, J., on rehearing:
Although admitting that it is in the power of this court to modify a judgment upon grounds
not taken by counsel, and that it is its duty to decide cases according to law, no matter what
may be the argument of counsel, it is asserted in the petition for a rehearing that appellant
did not advance or maintain the proposition in this court that he had the right to receive
payment of the eight-hundred-dollar note without proving his claim against the estate as
required by law. Although what we said upon this point was stated in an answer to
appellant's claim that the acts of U. Smith could not be ratified because they were unlawful,
still counsel is mistaken. (See appellant's brief, page 36, and his brief in reply, page 2;
respondent's brief, pages 28, 33, 34.)
It is also claimed that this question was not considered or discussed in the court below.
The arguments of counsel are not before us, but the instructions given and refused are. By
respondent's instructions the jury were told that appellant was never a creditor of said estate,
and that they had no right to make any deduction from the amount of rents collected by U.
Smith for or on account of any debt which Adams owed appellant; that if they found for
plaintiff they must leave entirely out of consideration any debt due from Adams to appellant,
as the plaintiff herself had no right to pay such debt; that they were only to determine,
first, what sum, if any, U. Smith collected;
19 Nev. 259, 279 (1886) Adams v. Smith
as the plaintiff herself had no right to pay such debt; that they were only to determine, first,
what sum, if any, U. Smith collected; second, what sum U. Smith paid for ground rents or
other matters which respondent had the right to pay; and, third, if they found that U. Smith
collected anything above such payments, it was their duty to find a verdict for respondent for
such sums. Those instructions involved appellant's right to receive as well as respondent's
right to pay. Besides, the court refused to instruct the jury that appellant was entitled to retain
the amount of the eight-hundred-dollar note. It is true that appellant did not, so far as the
record shows, except to the court's refusal to give his instructions, but the instruction just
referred to shows appellant's theory in relation to respondent's right to recover the amount of
the note.
The conclusion arrived at, that respondent could not recover the amount of the
eight-hundred-dollar note, is attacked as unsound, because, first, it is inconsistent with the
pleadings; second, because there was no proof that the note had not been paid, and the burden
was upon appellant to show that fact; third, because the record does not show that respondent
paid the note voluntarily, but that, on the contrary, it shows the power of attorney to collect
rents, and apply them to such payment, was fraudulently obtained; that the statement on
motion for a new trial does not specify that the verdict is not sustained by the evidence, for
the reason that the amount due appellant should have been deducted from the rents collected;
and that the result is the same as though no statement had been filed. Before respondent could
recover the amount of rents collected and paid in satisfaction of the eight-hundred-dollar note,
she was obliged to plead and prove facts entitling her to receive it back. The power of
attorney, and the collection of rents thereunder to the extent of the indebtedness, amounted to
payment of the note. The result was precisely the same as though she had taken the amount
claimed from moneys belonging to the estate, and paid it to U. Smith in satisfaction of
appellant's demand. The amended complaint, then, shows that she paid the claim. If, in a legal
sense, the payment was voluntary, and especially if she did not act under a misapprehension
of facts, and was not deceived by representations of U. Smith which were untrue, and which
he had no right to make, and if the note was unpaid, then she could not recover to the extent
of the sum due thereon.
19 Nev. 259, 280 (1886) Adams v. Smith
extent of the sum due thereon. If a man pays money in satisfaction of a claim, in order to
recover it back, he must allege facts justifying such recovery, and if the facts are denied, he
must prove them. If he relies upon deception and fraud, he must allege them. If he relies upon
prior payment, he must allege that. If he alleges simply that he paid a sum of money, and asks
that he may recover it back, without showing any good reason in law why it should be
returned to him, he states no cause in action.
Let us test the complaint in this case by these principles. It is alleged that respondent was
induced to give the power of attorney by reason of appellant's pretension that he owned and
held a note and mortgage of eight hundred dollars against the estate. Appellant had the right
to make the pretension stated if it was true. But it is also alleged that said pretended claim
and demand was and is utterly false and fraudulent, but plaintiff, at the time she executed said
instrument, in consequence of the representations of defendant, believed said claim and
demand to be just and true. The allegation that said claim and demand was utterly false and
fraudulent was only a conclusion of law arising from the fact of prior payment, if it had been
made. If prior payment, and ignorance of the fact, had been alleged, a failure to deny would
have been an admission entitling respondent to recover. But appellant was not required to
deny the legal conclusion arising from facts not stated, and failure to deny was not an
admission that his claim was false or fraudulent; that is to say that it had been paid.
Much is said in the petition for rehearing about appellant's denial in his answer that he
ever pretended to own or hold any claim whatever against Adams or his estate at the time of
his death, or at any other time. That denial was inserted upon the theory that U. Smith was
not his agent in the premises, and that he was not responsible for anything done by U. Smith.
It was not, nor was it intended to be, an admission that the eight-hundred-dollar note had been
paid prior to the giving of the power of attorney. But in an amendment to his answer appellant
alleges that, at the date of the note, his brother, U. Smith, had in his possession the sum of
eight hundred dollars of appellant's money, which U. Smith loaned to Adams for and on
behalf of, and as the money and property of appellant, and took therefor a promissory note,
and as a chattel mortgage to secure the same, received an absolute assignment of a
leasehold interest in the property described;
19 Nev. 259, 281 (1886) Adams v. Smith
chattel mortgage to secure the same, received an absolute assignment of a leasehold interest
in the property described; that no part of said eight hundred dollars, or the interest thereon
had ever been paid as provided in said promissory note and assignment; that on March 12,
1879, all the conditions, covenants, and agreements contained in said promissory note and
assignment were broken, and said assignment became absolute, and the title to said leasehold
interest vested absolutely in appellant. It is said that appellant's allegation touching the
non-payment of the note was inserted for the purpose of asserting title in himself. That was
probably his primary object, though it may not have been the only one. But, whatever the
truth may be as to his reasons for alleging non-payment, the fact remains that he did allege it,
and it shows, at least, that he did not intend to admit that the note had been paid, and
consequently that the claim was false and fraudulent.
Appellant denied that any claim which he ever pretended to own or hold against Adams, or
his estate, or respondent, or any claim or equity pretended by any one else to be held or
owned by appellant against Adams or his estate, was in any manner false or fraudulent. If we
admit that the criticisms of counsel for respondent concerning these denials are just, still the
answer is that any denial was entirely gratuitous. None was required, for the reasons before
stated, and the burden was still upon respondent to show herself entitled to recover the eight
hundred dollars paid. It was not claimed that appellant's demand was false or fraudulent
unless the note had been paid prior to the death of Adams. Respondent admitted that Adams
received the eight hundred dollars, and gave his note and mortgage. It was not claimed that
anything had been paid since the death of Adams. There was not the slightest evidence
tending to show payment, except from rents collected under the power of attorney. The only
evidence intended to prove payment otherwise was this, in respondent's testimony: When I
gave Smith the power of attorney, I supposed that the eight-hundred-dollar note was still
unpaid, but I have since thought and now believe that the whole, or nearly the whole, of it
was paid before my husband died. But not one fact did she state justifying her belief. On the
contrary, it was in evidence that the note and mortgage were in the hands of U.
19 Nev. 259, 282 (1886) Adams v. Smith
Smith at the date of the power of attorney, subsequent to the death of Adams. They were in
the same hands as late as March, 1882, at the time of the trial on appeal in the first district
court. The note and mortgage were presented in court at that time, and there is no proof that
any payment had been indorsed thereon. If payments appeared, the fact could have been
shown. In an action upon a promissory note, failure to pay must be alleged; but, so far as
proof is concerned, possession of the note is sufficient, prima facie to sustain the allegation.
(Frish v. Caler, 21 Cal. 74.) And although it was upon respondent to prove payment, yet, the
facts above stated showed prima facie, that payment was not made prior to the death of
Adams. And were we wrong in saying that, in a legal sense, respondent paid the note
voluntarily? In the first place, the idea that the payment was not voluntary finds no support in
the complaint. Of course, ignorance of the law on the part of respondent is no excuse, and the
only thing charged against appellant is that, respondent was induced to give the power of
attorney, or pay the note, by the pretense that it had not been paid. Then, certainly, until she
alleges that it was paid otherwise than from the rents, there is no allegation of a false
inducement. The principal evidence upon this point was given by respondent herself. She
said: I am acquainted with Dr. U. Smith. After my husband died U. Smith came to my house
every day and wanted me to be appointed administratrix of my husband's estate. He told me
that my husband was indebted to his brother, Cyrus Smith, in the sum of eight hundred
dollars, and that Cyrus Smith had a mortgage on the B-street house for that amount. After I
was appointed administratrix, he urged me to give him a power of attorney to collect the rents
from the B-street house, until he got money enough out of it to pay off his brother's claim,
and then he said he would return it back to me, and I did give him the power of attorney to
collect the rents.
He had a perfect right to do all that, and say what he did, if the note was unpaid. He did
not have the right to retain the power of attorney and collect rents after the note had been
satisfied; hence the judgment against appellant.
Respondent was then shown the power of attorney, and asked by her counsel: What
representation, if any, did U. Smith make to you to get the power of attorney? What did he
say?"
19 Nev. 259, 283 (1886) Adams v. Smith
say? Appellant's objections to this question were overruled, and witness answered: He told
me that he was a good man; that he was a smart business man, and understood the law, and
that he could not collect the rents very well from the tenants; that he had no interest in the
business except to collect the money for his brother, Cyrus, and that his brother was a wealthy
man, and that when he got money enough out of the estate to pay off his brother's claim he
would give it back to me. I believed what U. Smith told me. I had confidence in him, and, as I
had my little children to take care of, the youngest then was only about four months old, I was
glad to have him attend to the business. Mr. Tuska was my lawyer when I was appointed
administratrix, and attended to that business for me; and Dr. U. Smith went to Mr. Tuska and
got him to write that power of attorney, and U. Smith sent it down to my house to me by my
brother, with word that Mr. Tuska had drawn it, and that it was all right, and for me to sign it,
and I did so. I signed it without reading it, because I supposed it was all right, and my brother
took it back and gave it to Dr. U. Smith.
The power of attorney, given January 15, 1880, remained unrevoked until December 1,
1881, and in the revocation, respondent stated that she annulled and made void the power of
attorney made by her in writing and bearing date the fifteenth day of January, 1880, wherein
she did make, constitute, and appoint U. Smith her true and lawful attorney for the purpose
and with the power therein set forth. Aside from the presumption that respondent knew the
law, that is to say, that she had no right to pay the note except as provided by the statute, she
did not state that she was in fact ignorant of the statutory provisions, or that U. Smith
deceived her in this regard, but, on the contrary, she was glad to have him attend to the
business.
In our opinion we stated, in this connection, that she acted according to the advice of her
counsel in executing the power of attorney. We had reason to suppose that this fact was
conceded. It certainly was important. Counsel for appellant stated it in his brief, in this
language: Plaintiff, in her complaint, seeks to excuse her own illegal act and contract, and to
justify the bringing and maintenance of this action, by pleading her ignorance of the law, and
want of legal advice. The proofs show that plaintiff acted advisedly, upon the advice of
counsel, and with full knowledge of all the facts.
19 Nev. 259, 284 (1886) Adams v. Smith
with full knowledge of all the facts. No new fact has come to her knowledge since the
execution of the power of attorney. But ignorance of the law or bad advice of counsel is no
ground for relief against the consequences of her own illegal act and contract.
This statement, that respondent acted advisedly, upon the advice of counsel, is in no
manner attempted to be denied by counsel for respondent in their lengthy and able brief,
although their attention was called to the pages of the transcript sustaining it. But the
evidence does show the fact to be as stated. Respondent testified: Mr. Tuska was my lawyer
when I was appointed administratrix, and attended to that business for me; and U. Smith
stated that said power of attorney was written by Wal. J. Tuska, the acting attorney of said
estate, on or about January 15, 1880. With this evidence only before us, it is preposterous to
ask us to declare that Mr. Tuska was not the attorney of respondent, but was the attorney of
U. Smith.
Finally, if it be conceded that appellant cannot avail himself of the fact that the verdict and
judgment are not sustained by the evidence, for the reason that, in the statement, it is not
specified that the amount due appellant should have been deducted from the amount of rents
collected, still he would be entitled to have that sum deducted from the judgment, or a new
trial, by reason of the instructions of the court excepted to and specified in the assignments of
error, wherein the jury were charged not to deduct from the rents any sum on account of any
debt which Adams owed defendant.
Rehearing denied.
____________
19 Nev. 284, 284 (1886) State v. Maynard
[No. 1217.]
THE STATE OF NEVADA, Respondent, v. JOHN
MAYNARD, Appellant.
Criminal LawRights of Defendant as a WitnessConsideration of His Testimony.The defendant in a
criminal case has a right to have the jury consider declarations in his favor made by him at the trial, when
a witness, in connection with his actions and words at the time of the commission of the alleged offense.
IdemEvidenceTestimony of DefendantConclusions From His ActsIntentInstructions.It cannot be
said as a fact in every case, or as a rule of law in any, that if a defendant's actions, when considered by
themselves alone, are inconsistent with the declared intent, it is safer to draw a conclusion from his
actions than from his sworn statement as a witness.
J. T. Baker, for Appellant:
The court erred in assuming questions of fact as to the acts and testimony of defendant.
(Hayne on N. T. 341, Sec. 121, Sub. 4.)
W. H. Davenport, Attorney-General, and H. F. Bartine, for Respondent:
The instructions of the court as to the weight to be given to the testimony of defendant
may be open to criticism, but there is no assumption of disputed facts. The taking was
admitted and the language objected to can scarcely be deemed error. The court has the right to
point out the distinction between different kinds of testimony. It is also proper to caution the
jury against giving too ready credence to the testimony of a defendant. (State v. Hing, 16 Nev.
310.) The actions of a defendant are a safer guide to the judgment than his subsequent
declarations in his own favor, and the defendant was not prejudiced by the instruction.
Appellant was convicted of the crime of grand larceny. Witnesses for the state testified to
the following facts: The alleged larceny was in a saloon in Eureka, where there was, at the
time, quite a crowd of people, and much drinking. A man by the name of Brayman, when
intoxicated, changed a certificate of deposit with the saloon keeper, for money, receiving in
exchange gold and silver and a fifty dollar greenback. When the money was being counted
out by the saloon keeper, defendant went up to the bar where Brayman was standing, and put
his arm on the latter's shoulder. The saloon keeper told him to stand back, when defendant
moved to the other side of Brayman.
told him to stand back, when defendant moved to the other side of Brayman. No witness saw
defendant take any money from the counter. In a few minutes after the certificate was
changed the fifty dollar greenback was missing, when the saloon and bar keeper instituted a
search for the same. They locked the front door, so that no one could go out. During the
search, when defendant was sitting in the back room, Edward Burns told the saloon keeper
that he saw defendant put something in his boot; whereupon the saloon keeper went to
defendant and told him to give up the greenback. Defendant asked to whom the bill belonged.
The saloon keeper replied that that made no difference, and in a positive manner told him to
give it up. Defendant refused, when the saloon keeper told him they had searched the balance
in the house, and would search him; that he had the bill in his right boot. When asked to give
up the bill, defendant denied having it, and asked if they thought he was a thief. He wanted to
fight because he was requested to give it up. He sprang to his feet, threw off his coat and hat,
and told the saloon and bar keeper to search him. He pulled off his left boot first. He was then
told to pull off his right boot. He objected to doing so, saying his right ankle was sore. Finally
he pulled off his right boot, and the fifty dollar bill received by Brayman from the saloon
keeper dropped on the floor.
Burns testified that he was standing a short distance from the bar, talking with defendant,
when the saloon keeper was changing the certificate of deposit; that defendant went to the bar
and stood by Brayman's side; that shortly afterwards the bill was missing, and several persons
began to look for it on the floor, the defendant assisting in the search; that about the same
time defendant went into the back part of the room and put something into his right boot; that
he then told the saloon keeper that defendant had the bill.
The defendant testified in his own behalf, in substance, as follows: He had been drinking.
He saw the greenback lying on the floor. He knew it was money, but did not know the
denomination of the bill or the person to whom it belonged. When he picked it up he thought
he would take it and wait until he found out who owned it. He had no intention of stealing the
bill when he picked it up, and at no time intended to keep it, when it was claimed by the loser.
He did not know that it belonged to the saloon or bar keeper, and wanted to know the
true owner before he would give it up.
that it belonged to the saloon or bar keeper, and wanted to know the true owner before he
would give it up. He did not give up the bill when it was demanded of him because he did not
know the owner. The reason why he put the bill in his boot was that when he was drinking he
usually put his money in his boot; and, besides he had no pocket that was whole. He could
easily have left the saloon before he was accused of stealing, if he had intended to keep the
bill from the owner. He would have given up the bill at first if the saloon and bar keeper had
asked him for it in a gentlemanly manner; but by their violent conduct they made him mad,
and he refused to give them any satisfaction. He expected the owner would claim it, when he
intended to give it up.
The court instructed the jury that, under the statute of the state, the defendant had a right to
testify in his own behalf, and no inference of guilt was to be drawn against him because he
was placed on trial charged with a public offense; that the law presumes every one to be
innocent until he is proven guilty beyond a reasonable doubt; that if defendant picked up the
bill not knowing who was the owner thereof, and at the time had no intention of stealing the
same, the fact that he secreted it after finding it did not constitute the crime of grand, or any
larceny; that if the defendant did not intend to steal the bill when he took it, the jury should
find him not guilty.
At the request of the state, the court instructed the jury as follows: In order to constitute
the crime of grand larceny the taking must have been with a felonious intent. There can be no
positive or direct proof of criminal intent, except by confession. Intent can be established only
as the natural and logical deduction from acts and declarations. Every person is presumed to
intend the natural consequences of his actions. The actions of the defendant are a safer
foundation from which to draw a conclusion as to his intention at the time of the alleged
taking than any subsequent declarations in his own favor. And if you believe from the facts
which you think have been established, that the natural and logical deduction is that the
taking was with criminal intent, then I instruct you that such proof of the intent (if you find
there has been such proof) is as binding upon you, and entitled to the same force, as if the
evidence of criminal intent had been direct and positive.
It is claimed by counsel for appellant that the italicized portion of this instruction,
especially, is erroneous and prejudicial to the defendant.
tion of this instruction, especially, is erroneous and prejudicial to the defendant. The
defendant had a right to testify as to his intent, and make any explanation of what he did and
said at the time of the alleged larceny. Before the enactment of the statute allowing
defendants in criminal cases to testify in their own behalf, the only method of ascertaining the
intent was by inference from their words and acts; but now, if the defendant testifies, the jury
may and should ascertain it by a careful examination of his acts and words at the time of the
commission of the alleged crime, and his testimony at the trial. He has a right to have the jury
consider declarations in his favor, made by him at the trial, when a witness, in connection
with his acts and words at the time of the commission of the alleged offense. He has a right to
explain his acts and sayings, and declare his intent; and the jury have no right to draw their
conclusion as to his intention from previous acts and declarations alone, excluding his
testimony from consideration. If defendant's declared intent was inconsistent with his acts at
the time of the alleged larceny, the jury were at liberty to discard it as false; and it was their
duty to do so, if, from all the evidence, including declarations in his own favor made at the
trial, they believed, beyond a reasonable doubt, that at the time defendant picked up the bill
he intended to steal it.
It is true the court did not instruct the jury to disregard defendant's declarations, or
testimony in his own favor, in deciding upon his intent at the time of the alleged larceny; but
they were advised that they would be less liable to err, if they should draw their conclusions
from his actions, rather than from any subsequent declarations in his own favor; or, in other
words, from his testimony favorable to himself. In our opinion the court, in effect, advised the
jury to disregard the testimony of defendant favorable to himself, if it was inconsistent with
the natural and logical deductions from his acts. This instruction did not refer, in general
terms, to the comparative value, as evidence, of acts accompanying the commission of an
alleged offense and subsequent exculpatory testimony of the defendant given at the trial; but
it advised the jury that, in the case then being tried, the actions of the defendant were a safer
foundation from which to draw a conclusion as to his intention at the time of the alleged
stealing than any subsequent declaration in his favor. In other words, the jury were told, as a
rule of law, that they might more safely conclude that the defendant had forsworn himself
in testifying as to his intention, than that they would be led astray by adopting the natural
and logical deduction from his acts; that they would be less liable to draw unjust
conclusions from his actions than from his sworn testimony in his own favor.
that they might more safely conclude that the defendant had forsworn himself in testifying as
to his intention, than that they would be led astray by adopting the natural and logical
deduction from his acts; that they would be less liable to draw unjust conclusions from his
actions than from his sworn testimony in his own favor.
The defendant knew whether he intended, in fact, to steal the bill. He swore he did not,
and if his testimony was true he was not guilty of the offense charged. He had a right to have
the jury say, from the entire evidence, from all the facts and circumstances, including his own
testimony, what his intention was, without any expressed opinion of the court in respect to
matters of fact. The rule laid down by the court is opposed to the evident intent of the statute
allowing persons charged with crime to testify in their own behalf, and, in effect, reinstates
the common-law rule that actions must speak for themselves, and the intention must be
inferred alone from the acts and words of the accused. If, in ascertaining the intent, the jury
may be charged that the defendant's sworn statement is a more imperfect guide to the truth
than his acts, why allow him to testify at all as to his intentions? If we admit that, in most
cases, at least, juries should and will disregard as false the motive or intent assigned, if it is
inconsistent with the external circumstances, still the charge under consideration is wrong. It
cannot be said as a fact in every case, or as a rule of law in any, that if a defendant's actions,
when considered by themselves alone, are inconsistent with his declared intent, it is safer to
draw a conclusion from his actions than from his sworn statement as a witness. Such a charge
is a decision upon a question of fact. It is a declaration that certain evidence tending to prove
a material fact is more valuable in ascertaining the truth, because safer to follow, than is
certain other evidence that would disprove the former, if it should be believed by the jury.
Although the situation of defendants in criminal cases may be such, in many instances, as to
induce them to testify falsely, still they may speak the truth; and they have the right to ask the
jury to believe their sworn statements, although they may be inconsistent with their actions. It
was for the jury to consider both sources of information.
Suppose A., having a large sum of money on his person, gets drunk, and is in danger of
squandering it.
gets drunk, and is in danger of squandering it. He lays it down, and B., his friend, for the sole
purpose of saving it for him, takes it and carries it home, intending to return it when A. gets
sober. A. misses the money, and meeting B. accuses him of having taken it, and demands that
it be given back. B., finding A. still intoxicated, denies having it, or having taken it. C., who
saw B. take the money, causes the latter's immediate arrest. B., testifying in his own behalf,
admits the above facts, but states that he was A.'s friend; that he intended to deprive A. of his
money only temporarily; that he intended to save it for him, and did not intend to steal, when
he took the money, or at any time. In such a case the instruction under consideration, if
followed, would convict B., and yet he would be innocent of the crime charged. (See State v.
Van Winkle, 6 Nev. 340; People v. Farrell, 31 Cal. 576.)
The judgment and order overruling defendant's motion for a new trial are reversed, and the
cause remanded.
By Hawley, J., concurring:
Actions often speak plainer than words, and in many cases, undoubtedly, furnish a safer
foundation from which to draw a conclusion as to the intentions of men than declarations
thereafter made in their own favor. (State v. McGinnis, 6 Nev. 112.) But this rule is neither
universal nor infallible. It therefore follows that in all criminal cases where the defendant
testifies in his own behalf, it is the duty of the jury to determine the intent of the defendant
from all the facts and circumstances of the case. His testimony at the trial must be considered
in connection with his acts, conduct, and declarations at the time of the commission of the
alleged offense, uninfluenced by any intimation from the judge as to which is entitled to the
most credit. The instruction of the court invaded the province of the jury in this respect, and
may have prejudiced the defendant. I therefore concur in the judgment.
____________
19 Nev. 291, 291 (1886) Thompson v. Huffaker
[No. 1227.]
BANK and G. W. HUFFAKER, Defendants. THE CENTRAL
PACIFIC RAILROAD CO., Appellant.
Trust FundCreditorParticipation in Benefits of Suit by Another CreditorLaches.In order to enable a
creditor to participate in the benefits of a legal proceeding by another creditor against a common fund, he
must be guilty of no laches in satisfying the conditions required of him by the court.
I. B. Marshall, for Appellant:
I. On the 22d of March, 1884, the court made and entered its judgment in Thompson v.
Reno Savings Bank and G. W. Huffaker, in favor of Thompson and against Huffaker, for the
amount claimed in his complaint; and ordered and adjudged that the appellant's complaint in
intervention be allowed to stand as a claim against the defendant Huffaker, and against any
fund realized in the action, and that it be allowed to participate in the judgment against the
said Huffaker. This being a final judgment, never having been reversed or set aside, still
remains in full force and effect. (Belt v. Davis, 1 Cal. 134; Reynolds v. Harris, 14 Cal. 667;
Hahn v. Kelly, 34 Cal. 391.)
II. As the plaintiff Thompson did not claim any contribution from the appellant, at the
time it proved up its case and established its right before the court, he is considered to have
waived it. (2 Dan. Ch. Pl. & Pr., 1213, 1214.)
III. All persons having a prima facie claim to a trust fund are entitled to be heard at any
time before actual distribution. (Matter of Howard, 9 Wall. 175.)
J. F. Alexander, for Respondent:
I. No evidence was offered tending to show that petitioner was entitled to come in within
fourteen months after the decree. There was no offer even to pay costs.
II. The decree was final; nothing remained for the court to do after thirty days.
do after thirty days. The fund was distributed, and this court affirmed that decree in all
respects. (Edmiston v. Lyde, 1 Paige, 637; Johnson v. Everett, 9 Paige, 636; Dickinson v.
Codwise, 11 Paige, 189.)
The facts out of which this appeal arose are as follows: Thompson, having a judgment at
law against the Reno Savings Bank, an insolvent corporation, commenced this suit in equity
against Huffaker to enforce the payment of his subscription to the capital stock of the bank.
During the pendency of the suit, the district court, upon the application of the Central Pacific
Railroad Company, appellant, also a creditor at law of the bank, made an order allowing it to
participate ratably in any judgment that might be recovered against Huffaker upon its
contributing ratably to the expenses of the suit. This order was made March 22, 1884. No
compliance was made with its terms, and no further steps were taken in relation to the subject
matter by the appellant, until the fifth day of September, 1885, when it again moved the court
to be allowed to share in the trust fund upon paying its proportion of the costs and expenses
of the suit. The district court overruled the motion. The appeal is from this order.
The suit was brought by the plaintiff, Thompson, for the benefit of himself and all other
creditors of the bank who should come in and contribute to its expense. In due time a decree
was entered requiring defendant Huffaker to pay into the court the amount of his unpaid
subscription to the capital stock of the bank. The moneys so to be paid were by the terms of
the decree to be distributed ratably among the plaintiff and such other creditors of the bank,
including appellant, as should, within thirty days from the entry of the decree, make proof of
their claims and pay their proportionate share of the costs and expenses of the suit. In this
latter respect the decree observed the general rule of equity that creditors having claims
similar to that of a plaintiff are not precluded from participation in a trust fund because of
their not being parties to the suit. But such creditors must be diligent in the assertion of their
rights.
In Williams v. Gibbes, 17 How. 254, the court said: Now the principle is well settled, in
respect to these proceedings in chancery for the distribution of a common fund among the
several parties interested, either on the application of the trustee of the fund, the
executor, or administrator, legatee or next of kin, or on the application of any party in
interest, that an absent party, who had no notice of the proceedings, and not guilty of
willful laches or unreasonable neglect, will not be concluded by the decree of distribution
from the assertion of his right by bill or petition against the trustee, executor, or
administrator, or, in case they have distributed the fund in pursuance of an order of the
court, against the distributees."
chancery for the distribution of a common fund among the several parties interested, either on
the application of the trustee of the fund, the executor, or administrator, legatee or next of kin,
or on the application of any party in interest, that an absent party, who had no notice of the
proceedings, and not guilty of willful laches or unreasonable neglect, will not be concluded
by the decree of distribution from the assertion of his right by bill or petition against the
trustee, executor, or administrator, or, in case they have distributed the fund in pursuance of
an order of the court, against the distributees.
But appellant makes no explanation of its failure to avail itself of the order of March 22,
1884, made at its request, nor of its failure to come in within the time limited by the decree
and pay its proportion of the expenses of the suit; nor is any excuse offered for the delay in
the commencement of the present proceedings. By reason of these laches appellant lost its
opportunity to share in the fund.
Other facts occurred during the period of nearly eighteen months within which appellant
failed to urge its claim which have an important bearing upon the justice of the order of the
district court. Within this time the decree in favor of the plaintiff and against the defendant
Huffaker, heretofore mentioned, was entered, and an appeal therefrom taken. During the
pendency of the appeal the case of Thompson v. Reno Savings Bank and Lake, ante, 103, was
decided by this court. That case decided that Lake was liable to the creditors of the Reno
Savings Bank as a subscriber to the capital stock of the bank. Huffaker's subscription was
made under similar circumstances to that of Lake, and a similar result might naturally have
been anticipated.
The order of the district court is affirmed.
____________
[No. 1228.]
WILLIAM THOMPSON, Respondent, v. RENO SAVINGS BANK and M. C. LAKE,
Defendants. THE CENTRAL PACIFIC RAILROAD CO., Appellant.
AppealAuthentication of PapersCertificate of Clerk.In the authentication of papers to be used upon
appeal, the policy of the statute is to restrict the authority of the clerk to the record of the case.
IdemPresumptionEvidence.When the motion upon which an order was passed was one that could be
made or opposed on other evidence than the records of the case, the fact cannot be established by the
certificate of the clerk, and it must be presumed, in the absence of an affirmative showing to the contrary,
that evidence necessary to support the order was introduced at the hearing.
Appeal from the District Court of the Seventh Judicial District, Washoe county.
I. B. Marshall, for Appellant:
M. N. Stone, for Respondent:
This appeal is from an order similar to that appealed from in Thompson v. Huffaker, ante.
The transcript contains the judgment roll in Thompson v. Reno Sav. Bank and M. C. Lake, the
judgment roll, writ of execution, and sheriff's return thereof in the case of Central Pac. R. Co.
v. Reno Sav. Bank, also a verified petition of appellant, and notice of motion, and proof of
service thereof. Accompanying these papers is the certificate of the clerk stating that they are
correct copies of the originals used at the hearing of the motion. The certificate further states
that these papers constitute the only evidence used at the hearing. In this latter respect the
certificate must be disregarded. In the authentication of papers to be used upon appeal, the
policy of the statute is to restrict the authority of the clerk to the record of the case. He may,
under section 1401, Comp. Laws, certify such records as may be necessary for an appellant to
furnish this court; but if matters not of record in the case are to be reviewed, the statute
provides for a statement specifically setting forth the particular errors upon which the
appellant intends to rely upon the appeal. Both parties may take part in the preparation of this
statement, and the district judge may amend it to conform with the truth. Section 1398,
Comp. Laws, dispenses with a statement when an appeal is taken from an order made upon
affidavits alone, and section 1401 makes it the duty of the clerk, upon an appeal from an
order, to certify the papers used at the hearing of the motion. These provisions are relied upon
to sustain the course pursued; but neither of them can avail appellant.
pursued; but neither of them can avail appellant. Its motion was one which could have been
made or opposed on other evidence than the records of the case, and the fact cannot be
established by the certificate of the clerk. Every presumption consistent with the record must
be indulged in favor of the order of the court. We must presume, in the absence of an
affirmative showing to the contrary, that evidence necessary to support the order was
introduced at the hearing. Order affirmed.
____________
19 Nev. 295, 295 (1886) Turner v. Fish
[No. 1230.]
E. D. TURNER, Appellant, v. G. H. FISH, Respondent.
County OfficersSalary ActRepeal of.The salary act of 1879 was repealed by the first section of the act of
1883. (Stat. 1883, 78.)
IdemPart of a Statute UnconstitutionalEffect.Sections 1 and 3 of the act of 1883 are valid,
notwithstanding the invalidity of section 2, which is entirely independent of, and disconnected with, the
other sections.
Trenmor Coffin and Geo. S. Sawyer, for Appellant.
W. H. Davenport, Attorney-General, and H. F. Bartine, for Respondent.
Appellant is the sheriff of Lincoln county. He claims that the act fixing the salaries of the
various county officers in the several counties of this state, (Stat. 1879, 133) has never been
repealed or superseded by any valid law; and that under the provisions of section 9 of said act
he is entitled to a salary of two hundred and fifty dollars per month. He applied to the district
court for a writ of mandamus to compel the county auditor to issue a warrant for said monthly
salary. The district court denied the writ.
The salary act of 1879, and all other acts amendatory thereof and supplementary thereto,
were repealed by the provisions of section 1 of the "act to repeal the `act fixing the salaries
of the various county officers of this state,'" approved March 1, 1SS3.
19 Nev. 295, 296 (1886) Turner v. Fish
section 1 of the act to repeal the act fixing the salaries of the various county officers of this
state,' approved March 1, 1883. (Stat. 1883, 78.) The third section provides when the act
should take effect. The second section reads as follows: Nothing contained in this act shall
be of effect in any county having at the time of the approval of this act a duly-chartered city
government. Conceding that this section is unconstitutional for the reason that the exception
stated is not based upon any reasonable classification, (State v. Boyd, ante 43,) it does not
necessarily follow that the other sections of the act are void. It is manifest, upon an
examination of this statute, that the legislature intended to repeal the salary act of 1879 in
every county except Ormsby, as that was the only county in the state having, at the time
mentioned, a duly-chartered city government. If the exception sought to be made by section
2 is unconstitutional, the effect would be to make this section invalid, and no county in the
state would be excepted from the provisions of section 1.
The provisions of section 1 and 2 are not so mutually connected with and dependent on
each other, as conditions or compensations for each other, as to warrant the belief that the
legislature intended them as a whole. It must therefore be presumed that the legislature
intended, notwithstanding the invalidity of section 2, that section 1 should stand. As section 2
is entirely independent of and disconnected from the other sections, its unconstitutionality
does not affect the other portions of the act which are constitutional of themselves and
capable of being enforced without reference to the provisions of section 2. Sections 1 and 3 of
the repealing act of 1883 must therefore be sustained. (State v. Eastabrook, 3 Nev. 180;
Evans v. Job, 8 Nev. 322; State v. Swift, 11 Nev. 147.)
This disposes of the case, and renders it unnecessary to consider the objections urged
against the provisions of section 7 of the act regulating the compensations of county officers
in the several counties of this state. (Stat. 1885, 87.) There is no existing statute that entitles
appellant to the salary claimed in his petition.
The order of the district court denying the writ of mandamus is affirmed.
____________
19 Nev. 297, 297 (1886) State v. Ward
[No. 1220.]
THE STATE OF NEVADA, Respondent, v. GEORGE W.
WARD, Appellant.
IndictmentLarcenyDifferent Articles.The indictment properly charged defendant with stealing two
horses, one saddle and one blanket. The stealing of different articles at the same time and place
constituted but one crime.
Separation of JuryWhen New Trial Should Not be Granted.A new trial should not be granted, upon the
ground of a separation of the jury, where it satisfactorily appears that no juror had any communication
with any outside person in relation to the case, or received any impressions except those derived at the
trial.
LarcenyIntent to Deprive Owner of his Property.The fact that one took a horse from the premises of its
owner, without the latter's knowledge or consent, rode it for a certain distance, and then abandoned it,
after removing and concealing the saddle and blanket, are sufficient to justify a finding of intent to
permanently deprive the owner of his property, although the person charged has testified that he expected
some one to take the property back, or that he expected the animal to stray back.
IdemPresumptionsBurden of Proof.If the jury were satisfied, beyond a reasonable doubt, that defendant
used the property in such a manner that the owner would be likely to be permanently deprived of it, the
presumption is that he intended so to use it, and the burden is upon him to rebut such presumption by
competent evidence.
InstructionsIntent of Defendant.Several instructions, all having reference to the intent of defendant at the
time of his taking the property from the owner, reviewed, and the rulings of the court, thereon, sustained.
IdemToo Many Instructions.The tendency of courts is to give too many instructions. A few plain
propositions, embracing the law upon the facts of the case, are greatly preferred, in every case, to a long
string of instructions, running into each other, and involved in intricacies, requiring as much elucidation
as the facts of the case themselves.
Credit to be Given to Defendant's TestimonyProvince of Jury.It is the province of the jurynot the
courtto say what credit shall be given to the testimony of the defendant.
EvidenceDeclarations of Co-defendantWhen AdmissibleError Cured.The declarations of a
co-defendant made while the conspiracy was pending, and in furtherance of the common design, is
admissible in evidence. If such declarations are admitted before proof of the conspiracy the error is cured
by subsequent evidence of the conspiracy.
Intent of DefendantMode of Leaving the CountryFear of Arrest For Debts.The court did not err in
refusing to allow defendant to answer the question: Why it was he did not leave * * * on the train? A
belief by the jury that defendant would have gone away on the cars, and would not have taken the horses,
if he had not feared arrest, would not have tended to show that, since he could not go by
rail, he did not intend to deprive the owner permanently of his property and also to
depart from the state.
19 Nev. 297, 298 (1886) State v. Ward
have tended to show that, since he could not go by rail, he did not intend to deprive the owner
permanently of his property and also to depart from the state.
Appeal from the District Court of the Fourth Judicial District, Elko County.
The instruction referred to in the opinion of the court as being on page 63 of the transcript
reads as follows: In the exercise of a right which the law accords to him, the defendant has
testified as a witness in his own behalf, and gives you his version of the facts connected with
the transaction out of which this prosecution arose. The fact that he is charged with the
commission of a public offense is not a circumstance which, of itself, impairs his credibility,
until impeached by some legal means which may be used for that purpose, his evidence is
entitled to as much credit as that of any other witness. In considering the effect of evidence
you are not bound to decide in conformity with the declarations of any number of witnesses,
which do not produce conviction on your minds, as against a less number, or a presumption,
or other evidence satisfying your minds. * * *
Refused.
J. H. Rand, for Appellant:
I. The jury, in defiance of the authority of the court, persisted in separating. Such conduct
tended to prevent a fair and due consideration of the case, and the court erred in refusing to
grant a new trial upon this ground. (People v. Douglass, 4 Cow. 36; Hines v. State, 8 Humph.
597; Stone v. State, 4 Id. 27; Riley v. State, 9 Id. 646; State v. Prescott, 7 N. H. 287; McLain
v. State, 10 Yerg. 241; Maher v. State, 3 Minn. 444; State v. Parrant, 16 Minn. 178; State v.
Sherbourne, Dudley, Ga. 28; Madden v. State, 1 Kan. 340; Early v. State, 1 Tex. App. 248;
People v. Gray, 61 Cal. 164; Davis v. State, 35 Ind. 496; Lombardo v. Case, 45 Barb. 95;
Philips v. Com. 19 Grattan, 485; Jumperty v. People, 21 Ill. 375; Woods v. State, 43 Miss.
364; People v. Ransom, 7 Wend. 417; Peiffer v. Com. 15 Penn. St. 468; State v. Harris, 12
Nev. 421; State v. Madoil, 12 Fla. 151; State v. Hornsby, 8 Rob., La., 554; People v. Backus,
5 Cal. 275; McKinney v. People, 2 Gilman, 540.
II. The court erred in permitting the witness Brown to testify to the declarations of
defendant Hennessy not made in the presence of defendant Ward.
19 Nev. 297, 299 (1886) State v. Ward
testify to the declarations of defendant Hennessy not made in the presence of defendant Ward.
(1 Green. Ev. 11, 108, 111; 3 Id. 154; 1 Comp. L. 2367; Fouts v. State, 7 Ohio St. 473;
Clawson v. State, 14 Id. 234; Roscoe's Cr. Ev. 89; Whart. on Ev. 1206.)
III. The court erred in sustaining the objections of the district attorney to the following
question: Why did you not leave The Wells on the train? (Davis v. State, 3 Tex. App. 99; 1
Whart. on Ev. 36.)
IV. The jury might have understood from the language used in the instructions given by
the court that, in order to escape a verdict of guilty, it was necessary that the defendant should
have intended to return the horses to the possession of the owner. Such is not the law. (State
v. Ryan, 12 Nev. 401; 1 Bish. Cr. L. 314; Whart. Cr. L. 1786; Roscoe's Cr. Ev. 589.)
V. The court erred in refusing defendant's instructions. (State v. Ryan, 12 Nev. 401;
Wilson v. People, 39 N. Y. 461; Bish. Cr. L. 233, 251, 314, 755, 758; Whart. Cr. L. 1786,
1790, 1773; Roscoe's Cr. Ev. 589.)
I. The indictment is good. The horses, saddle and blanket were all taken at the same time;
the taking constituted but a single transaction. (Waters v. People, 104 Ill. 544; Hoiles v. U. S.,
3 McArthur D. C. 370; State v. Faulkner, 32 La. Ann. 725; State v. Lambert, 9 Nev. 321;
State v. McCormack, 8 Or. 236.)
II. The motion for a new trial was properly overruled. The affidavits of the jurors and
others showed that the defendant was not prejudiced. (Davis v. State, 3 Tex. App. 91; State v.
Madoil, 12 Fla. 151; People v. Boggs, 20 Cal. 432; People v. Symonds, 22 Cal. 352; People
v. Moore, 41 Cal. 238; State v. Harris, 12 Nev. 414; Lee v. McLeod, 15 Nev. 158; State v.
McMahon, 17 Nev. 373; State v. Gray, ante, 212.
III. The declarations of Hennessy to the witness, Brown, were competent and material. (3
Greenl. Ev. Sec. 93; Whart. Cr. Ev. 698; State v. Cardoza, 11 S. C. 237; Avery v. State, 10
Tex. App. 199; Miller v. Dayton, 57 Iowa 423; Jackson v. State, 54 Ala. 234; Whar. Cr. Ev.
698 and notes; State v. Brown, 7 Or. 186.)
19 Nev. 297, 300 (1886) State v. Ward
IV. The question, Why was it that you did not leave Wells on the train? was irrelevant
and immaterial.
Appellant was convicted of the crime of grand larceny. He was jointly indicted with John
Hennessy, but had a separate trial.
1. The demurrer to the indictment was properly overruled. The indictment did not charge
the commission of two distinct offenses, to-wit, grand and petit larceny. The charge was that
defendants willfully and feloniously stole, took, carried, led, and drove away two horses,
described, of the value of one hundred and fifty dollars, and, at the same time and place,
willfully and feloniously stole, took, and carried away, together with the said two horses, one
saddle, of the value of twenty-five dollars, and one blanket of the value of eight dollars, all
the property of W. B. Gibbs. The stealing of the horses, saddle, and blanket at the same time
and place constituted but one crime, and but one offense was charged. A trial and acquittal
upon an indictment charging larceny of the horses only would have been a bar against a
prosecution for stealing the saddle and blanket. (Waters v. People, 104 Ill. 544; State v.
McCormack, 8 Or. 236.)
2. It is strenuously urged that the court erred in refusing to grant a new trial by reason of
alleged misconduct of the jury in separating, without leave of the court, after retiring to
deliberate upon their verdict, and in talking with persons not members of the jury, by which
misconduct appellant was prevented from having a fair consideration of his case. The
affidavits in support of the claim of misconduct are numerous, and those against it are equally
so. We have examined them carefully, but shall not undertake the task of reviewing them in
detail. It is undoubtedly the law that the defendant in any criminal case is entitled, as a matter
of right, to require, in the first instance, a compliance with the ordinary forms of law to secure
him a fair and impartial trial; and if the provisions of law intended for his security are
disregarded, he may require satisfactory evidence from the state that he had not been injured
by reason of such non-compliance. Conceding that there was a separation, and that the wife of
one of the jurors spoke to her husband in the presence of three other jurors, but not about
the case, and that, under the circumstances shown, the burden of proving that there was
no prejudice to appellant resulting from the irregularities complained of was upon the
state, we feel certain that the court did not err in refusing a new trial upon this ground.
19 Nev. 297, 301 (1886) State v. Ward
jurors, but not about the case, and that, under the circumstances shown, the burden of proving
that there was no prejudice to appellant resulting from the irregularities complained of was
upon the state, we feel certain that the court did not err in refusing a new trial upon this
ground. The showing made by the state convinced the court below, as it does us, that there
was no tampering with any juror; that no juror had any communication with any person other
than a juror in relation to the case, or received any impressions except those derived from the
trial. (State v. Jones, 7 Nev. 413; Davis v. State, 3 Tex. App. 101; State v. Harris, 12 Nev.
421.)
3. It is contended that the court erred in giving and refusing certain instructions to the
jury. Appellant, when testifying as a witness in his own behalf, admitted that he and Hennessy
went from Wells, on the Central Pacific Railroad, to the ranch of Gibbs, about fifteen miles
distant, according to a previous arrangement so to do; and at about nine o'clock in the
evening, without consent of the owner, took the two horses, saddle, and blanket described in
the indictment, from the premises where they were kept, rode them to a place about twenty
miles from the state line, and then returned to a point twelve miles from Toano and the
railroad, where they took the saddles from the horses, left them in the sagebrush beside the
road, and abandoned the entire property. He testified that neither he nor Hennessy intended to
steal the property; that they only took it to use three or four days, to enable them to leave the
state; that the intention was that it should be returned to Gibbs; that he made an arrangement
with one Jack Thomas, at Wells, the night before the property was taken, to meet him and
Hennessy near Six Mile canyon, and take the property back to Gibbs; that Thomas did not
meet them as agreed and not wishing to ride the horses into Toano, they left the property,
thinking Thomas would get it, and if he failed to do so, the horses would go home anyway.
The court instructed the jury that if they were satisfied, beyond a reasonable doubt, that
appellant, in connection with Hennessy, took the horses with the intention of permanently
depriving the owner of his property, and without intending to return them, it was a felonious
intent, and they should find him guilty; that if he took them with the intention of using them
temporarily only, and then returning them to their owner, he was not guilty; that in order to
justify the jury in convicting appellant, it was not necessary they should find that he
intended to convert the property to his own use, that is, to keep it permanently himself, or
dispose of it to others;
19 Nev. 297, 302 (1886) State v. Ward
he was not guilty; that in order to justify the jury in convicting appellant, it was not necessary
they should find that he intended to convert the property to his own use, that is, to keep it
permanently himself, or dispose of it to others; that the jury were to determine whether or not
he made any arrangement with Thomas to take the horses back, but that such arrangement, if
made, would amount to nothing, unless entered into in good faith, and appellant really and
honestly believed, at the time he took the property, that Thomas would meet him and take the
horses back to the owner; that if he took them with the intention of permanently depriving the
owner of them, and without really intending to return them, a subsequent abandonment of
them, and allowing their owner to recover them again, would not prevent such taking from
being grand larceny. On behalf of appellant the court charged the jury that they should acquit
unless they believed from the evidence admitted that appellant, when he took the property,
intended to deprive the owner of the same permanently.
From these instructions it is urged that the jury might have understood that, in order to
escape a verdict of guilty, it was necessary that appellant should have intended to return the
horses to the possession of Gibbs, and that such is not the law. It is not claimed that it was
error to tell the jury that the appellant was not guilty if he took the horses with the intention
of returning them to their owner, after a temporary use, as he had testified his intention was.
That was good law, and favorable to him. It was in perfect accord with appellant's theory of
the case; and if his counsel thought that from the court's instruction, although correct as far as
it went, the jury might think it was necessary that appellant should have intended to return the
property, and that such was not the law, he should have asked, in plain language, an
instruction covering the point now made.
In order to find appellant guilty, the jury were bound to believe, from all the evidence, that
he intended to deprive the owner permanently of his property. The jury did not believe that
appellant intended to return it. Having discarded that theory, the intention had to be gathered
from acts alone. Now, it may be that a person might take another's property, and carry it
away, without intending to return it, but without intending a permanent deprivation. His acts,
including his treatment of the property, and the circumstances surrounding the taking,
might show the latter intention in the absence of the former.
19 Nev. 295, 303 (1886) State v. Ward
treatment of the property, and the circumstances surrounding the taking, might show the latter
intention in the absence of the former. But since the jury, after discarding appellant's alleged
intention, had to decide, by acts alone, as to his real intention at the time of taking; and since
he is presumed to have intended the natural consequences of his acts, in the absence of an
intention to return the property, if the jury were satisfied, beyond a reasonable doubt, that he
used the property in such a manner that the owner would be likely to be permanently deprived
of it, the presumption is that he intended to so use it, and the burden was upon him to rebut
such presumption by competent evidence. So the jury were charged by appellant's eleventh
instruction, which declared the law correctly in case he did not intend to return the property.
It is contended, also, that the court erred, in refusing to give instructions two, six, seven,
eight and nine asked by appellant. Every correct principle of law embodied in the second
request was given by the court in other instructions. But it contained the following, which
was properly refused: * * * and if, from all the evidence, the jury have a reasonable doubt
whether or not defendant intended to steal the property, or any part thereof, or only to use it
for a limited period of time, and then allow it to return, or be returned, to the owner, then you
should acquit the defendant. That would have been a charge to acquit if they found that he
intended to use the property temporarily, and then abandon it, after several day's use, a long
distance away, regardless of whether he expected, or had reason to expect, that the owner
would recover it in the natural course of events, or at all. In regard to this it is enough to say
that from such intended use, abandonment, reckless exposure to loss, and other facts in the
case, a jury might well find an intention to permanently deprive the owner of his property;
and it was not for the court to say that a permanent deprivation was not intended, simply
because appellant's primary intention was to use it temporarily, and then forsake it, if such it
was.
By the sixth instruction the court was asked to charge that appellant was entitled to an
acquittal unless the jury were satisfied, beyond a reasonable doubt, that he and Hennessy
intended to assume property in the property taken, or some portion thereof, or to
permanently deprive the owner of his property, or some part thereof. As before stated, in
several other instructions, the court had properly charged concerning the intent necessary
to constitute larceny, and that was sufficient.
19 Nev. 295, 304 (1886) State v. Ward
other instructions, the court had properly charged concerning the intent necessary to
constitute larceny, and that was sufficient. When the wrongful taking and asportation are
admitted, as in this instance, the state's case is made out upon proof of a felonious intent at
the time of taking; and the intent is felonious when the purpose is to deprive the owner
permanently of his property, no matter by what means, whether by assuming property in the
property, or otherwise.
The seventh request is as follows: The jury are instructed that if they believe, from the
evidence in the case, the defendant Ward and his co-defendant Hennessy went to the premises
of W. B. Gibbs, in the night time, and took away therefrom the property described in the
indictment, for the purpose of riding the horses, blanket, and saddle to some place near the
Central Pacific Railroad, and then to leave the horses, blanket and saddle at such point, and
where the owner would probably recover his property; and not intending to return the said
property, or any part thereof, to the possession of the owner, themselves, but not intending to
make any further use of said property, or to permanently deprive the owner of his ownership
in his property, or the use thereof, then the defendant is not guilty of the offense as charged in
the indictment, and it is your duty to acquit, and upon the question of intent the defendant is
entitled to the benefit of every reasonable doubt.
This instruction was ingeniously written, but it was properly refused. It was misleading,
and instead of enlightening the jury it would have confused them. The only evidence in the
case that would have justified an instruction upon the theory that they intended to leave the
property anywhere was the fact itself that it was left or abandoned about twelve miles from
Toano, and from the railroad; although appellant testified that they did not intend to leave it,
but did intend to send it back by Thomas, and that the abandonment was an after-thought. It is
urged by the attorney-general that, under such circumstances appellant was not entitled to an
instruction, otherwise correct, upon the theory that defendants intended to leave the property;
that appellant knew his intention, and, having stated it, he was not entitled to an instruction
upon the theory of subsequent abandonment. We shall not stop to consider this question; nor
shall we consider whether appellant could take property as this was taken, for the purpose
stated in the instruction, with no intention of returning it, or having it returned, but
intending to leave it a long distance away, where the owner would probably recover it,
without intending to permanently deprive the owner of it; whether a probability of
recovery, dependent upon chance and the vigilance and industry of the owner, is
sufficient in law to relieve appellant of the imputation of a felonious intent.
19 Nev. 295, 305 (1886) State v. Ward
the instruction, with no intention of returning it, or having it returned, but intending to leave it
a long distance away, where the owner would probably recover it, without intending to
permanently deprive the owner of it; whether a probability of recovery, dependent upon
chance and the vigilance and industry of the owner, is sufficient in law to relieve appellant of
the imputation of a felonious intent. But we do not hesitate to say that, in such a case, the
finding of a jury that a permanent deprivation of property was intended is supported by the
facts stated. (State v. Davis, 38 N. J. Law, 178; State v. Slingerland, ante, 135.)
There was no testimony to the effect that the owner would probably recover the property
if left where it was abandoned, twelve miles from Toano, or that appellant had good reason to
think it would be recovered. He testified that he thought the horses would go home, but that
did not tend to show any fact from which the jury could say there was any probability that the
owner would recover them. Gibbs, the owner, stated that the horses were born and raised in
the vicinity of, and were accustomed to, his ranch. In eight or ten days after they were taken
they were found by Gibbs at his ranch. But there was no evidence that, as a rule, horses
turned loose, as far away as these were, would go home, or that these would probably do so.
Again, as before stated, the only evidence that defendants intended to leave the property
anywhere was the fact that it was left at a place about twelve miles from Toano. Upon this
state of facts it would have been misleading to have charged the jury upon the hypothesis that
they took the property for the purpose of riding it to some place near the railroad, and then to
leave it at such point, and where the owner would probably recover it. The statement should
have accorded with the facts. As to the place to which they intended to ride, and there to leave
the property, the jury should have been limited to the place where it was left. There may have
been many points near the railroad from which it would have been much more probable
that the owner would recover his property than from the place where it was left, and the
language of the instruction permitted the jury to include such points as the place where
defendants intended to leave the property.
The eighth request was to the effect that if the jury found defendant took and rode the
property to some point near the line of the Central Pacific Railroad, and voluntarily
abandoned it, and did not intend to make any further use thereof, they should consider
that fact as a circumstance in determining the motive of the defendant in taking it."
19 Nev. 295, 306 (1886) State v. Ward
defendant took and rode the property to some point near the line of the Central Pacific
Railroad, and voluntarily abandoned it, and did not intend to make any further use thereof,
they should consider that fact as a circumstance in determining the motive of the defendant in
taking it. It would have been uncertain which of the several facts enumerated, the jury were
to consider as a circumstance; but conceding that the fact referred to was the last one
mentioned, the jury might have concluded that an intent at the time of abandonment, instead
of at the time of taking, to make no further use of the property, was a circumstance for them
to consider. This instruction is objectionable, also, for the reasons last expressed concerning
appellant's seventh request. In determining appellant's intent, it was the jury's duty to consider
all the evidence in the case, and so they were instructed. But, without considering the
objections to this request already stated, it must be admitted that if the court erred in refusing
to give it, then, after charging the jury to consider all the facts in the case, it would have been
equally the court's duty to give others, if asked, upon every important circumstance disclosed
at the trial, and explanatory charges for the other side. There must be an end to the giving of
instructions, and the tendency of courts is to give too many.
We agree with the supreme court of Missouri: A few plain propositions, embracing the
law upon the facts of the case, are greatly to be preferred, in every case, to a long string of
instructions, running into each other, and involved in intricacies, requiring as much
elucidation as the facts of the case themselves. (State v. Mix, 15 Mo. 153.) This court will
not reverse the judgment of the court below for the refusal to give instructions, provided it
appears from the record that the law of the case has been laid down properly and fairly by the
court in instructions which it did give to the jury. Instructions are to enable the jury to
understand the law of the case. A few short, pithy, sententious instructions, embodying the
law of the case, will always be better understood, and will have more effect upon the triers of
fact, than a long list of instructions loaded with words, generally so involved that it tends to
confuse rather than conduct the jury to a proper conclusion. (State v. Floyd, Id. 250.)
In this case, where the only question of fact was as to appellant's intention at the time
the property was taken, the instructions given and refused cover twenty-six pages of the
transcript.
19 Nev. 295, 307 (1886) State v. Ward
appellant's intention at the time the property was taken, the instructions given and refused
cover twenty-six pages of the transcript. In charging the jury it should be the aim of the court
not to give undue prominence to any phase of fact which the testimony tends to establish. If
there be apparent incompleteness or weakness of proof on any of the controverted issues in
the cause, counsel will usually dwell on this in argument. * * * But when parties ask a charge
which isolates certain enumerated facts or circumstances, real or supposed, and invoke the
instruction of the court on these, as circumstances especially to be weighed in the cause, the
usual result is to give such facts and circumstances great, if not undue, prominence before the
jury; and if given, the charge should be accompanied with a fair and candid statement of any
facts and circumstances which point to the opposite conclusion. Less than this is apt to leave
on the minds of the jury an impression that the convictions of the presiding judge incline in
favor of the party such instructions are supposed to benefit; and the supposed bias is none the
less patent and apparent, even though, in giving such charge, the court adds: These
circumstances are to be considered with the other evidence in the case.' (Durrett v. State, 62
Ala. 441; and see Castro v. Illies, 22 Tex. 503; McCartney v. McMullen, 38 Ill. 240;
Blankenship v. Douglas, 26 Tex. 230; State v. Homes, 17 Mo. 379; Paul's Adm'r, 16 Mo.
241, 242.)
The same reasoning applies to appellant's tenth request.
As to the ninth it is sufficient to say that, admitting the proposition therein stated to be
correct as a legal principle, it was entirely inapplicable to the facts of this case, in view of the
many suspicious facts and circumstances disclosed by the evidence.
The instruction found on page sixty-three of the transcript, refused by the court, should not
have been given. It was the province of the jury, and not the court, to say what credit should
be given to appellant's testimony. The court treated the entire page as one request, and we
have no means of knowing that it was error to do so. We think the jury was fairly instructed.
4. W. J. Brown, a witness for the state, who lived about eighteen miles from Wells, and
thirty miles from Gibbs' ranch, testified that on the day after the property was taken he saw
appellant and Hennessy at his place, where they got breakfast and fed their horsesthose
described in the indictment.
19 Nev. 295, 308 (1886) State v. Ward
appellant and Hennessy at his place, where they got breakfast and fed their horsesthose
described in the indictment. Witness was asked if he heard Hennessy say what they were
doing. It was admitted that appellant was not present, and his counsel objected to the
question because no foundation had be laid to bind Ward by Hennessy's declaration; that no
conspiracy had been shown, and the offense, if any, had been consummated. The objections
were overruled, and the witness answered that, to the best of his recollection, Hennessy said
We are going out to fetch in some mavericks;' though he might have said, I am going out.'
Witness afterwards said: I had asked Hennessy what they intended to do. I have a few head
of cattle, and I asked him if he intended to bother them. Hennessy said, No;' that I was a poor
man and had worked hard for what I had, and they would not bother my stock. Hennessy said,
first, they would not bother my stock. Ward then came in, and Hennessy said again, in his
presence, that they would not bother my stock. Ward said nothing.
At the trial appellant did not pretend that they were, in fact, hunting mavericks. It is
claimed by the state that this testimony was material as tending to show that Hennessy's
object was to divert suspicion from both defendants. We are of the same opinion, and it
becomes necessary, therefore, to decide whether this declaration, made in the absence of
appellant, was admissible as against the latter. In cases of crimes perpetrated by several
persons, when once the conspiracy or combination is established, the act or declaration of one
conspirator or accomplice, in the prosecution of the enterprise, is considered the act or
declaration of all, and therefore imputable to all. All are deemed to assent to, or command,
what is said or done by any one in furtherance of the common object. (Whar. Crim. Ev. Sec.
698; 3 Greenl. Ev. Sec. 94; Hannon v. State, 5 Tex. App. 550.)
If, as claimed, the declaration in question was not strictly admissible at the time it was
received, because the conspiracy had not been fully shown, its admission was not a reversible
error, since the conspiracy was shown subsequently. (Whar. Crim. Ev. Secs. 698, 698 a; 3
Greenl. Ev. Sec. 92; Scott v. State, 30 Ala. 509; Avery v. State, 10 Tex. App. 210; State v.
Cardoza, 11 S. C. 237.)
The evidence, including the testimony of appellant, shows a conspiracy, and Hennessy's
declaration was admissible, if it was made while the conspiracy was pending, and in
furtherance of the common design.
19 Nev. 295, 309 (1886) State v. Ward
conspiracy, and Hennessy's declaration was admissible, if it was made while the conspiracy
was pending, and in furtherance of the common design. Upon this point it is enough to say
that, at the time the declaration was made, they were engaged in carrying out what they had
previously agreed to do. They had agreed, not only to take the horses, etc., but to ride them
three or four days, to some place near the eastern part of the state, where they could safely
take the cars.
In Scott v. State, supra, the court said: The strongest argument for the plaintiff in error
against admitting as evidence against him the payment of double toll by West, is that the
payment was made after the larceny of the watch was, in legal contemplation, complete as to
West. * * * Conceding that the payment of the double toll was made after West had done
enough to authorize his conviction for the larceny of the watch, yet there is evidence which
conduces strongly to show that it was made while the conspiracy was pending, and in
furtherance of the common design.' The evidence justifies the conclusion that the conspiracy
between West and the plaintiff in error was not confined to the mere felonious taking and
carrying away of the watch, but extended to a division of the profits of the larceny at a
meeting to be held between them at another place as soon as convenient. Having given to
their conspiracy that extent, neither of them, when indicted, has the right to call upon the
court to diminish its extent for the purpose of relieving him from any of its consequences.
(See, also, State v. Grant, 76 Mo. 245; Miller v. Dayton, 57 Iowa, 429; State v. Brown, 7 Or.
207.)
The court did not err in admitting Hennessy's declaration.
5. After appellant had testified that he and Hennessy took the property merely for the
purpose of riding it three or four days to enable him to leave the state, but that they did not
intend to steal; that they expected Thomas would come and return the property to Gibbs; that
he told Brown they were getting away from trouble at Wells, etc., he was asked by his
attorney why it was he did not leave Wells on the train. The state objected to the question,
and appellant's attorney stated that, in connection with said question, he proposed to prove
that defendant had contracted a number of debts, aggregating a large sum of money; that he
had paid out all the money he had, and had nothing wherewith to pay the debts; that he had
been told and believed his creditors at Wells intended to attach and take away from him
every cent he could make;
19 Nev. 295, 310 (1886) State v. Ward
that he had been told and believed his creditors at Wells intended to attach and take away
from him every cent he could make; that he intended to go out of the state, and secure
employment, and thereby make sufficient money to pay the just claims against him; that he
did not believe he could ever pay his creditors if continually sued and harassed by them; that
he intended to leave on the east-bound train, but when the train arrived at Wells he saw the
constable and justice watching the train, and thought he would be arrested and brought back
as an absconding debtor, if he boarded the train; that he knew of several instances where
parties owing money had attempted to leave the state, and had been arrested and brought
back; that he concluded he could not safely leave Wells on the train, and he and Hennessy
agreed to get horses, and ride them to some point near the eastern border of the state, where
they could safely take the train and depart.
It is admitted that the reasons offered were no excuse for taking the property, but it is said
that since his defense was that he took it, not intending to steal it, but only to use it in getting
out of the state, he had the right to explain why he did not go away in the usual manner, on
the cars. A man may be guilty of larceny without intending to appropriate the property
permanently to his own use. Appellant was guilty if he intended, at the time of the taking, to
deprive the owner of it permanently. If the jury had believed that he was afraid of being
arrested and brought back, although from the proposed showing his fear was groundless, his
testimony would have shown why he went over the country on horseback instead of traveling
by rail; just as it would if he had said he did not go on the cars because he had no money to
buy a ticket, or because car-riding made him sick, or because he was afraid the cars would run
off the track; but whether in taking the horses, no matter why, he was guilty of larceny, would
still have depended upon whether he intended to deprive the owner of them permanently,
although he would not have taken them at all if he had not feared arrest; and in deciding upon
his intent the jury would have been obliged to judge from facts and circumstances outside of
the reason why he did not go by rail. A belief by the jury that he would have gone away on
the cars, and would not have taken the horses, if he had not feared arrest, would not have
tended to show that, since he could not go by rail, he did not intend to deprive the owner
permanently of his property and also to depart from the state.
19 Nev. 295, 311 (1886) State v. Ward
not intend to deprive the owner permanently of his property and also to depart from the state.
The record discloses no reversible error, and the order and judgment appealed from are
affirmed.
____________
[No. 1234.]
THE COUNTY OF WHITE PINE, Appellant, v. H. S.
HERRICK et al., Respondents.
AppealStatementEvidence to Support JudgmentPresumption.A judgment of the district court will not
be disturbed as being unsupported by the evidence when the statement fails to affirmatively show that it
contains all of the material evidence.
H. K. Mitchell, for Appellant:
This appeal is taken from a judgment of nonsuit entered upon defendants' motion. The
statement on appeal does not purport to contain all of the evidence adduced at the trial. This
court has repeatedly held that a judgment of the district court will not be disturbed as being
unsupported by the evidence when the statement fails to affirmatively show that it contains all
of the material evidence. (Sherwood v. Sissa, 5 Nev. 349; Bowker v. Goodwin, 7 Nev. 135;
Libby v. Dalton, 9 Nev. 23; Sherman v. Shaw, Id. 148; Mandlebaum v. Liebes, 17 Nev. 131;
Caples v. C. P. R. R. Co., 6 Nev. 265.) In the absence of such showing the court has
uniformly indulged the presumption that the facts necessary to sustain the ruling were
established at the trial. It results that the question of insufficiency of the evidence cannot be
reviewed.
The only subject remaining for examination is the judgment roll, in which no error appears
or is claimed. Judgment affirmed.
____________
19 Nev. 312, 312 (1886) State v. Blossom
[No. 1226.]
THE STATE OF NEVADA ex rel. H. HARRIS, Relator, v.
NOAH BLOSSOM, TREASURER OF DOUGLAS COUNTY, Respondent.
School TrusteesTitle to OfficeDe FactoDe Jure.If an office is filled, and the duties appertaining thereto
are performed, by an officer de jure, another person, although claiming the office under color of title,
cannot become an officer de facto.
T. Coffin, for Relator:
I. The rule that the acts of de facto officers are good and binding acts in law, so far as the
public and third parties are concerned, is well settled. The following authorities bear more or
less directly upon the facts and points of this case, to the effect that the peremptory writ of
mandamus ought to issue. (St. Luke's Church v. Mathews, 4 Dess. 578; 6 Am. Dec. 619; In re
Ah Lee, 6 Saw. 410; Mallett v. Uncle Sam, 1 Nev. 188; Meagher v. Storey Co., 5 Nev. 245;
State v. Curtis, 9 Nev. 325; Cocke v. Halsey, 16 Pet. 71; Wilcox v. Smith, 5 Wend. 232; 21
Am. Dec. 213; State v. Anderson, Coxe, N. J., 318; 1 Am. Dec. 207; Fowler v. Bebee, 9
Mass. 231; 6 Am. Dec. 62; Police Jury v. Haw, 2 La. 41; 20 Am. Dec. 294; Buckman v.
Ruggels, 15 Mass. 180; 8 Am. Dec. 98; Burke v. Elliott, 4 Ired. Law, 355; 42 Am. Dec. 142;
Bean v. Thompson, 19 N. H. 290; 49 Am. Dec. 154; Plymouth v. Painter, 17 Conn. 585; 44
Am. Dec. 580; Cooledge v. Brigham, 1 Allen, 333; Farmer's Bank v. Chester, 6 Humph. 58;
44 Am. Dec. 318; Schlencker v. Risley, 3 Scam. 483; 38 Am. Dec. 100; State v. Brennan, 25
Conn. 28; Trinity College v. Hartford, 32 Conn. 480; Sheehan's Case, 122 Mass. 445;
Petersilea v. Stone, 119 Mass. 465.)
II. Whoever is in office under color of right, and in the actual performance of the duties of
that office, is an officer de facto, notwithstanding what other claimants to the office may be
pretending or attempting to do. (State v. Carroll, 38 Conn. 449; Brown v. O'Connell, 36
Conn. 437; People v. Kane, 23 Wend. 414; People v. White, 24 Wend. 520; Carleton v.
People, 10 Mich. 250;
10 Mich. 250; Clarke v. Com. 29 Pa. St. 129; Com. v. McCombs, 56 Pa. St. 436; Taylor v.
Skrine, 3 Brev. 316; Cocke v. Halsey, 16 Pet. 71; Ex-parte Strang, 21 Ohio St. 618.)
III. I have been unable to find but three cases in which the record disclosed facts similar to
those in this case; that is where both a de jure and a de facto officer or board were attempting
to exercise the functions of the same office at the same time. These three cases support the
position of relator that the new board was such a de facto board that its acts were valid and
binding so far as the public and third parties were concerned. (People v. Staton, 73 N. C. 546;
Morton v. Lee, 28 Kan. 288; Ex-parte Norris, 8 S. C. 408.)
IV. There cannot be a de facto and de jure officer holding and exercising the functions of
the same office at the same time. (Cohn v. Beal, 61 Miss. 398; Boardman v. Halliday, 10
Paige, 223; McCahon v. Coms. 8 Kan. 441; Morgan v. Quackenbush, 22 Barb. 73.)
V. During the time there was a contest pending, the new board was the proper one to
remain in office and to exercise all of the duties appertaining to such board. (State v. Durkee,
12 Kan. 314; Braidy v. Theritt, 17 Kan. 471; People v. Draper, 24 Barb. 269.)
D. W. Virgin, District Attorney of Douglas County, for Respondent:
Summerfield was only an intruder, for he knew that Miss Davies had been employed by
the old board to teach the public school, and that, consequently, there was no vacancy in said
district, and that the new board had no right or authority, under the circumstances, to employ
him as a public school teacher. He was bound to know the law, and he did know the facts,
and so did relator when he purchased the warrants. And, in any event, Summerfield could not
receive his pay for teaching, from the county of Douglas, or any of its funds, for at least, he
was only a de facto school teacher, and not entitled to be paid by the county of Douglas.
(Meagher v. Storey Co., 5 Nev. 244; Stratton v. Oulton, 28 Cal. 44; Dorsey v. Smyth, 28 Cal.
21.)
Relator seeks to compel the payment of two certain warrants drawn by the auditor of
Douglas county upon respondent, as treasurer thereof, on account of salary of S. Summerfield
as teacher in school district No. 2, Douglas county, for the months of September and October,
1885; said warrants having been duly assigned to relator. In November, 1884, J. Q. Adams,
H. Vansickle, and J. S. Childs were elected school trustees of said district for the term of two
years. In March, 1885, the legislature passed an act providing for the election of new school
boards in all the school districts of the state, on the second Saturday in May following, and
also that the new trustees should assume the duties of their office on the first day of
September, 1885.
Under the statute named, M. Harris and two other persons were elected trustees, and they
thereafter qualified according to law. But one public school was required in said district, and
on the fifteenth day of August, 1885, the old board held a public meeting, and employed a
sufficient number of competent teachers for the ensuing school year, and M. Harris, one of
the new trustees, was present at such meeting. Under the statute the school year commenced
September 1, but it was the custom throughout the state to open schools on the first Monday
in September, which, in 1885, was on the seventh day of the month. On the first day of
September the new board took forcible possession of the only public school building in said
district, against the protest of the old board, and installed therein as teacher the said
Summerfield, who was cognizant of the fact that other teachers had been employed by the old
board. On the seventh of September, and for a long time thereafter, the new board held
forcible possession of said school building. On the morning of the seventh the old board went
to the school house, and demanded the possession thereof for the purpose of commencing the
school with the teachers employed by them. Possession was refused, and they then engaged
another building in the district, and placed therein their said teachers, where they continued to
maintain the public school, until, subsequently, the public school building was given up to
them. Summerfield taught his school during the months of September and October. On the
tenth of September, 1885, proceedings were instituted in this court, by the
attorney-general, to determine which of the two contending boards was entitled to
perform the duties of school trustees.
were instituted in this court, by the attorney-general, to determine which of the two
contending boards was entitled to perform the duties of school trustees. On the seventh of
November we decided that the second section of the statute approved March 12, 1885, under
which the members of the new board were elected, was unconstitutional, and that Adams,
Vansickle and Childs, constituting the old board, were the lawful trustees. State v. Harris,
ante 222. The new board did not at any time discharge the teachers employed by the old
board, or notify them to discontinue their schools.
The principle ground urged by relator in support of his petition, is that Harris and others
were the de facto board, and that their acts, as such, were good and binding in law as to the
public and third parties. The general principle stated by counsel for relator, that, as to the
public and third parties, the acts of de facto officers are binding, is well settled and admitted.
But, applying it fully to the present case, is relator entitled to the writ sought? From the
admitted facts, can it be said that M. Harris and his associates constituted the de facto board?
There were two boards, each claiming that the other was unlawful; each urging and
maintaining the validity of its own acts; each proceeding as though the other did not exist, in
the matter of employing teachers, etc. The old board denied by word and acts that M. Harris
and others were trustees, and continued to perform all the duties of such officers as though
the statute of 1885 had not been passed, or the new board been elected. If M. Harris and his
associates had not acted or pretended to act, it cannot be denied that the old board would have
been trustees de jure and de facto. If the old was not the de facto board, it is not because it
failed to exercise all the functions of a legal board, but it is because the new board did the
same, and, while so acting, the statute under which they were elected had not been declared
unconstitutional by any competent tribunal.
It is undoubtedly true, as claimed by counsel for relator, that the new trustees would have
become a de facto board if the old ones had not acted as such; but since they did act as above
stated, were they not the de facto board? Two physical bodies cannot occupy the same space
at the same time, and two persons cannot be officers de facto for the same office at the same
time. If an office is filled, and the duties appertaining thereto are performed, by an officer de
jure, another person, although claiming the office under color of title, cannot become an
officer de facto.
are performed, by an officer de jure, another person, although claiming the office under color
of title, cannot become an officer de facto. (McCahon v. Commissioners, etc., 8 Kan. 441;
Boardman v. Halliday, 10 Paige, 232; Morgan v. Quackenbush, 22 Barb. 80; Cohn v. Beal,
61 Miss. 399.)
The supreme court of Kansas has gone so far as to hold that a justice of the peace who
refused to give up his office to his legally elected and qualified successor was the de facto
justice, although, upon the latter's refusal to deliver up the office, the de jure justice obtained
a new docket, and commenced also to act as a justice of the peace, and acted in such capacity
until the trial in the quo warranto proceedings. (State v. Buckland, 23 Kan. 259; Morton v.
Lee, 28 Kan. 286.) If the last case is good law, and as to that we express no opinion, it would
sustain us in holding that the old was the de facto board, even though Mr. Harris and his
associates had constituted the de jure board.
Counsel for relator refers us to State v. Carroll, 38 Conn. 449, wherein it was held that a
justice of the peace, temporarily holding a city court, under a law alleged to be
unconstitutional, was at least, under the circumstances of that case, an officer de facto, if not
de jure, and judgments rendered by him were valid. An officer de facto, said the court, is
one whose acts, though not those of a lawful officer, the law, upon principles of policy and
justice, will hold valid, so far as they involve the interests of the public and third persons,
where the duties of the office were exercised, * * * under color of an election or appointment
by or pursuant to a public unconstitutional law, before the same is adjudged to be such.
Applying the doctrine announced to the facts of the case then under consideration, the court
held that a justice of the peace of the town New Haven, who, in the absence of the city judge
of the city of New Haven, acted as judge of said city court, according to the provisions of a
statute in force, which had not been declared unconstitutional by any competent court, was a
de facto officer, even though the statute was in fact unconstitutional. That decision has been
quoted with approval by all courts, so far as we know. It certainly meets with our
approbation, and it would sustain the claim of relator if the facts were that the old board
failed to exercise the functions of trustees, and the new one performed them.
The case of People v. Staton, 73 N. C. 546, is also referred to and relied on by relator.
and relied on by relator. In the report of the case there is an agreed statement of facts, but it is
also stated that the case agreed sets out many other facts not pertinent to the case as decided
in this court, and the same are therefore omitted. All other facts necessary to an understanding
of the case, as decided, are stated in the opinion of the court. There was a vacancy in the
office of superior court clerk, and, under the constitution, it was the duty of the judge of the
superior court to fill the vacancy. Judge Moore had been the judge for several years, but, the
general assembly being of the opinion that his term had expired, an act was passed ordering
an election. Under that act, says the court, Judge Hilliard was elected, and qualified, and
took possession of the office, and held it, exercising all the duties and business of the office,
until he was ousted under a decision of this court declaring the act under which he was
elected unconstitutional. So it is now clear that, for all the time from his election,
qualification, and induction into office until he was ousted under the decision of this court,
Judge Hilliard was not the rightful judge, but he was the judge in fact. Indeed, it seems to
have been taken for granted that Judge Hilliard was the de facto officer. It appears that Judge
Moore claimed the office, but it is not shown that he performed any of the duties incident
thereto, except that he appointed Norfleet clerk, two days after Staton had been appointed by
Hilliard, and that on the first day of the first term after Hilliard's election, when Hilliard had
taken the seat usually occupied by the presiding judge, he demanded of Hilliard the seat as
judge, which demand Hilliard refused; whereupon Judge Moore declared the court open for
the transaction of business, and directed the sheriff to make proclamation. This the sheriff
declined to do. The principal claim of the relator was that, since Hilliard was a de facto
officer only, his appointee was merely a clerk de facto; but the court held that the
appointments, like the judgments, of the de facto judge, had the same validity as though he
had been judge de jure and de facto.
In State v. Harris, ante, 222, we did not decide whether one board or the other was the de
facto board. The only question there presented was, which was the de jure board? We said a
judgment of ouster must be entered against M. Harris and others, because their election was
invalid, and, under claim of right to the offices in question, they had exercised some of the
functions of trustees, although the legal board had refused to give up their offices, and
had continued to perform all the duties thereof.
right to the offices in question, they had exercised some of the functions of trustees, although
the legal board had refused to give up their offices, and had continued to perform all the
duties thereof. Writ denied.
____________
19 Nev. 319, 319 (1886)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
APRIL TERM, 1886.
____________
19 Nev. 319, 319 (1886) State v. Cardelli
[No. 1231.]
THE STATE OF NEVADA, Respondent, v. JOHN
CARDELLI, Appellant.
Criminal LawCorpus DelictiEvidenceDirect or Circumstantial.A person charged with a criminal
offense is not called upon to answer the charge without satisfactory proof, upon the part of the
prosecution, of the corpus delicti; yet it is not essential, in all cases, that there should be any direct
evidence upon this point. The corpus delicti may be established by circumstantial evidence.
IdemLarceny of CattleBrands and MarksIdentificationProof of Ownership.The identification and
ownership of cattle may be proved by the brands and marks on the hides therefrom. Whether the evidence
upon this point, in any given case, is sufficient as to the ownership of the cattle, is a question of fact to be
determined by the jury.
IdemSufficiency of Evidence.Held, that the evidence in this case was sufficient to authorize the jury to
consider and pass upon the question of ownership of the cattle stolen by defendant.
IdemPresumptions from Established Facts.There must be some evidence to raise a presumption; but when
one thing is established beyond a reasonable doubt, which to the same extent convinces the understanding
that another must have happened, it is legitimate to presume it did happen.
Brands and MarksStatute Construed.The act to regulate marks and brands of stock (Gen. Stat. 757-767),
which provides that no mark, brand, or counter-brand shall be considered as lawful, if not recorded as
specified in this act, has no application to the use of such mark or brand in the identification of cattle as
evidence in a criminal prosecution for larceny.
LarcenyDemand of Payment for Stolen Goods.Neither the guilt nor innocence of the defendant, the
ownership of the cattle, or credibility of the witnesses, depended in any manner upon the question
whether the owners of the cattle stolen had demanded payment, or possession of the cattle, from the
persons who had innocently purchased and paid for them from the defendant.
InstructionsNeed Not be Repeated.The ruling of the court, in refusing certain instructions, is sustained,
upon the ground that the points embodied therein had been clearly given in other instructions.
W. E. F. Deal, for Appellant:
I. The court erred in instructing the jury that what was said in relation to the brands and
marks of Vail Bros. not being recorded, was immaterial in this case. Until the act of 1885 was
passed, the evidence in this case to show that Vail Bros. were the owners of these cattle was
not even prima facie evidence of ownership, much less proof beyond any reasonable doubt,
as was necessary to authorize defendant's conviction. (Comp. L. 3990; Stat. 1885, 44; Hutto
v. State, 7 Tex. App. 44; Fisher v. State, 4 Tex. App. 181; Wolf v. State, 4 Tex. App. 332;
Poage v. State, 43 Tex. 454; Herber v. State, 7 Tex. 69.)
II. The court erred in instructing the jury that the fact that Vail Bros. had not demanded of
Mr. Hancock the cattle sold by defendant to him, and that they had not demanded of Zeigler
Bros. payment for the cattle described in the indictment did not affect the case at all. The
instruction was a clear violation of section 12, article 6, of the constitution of the state. The
court told the jury what weight they should give the testimony. (Battersby v. Abbott, 9 Cal.
565; People v. Ybarra, 17 Cal. 166; State v. Millain, 3 Nev. 447; Buckley v. Buckley, 9 Nev.
373.)
III. There was no proof of the corpus delicti. It is essential in order to convict in a case of
larceny that proof be made beyond a reasonable doubt; that something has been stolen. There
is no proof in this case that Vail Bros. lost any cattle of the J. C. brand, or that any was stolen
from them. (3 Green. Ev. Sec. 161; May v. People, 92 Ill. 343; State v. McGowan, 1 S. C. 14;
Burton v. Marsh, 6 Jones, N. C., 409; Bish. Cr. Pro., Sec. 1071, and note; People v. Williams,
57 Cal. 108; Robinson v. State, 5 Tex. App. 519; People v. Carabin, 14 Cal. 438; Reg. v.
Dredge, 1 Cox., C. C., 235; 2 Hale, P. C., 290; Stark. Ev. 758; 1 Best. Ev., Sec. 441; Tyner v.
State, 5 Humph. 383; Phillips v. State, 29 Ga. 108; State v. Davidson, 30 Vt. 385; State v.
Moon, 41 Wis. 684; People v. Gordon, 40 Mich. 720.)
W. H. Davenport, Attorney-General, and J. A. Stephens, District Attorney of Storey
County, for Respondent:
I. The court did not err in any of its rulings upon the instructions given and refused.
II. There was ample proof of the corpus delicti. In addition to the direct testimony as to
marks and brands, there was a vast amount of circumstantial evidence from which ownership
in the Vail Bros. might be inferred. The corpus delicti, as well as any other fact, may be
established by circumstantial evidence. (3 Greenl. Ev. Sec. 30; State v. Watkins, 11 Nev. 36;
State v. Loveless, 17 Id. 427; Williams v. State, 60 Ala. 401.) There was, at least, some
testimony that the Vail Bros. owned the cattle; the sufficiency of this testimony was a
question solely for the jury, and we submit that under the law the judgment should be
affirmed. (1 Comp. L. 2000; State v. McGinnis, 6 Nev. 109; State v. Crozier, 12 Id. 304;
State v. Ah Chew, 14 Id. 79.)
Appellant was convicted of the crime of grand larceny for feloniously taking three steers
and two young cows, (commonly called heifers,) all of which cattle were branded with the
letters J. C. on the left hip, and marked with crop and split in the left ear, * * * the property of
Hugh Vail and John R. Vail, partners, doing business under the firm name of Vail Bros."
Bros. He claims that the evidence upon which he was convicted is insufficient in law to
sustain the verdict in this; that there is no direct testimony, or other competent proof of the
corpus delicti. The contention urged relates exclusively to the testimony submitted on the part
of the prosecution as to the ownership of the cattle.
On the twenty-second of June, 1884, the Vail Bros. purchased of John Carlin, the Carlin
ranch consisting of four thousand five hundred acres of inclosed land, with a cattle range on
the public lands of twenty-five miles each way, and a band of cattle, everything that Carlin
owned. The cattle were at that time grazing on the range, and were not counted until several
months after the purchase. The greater portion (over one thousand head) of these cattle were
branded and marked as specified in the indictment. The range over which these cattle roamed
extends to the Cardelli ranch, and the Cooney ranch, owned by the Cardelli Bros., and some
of the cattle were often seen in that vicinity. In the latter part of January, 1885, appellant
called at the butcher shop of Zeigler Bros. in Virginia City, and inquired if they wished to buy
any cattle. John Zeigler said he would look at the cattle first. A few days thereafter he went to
the Cardelli ranch, and from thence, in company with appellant, to the Cooney ranch, where
five head of cattle were found in a barn. Appellant said he kept them in the barn because he
was afraid of them breaking the fence. These five head of cattle, three steers and two heifers,
were purchased by Zeigler Bros., and delivered to them by appellant at their slaughter-house,
on American Flat, on the fifth of February. Either before or after the sale, appellant stated to
Zeigler Bros. that he did not want his brother (Orlando) to know that he was selling any
cattle. A few weeks after the cattle were slaughtered he said to Charles Zeigler that he wanted
a sack to go out to the slaughter-house and cut the brands out of the hides.
March 1, Vail Bros. caused a notice to be published in the Daily Territorial Enterprise, at
Virginia City, offering a reward for the arrest and conviction of any person guilty of stealing
any of their cattle. About the fifteenth of March, Hugh Vail, having received information
about the sale of the cattle, went to Virginia City, examined the hides taken from the five
head of cattle, and identified them as hides of the cattle which Vail Bros. bought from
Carlin.
Bros. bought from Carlin. He testified positively, as did several other witnesses, that the cattle
from which the hides were taken belonged to Vail Bros. He frankly acknowledged, however,
that he had no means of identifying them except by the brands and ear-marks. There was no
other direct proof as to the loss of these cattle by Vail Bros. There was testimony to the effect
that men engaged in the cattle business could always identify their cattle by brands and
marks; that it is an easy matter to distinguish the Carlin cattle from any other cattle in that
range; that there is no difficulty in distinguishing the Carlin cattle from the Cardelli cattle by
the brands and ear-marks; that the brand of the Cardelli Bros. was O. C.; that the experience
of men who have for many years been engaged in this business is that brands of the same
letters, owned by different persons, are not exactly alike; that the five hides examined by
the witnesses belonged to cattle formerly owned by John Carlin; that Carlin always vented
his cattle when sold, except when sold to be slaughtered; that the branding-iron in the
possession of Cardelli Bros. with the letters J. C. was different for Carlin's brand; that the
Carlin brand is a plain J. C., without any indention in the iron; that the Cardelli brand has
an indentation stroke on the top; that one has the letters joined together, and the other the
letters are separate; that it is easy to distinguish one brand from the other; that appellant, in
December, 1884, sold four steers to William Hancock; that one of these was butchered, and
the other three were alive at the time of the trial; that the living steers were by John R. Vail
and others recognized and identified by the brands and marks as the cattle of Vail Bros.; that
the age of the cattle purchased by Zeigler Bros. was, of the heifers, about two years, and of
the steers about three years. This is substantially the testimony upon the part of the
prosecution.
The testimony upon the part of the defense tended to show that in 1881 the Cardelli Bros.
had a brand made with the letters J. C.; that in June of that year appellant and his brother,
Fancredi, branded eleven calves (steers) and one heifer, and turned them out to roam at large
upon the public lands; that these cattle had been seen at different times; that appellant, in the
fall of 1884, made public search and inquiry for these cattle; and his defense was that the
cattle sold to Zeigler and Hancock were the same cattle as branded by him and his brother
in 1SS1;
cock were the same cattle as branded by him and his brother in 1881; and that they were the
true owners, or, at least, that appellant acted in good faith, believing them to be the cattle of
Cardelli Bros. The testimony upon the part of the defense was in conflict with the testimony
of the prosecution as to the venting of the cattle, when sold, by Carlin; the character and
identity of brands and marks; and in other particulars.
1. Is this testimony sufficient to establish the corpus delicti? Every criminal charge
necessarily involves two distinct propositions: (1) That a criminal act has been committed; (2)
that the guilt of such act attaches to the particular person charged with the commission of the
offense. In cases of larceny it is, of course, essential for the prosecution to prove that the
property was feloniously taken from the person named in the indictment as the owner. It
must appear that the goods were stolen from the prosecutor; and if he, being a witness, cannot
swear to the loss of the articles alleged to have been stolen from him, the prisoner must be
acquitted. (3 Greenl. Ev., Sec. 161.)
In what manner may this proof be made? Must it always be direct and positive? Is it
absolutely essential, in all cases, that the proof of the corpus delicti should be first established
independent of the other elements of the offense? While it is true that a person charged with
the commission of a criminal offense is not called upon to answer the charge without
satisfactory proof, upon the part of the prosecution, of the corpus delicti, yet it is not
essential, in all cases, that there should be any direct evidence upon this point.
In addition to Greenleaf on Evidence, above quoted, appellant cites several authorities
where, under the particular state of the testimony, it has been held that circumstantial
evidence of the offense could not be accepted as satisfactory in law, unless, besides this,
there is direct evidence of the corpus delicti. Many of the cases are referred to in a note to
section 1071, 1 Bish. Crim. Prac. Some of them are cases like People v. Williams, 57 Cal.
108, where no evidence of any kind was offered upon that point. Bishop, after citing the cases
relied upon by appellant, concludes the section by saying. If we look at the matter as one of
legal principle, we can hardly fail to be convinced that while the corpus delicti is a part of the
case which should always receive careful attention, and no man should be convicted until it is
in some way made clear that a crime has been committed, yet there can be no one kind of
evidence to be always demanded in proof of this fact any more than of any other.
been committed, yet there can be no one kind of evidence to be always demanded in proof of
this fact any more than of any other. If the defendant should not be convicted when there has
been no crime, so equally should he not be when he has not committed the crime, though
somebody has; the one proposition is as important to be maintained as the other, yet neither
should be put forward to exclude evidence which in reason ought to be convincing to the
understanding of the jury.
In State v. Keeler, the court said: Now, the rule should be adhered to, with the utmost and
strictest tenacity, that the facts forming the basis of the offense, or corpus delicti, must be
proved either by direct testimony, or by presumptive evidence of the most cogent or
irresistible kind. In one of these methods the essential fact or facts must be established
beyond a reasonable doubt. But if thus established, or if the jury can be and are satisfied of
such facts beyond this reasonable doubt, it matters not whether they are conducted to this
result by direct or presumptive evidence. In other words, while the proof should be clear and
distinct, it is not necessary that it should be direct and positive; for while that which is direct
might be more satisfactory, less liable to deceive and mislead, this goes to its weight or effect,
and by no means establishes that in no other way can the essential facts be shown with the
requisite distinctness and clearness. (28 Iowa, 553.)
The fact that the corpus delicti may be established by circumstantial evidence is well
settled. (3 Greenl. Ev. Secs. 30, 31; Burrill, Cr. Ev. 680, 734; Wills, Cr. Ev. 201; Reg. v.
Burton, Dears. Cr. Cas. 282; Rex v. Burdett, 4 Barn. & Ald. 122; McCullough v. State, 48
Ind. 112; Brown v. State, 1 Tex. App. 155; Roberts v. State, 61 Ala. 401; State v. Ah Chuey,
14 Nev. 92; State v. Loveless, 17 Nev. 427, and authorities there cited.) In several of these
cases convictions were sustained upon testimony of the corpus delicti which was not any
stronger, or more satisfactory, than the testimony given in this case.
The general principles announced by Sir William Scott, in Evans v. Evans, 1 Hagg. 105,
that if you have a criminal fact ascertained, you may then take presumptive proof to show
who did it; and Lord Hale's remarks, in 2 Hale, P. C. 200, that he would never convict any
person for the stealing of goods cujusdam ignoti, merely because he would not give an
account of how he came by them, unless there was due proof made that a felony was
committed of these goods," might be correct in all cases where the proof of the crime is
separable from the proofs which furnish a clue to the perpetrator of the crime;
a felony was committed of these goods, might be correct in all cases where the proof of the
crime is separable from the proofs which furnish a clue to the perpetrator of the crime; but
the general principle which they lay down must be taken with considerable limitation, and, in
order to treat the subject with accuracy, it is to be remarked that in some offenses the
evidence establishing the existence of the crime also indicates the criminal, while in others
the traces or effects of the crime are visible, leaving the author of it undetermined. (Best,
Pres. Sec. 201.)
Applying the principles of law as above announced to the facts of this case, can the
position contended for by appellant's counsel be maintained? Was there no evidence for the
jury to consider and pass upon? It is true that there was no direct or positive evidence as to
the loss of the cattle by Vail Bros. independent of the fact of their identification by the brands
and marks found on the hides; but we have shown that this was not essential. Was there any
testimony as to the loss of these cattle?
The owners of a few head of stock, kept within an inclosure, would be likely to know
when any were missing, and might be able to positively swear to the loss of their cattle; while
stockowners, with large herds of cattle roaming over extensive ranges, might not be able to
swear positively how many, if any, were lost, until all were gathered into a corral and
counted. Some die, others stray away, and, as a general rule, the fact that any are stolen can
only be established, if the thief is not caught in the act of driving them away, by testimony of
similar character to that offered in this case.
It would be difficult, if not impossible, in many cases, to establish the identity, ownership,
and loss of cattle in a more direct or satisfactory manner than appears from the testimony in
the record of this case. If the hides had not been preserved and identified, the Vail Bros. could
not have testified to the loss of these particular cattle; but with this proof of identity, taken in
connection with the other facts, is it not made clear to the ordinary mind that proof was
offered of the loss of the five head of cattle? It is true that neither juries nor courts should
presume a fact without proof. There must be some evidence to raise a presumption; but when
one thing is established, beyond a reasonable doubt, which, to the same extent, convinces the
understanding that another must have happened, have we no right to presume it did
happen?
understanding that another must have happened, have we no right to presume it did happen?
With the identification of the hides having the brands and marks of Carlin, does it not follow,
if neither Carlin nor Vail Bros. had sold or otherwise disposed of them to other parties, and
no one else had used the same brand and marks, that these identical cattle must have been
taken from the possession of Vail Bros.? Was there not ample testimony of the corpus
delicti?
The testimony which tended to show that these cattle did not belong to Cardelli, or his
brothers, was, in our opinion, calculated to strengthen the evidence tending to show that they
belonged to the Vail Bros. Appellant claimed to have raised these particular cattle, and to
have branded them with the letters J. C. in June, 1881, when they were calves. Was this
testimony true? Was not this a question of fact for the jury to decide? Was it not the duty of
the jury in determining this question to consider the testimony as to the age of the cattle, as to
the difference of the branding irons used by the respective parties, in connection with other
facts? If the jury disbelieved the testimony of the defense upon these points, would it not
legitimately tend to strengthen the evidence of identity and ownership of these cattle by Vail
Bros., offered upon the part of the prosecution? Many of the criminative circumstances
tending to prove that the cattle were stolen by appellant necessarily tended to show that they
were the property of Vail Bros. It was the duty of the jury to consider such circumstances, in
connection with the fact that the hides were identified by the marks and brands as having
been taken from cattle owned by Vail Bros.
If Vail Bros. had counted their cattle a week before any were stolen, and found just one
thousand head branded J. C., and a week thereafter had again gathered them in and found but
nine hundred and ninety-five, they could have sworn positively that five head were missing at
the time of the second count; but they could not have sworn whether they had died, strayed
away, or been stolen, unless the bodies, or hides taken therefrom, had been found and
identified. There are many ways of identifying stock. A milch cow, pet calf, work oxen, or
cattle of some particular breed, might be readily recognized and identified by their color or
general appearance; but large herds of ordinary cattle could not, as a general rule, be
identified in such manner, and in cases of this kind the proof would certainly be as
satisfactory if the cattle were identified by the brands and marks.
and in cases of this kind the proof would certainly be as satisfactory if the cattle were
identified by the brands and marks. The object in branding and marking cattle, as was well
stated by the district court in its instructions, is for the purpose of identification; that their
ownership may be known and distinguished from other stock; that it may be known to whom
the particular cattle belong. That stock may be identified in this manner, unless prohibited by
a positive statute, is beyond dispute. Whether the testimony offered upon this point, in any
given case, is sufficient to convince the mind, beyond a reasonable doubt, as to the ownership
of the property, is a question of fact to be determined by the jury.
Hereafter, all controversies upon this point will be avoided; for the legislature, since the
offense charged against appellant was committed, recognizing the difficulty that cattle men in
this state might have in identifying and proving ownership of their stock; and for the purpose
of removing all doubts as to the admission of this kind of evidence, passed an act to regulate
proceedings in certain criminal cases; which, among other things, provides that, upon the
trial of any public offense which concerns any neat cattle, horse, mule, or other animal
running at large upon any range in this state, the brand and other marks upon such animal
shall be prima facie evidence of ownership. (Gen. Stat. 4561.)
2. Section 9 of the act to regulate marks and brands of stock, approved February 27,
1873, (Gen. Stat. 757-767,) provides that no mark, brand, or counter-brand shall be
considered as lawful if not recorded as specified in this act. Neither Carlin, Vail Bros., nor
appellant had their marks and brands recorded as required by this act. Appellant contends
that, under the provisions of section 9, the use by Vail Bros. of the marks and brands in
question was unlawful; that the proof of their ownership of the cattle by such marks and
brands was insufficient to establish even prima facie evidence of ownership. No objection
was made in the court below to the admission of oral testimony to prove the marks and
brands of the Vail Bros., and the only question in relation to this statute, which can be
reviewed by this court, is whether or not the court erred in giving the following instruction:
Considerable has been said in relation to the brands and marks of Vail Bros. not being
recorded. I simply state that that is immaterial in this case.
That question is out of the case entirely, for the reason that the object of the law in requiring
cattlemen to record their brands is simply to give notice to other persons. If a person
feloniously takes cattle, it is wholly immaterial whether the brands are recorded or not.
We are of the opinion that the act referred to has no application to the facts of this case.
The testimony was clear and positive that Carlin had, for years prior to the sale of his cattle to
Vail Bros., used the marks and brands in question. If it should be conceded that, under the
provisions of section 9, it was unlawful for Carlin or the Vail Bros. to use these marks and
brands without having them recorded, still the fact remains that they did use them; and there
is no provision in the statute which prohibits them, in a case like this, from identifying their
cattle by such marks and brands, and having such identity considered as testimony tending to
prove their ownership.
The authorities cited by appellant from Texas must be construed with special reference to
the statute of that state, which provides that no brands, except such as are recorded by the
officers named in this act, shall be recognized in law as any evidence of ownership of the
cattle, horses, or mules upon which the same may be used. (1 Pasch. Dig. art. 4659.) Under
this provision, the courts of that state have decided that oral testimony of the brands was not
permissible as evidence of ownership; but was admissible, in connection with other evidence,
for the purpose of identifying the cattle. (Hutto v. State, 7 Tex. App. 47, and authorities there
cited.) It has also been held in that state, notwithstanding the provisions of the statute
requiring the marks as well as the brands to be recorded, that the unrecorded marks were
competent evidence to prove the ownership of animals alleged to have been stolen, because
the prohibition in the sections we have quoted is confined to brands alone. (Johnson v. State,
1 Tex. App. 345.) These authorities, instead of being opposed to the views we have
expressed, fully sustain the conclusion we have reached, that the statute of 1873 has no
application to this case. (See, also, Dixon v. State, 19 Tex. 134; Poage v. State, 43 Tex. 455;
Kelly v. State, 1 Tex. App. 634; State v. King, 84 N. C. 737.)
Suppose the court did err in stating that the object of the statute, in requiring cattlemen to
record their marks and brands, is simply to give notice to other persons, how could such an
error, upon an immaterial point, prejudice appellant?
is simply to give notice to other persons, how could such an error, upon an immaterial point,
prejudice appellant? The court correctly stated one of the objects which the legislature had in
view in passing the statute; but it need not have stated any of the objects of the law. If the
statute was inapplicable, the court was not called upon to construe it. It may, therefore, and it
will, be admitted that in civil cases, between stock owners having the same brands and marks,
where one party has his brands and marks recorded, and the other not, or in other civil cases
requiring a construction of the entire statute, it might be a material error for the court to limit
the objects of the statute to the one stated in the instruction; but in the case at bar it was
wholly immaterial. The only purpose and effect of the instruction was to call the attention of
the jury to the fact that the statute in question had no application, and that the question
whether Vail Bros. had their brands and marks recorded was immaterial in this case. To this
extent the instruction was correct. The fact that the reason given for the conclusion reached
was incorrect was a harmless and immaterial error, which could not possibly have misled the
jury, or in any manner prejudiced appellant.
3. It is next claimed that the court erred in giving this instruction: There is another
question. The Vail Bros. have not demanded of Mr. Hancock the cattle sold by defendant to
him, and they have not demanded of Zeigler Bros. payment for the cattle sold by defendant to
them. These are matters resting entirely with the Vail Bros., as it is their own business, and
does not affect the case at all. They are claims optional with them whether they will enforce
or waive.
There is no valid objection to this instruction. It stated the law correctly. Neither the guilt
nor innocence of the defendant, the ownership of the cattle, or credibility of the witnesses,
depended in any manner upon the question whether Vail Bros. had demanded payment or
possession of the cattle from the person who had innocently purchased and paid for them
from the defendant.
4. The court did not err in refusing to give the instructions A, B, and C, requested by
appellant, as it had, of its own motion, given clear, concise, comprehensive, and correct
instructions, covering all the points embodied therein.
____________
19 Nev. 331, 331 (1886) Robinson v. Benson
[No. 1233.]
CHARLES ROBINSON, Appellant, v. ANDREW BENSON,
Respondent.
New TrialNotice of Intention.In a case tried without a jury, the decision of the court is distinct from the
findings, and the time within which notice of intention to move for a new trial must be given, begins to
run from the announcement of the judgment.
IdemStatementWhen It Must be Disregarded.When the statement on motion for a new trial has not been
served or filed within the time required by statute, or within the time specified by stipulation, it must be
disregarded.
Statement on Motion for New Trial Not Effective as Statement on Appeal.A statement which has been
prepared exclusively as a statement on motion for a new trial, cannot be considered as a statement on
appeal from the judgment.
H. K. Mitchell, for Appellant.
This cause was tried before the court without a jury. The opinion of the court ordering
judgment in favor of defendant, Benson, was filed April 11, 1885. Notice of the filing of this
opinion was served upon plaintiff's attorney the same day. On the eighteenth day of April
plaintiff served and filed notice of motion for a new trial. On the same day a stipulation was
filed giving plaintiff ten days after the statutory time to file and serve his statement on motion
for new trial. On the eighth of May the court filed its findings of fact and conclusions of law,
and the judgment in favor of defendant was thereupon regularly entered. No written notice of
the findings was given to plaintiff's attorney. Thereafter, on the eighteenth of May, 1885,
plaintiff served and filed another notice of motion for a new trial, and on the same day served
and filed a statement on motion for a new trial. This appeal is taken from the judgment, and
from an order of the district court denying a new trial.
19 Nev. 331, 332 (1886) Robinson v. Benson
Was the statement on motion for a new trial filed and served within the time required by
statute? In Elder v. Frevert, it was held that the decision of the court was distinct from the
findings, and that the time within which notice of intention to move for a new trial must be
given begins to run from the announcement of the judgment. (18 Nev. 283.) The second
notice of motion for a new trial was not given within ten days after receiving written notice
of the rendering of the decision of the judge, (Civ. Pr. Act, Sec. 197; Gen. Stat. 3219;) hence
no rights whatever were acquired thereby. It therefore follows that the statement on motion
for a new trial, not having been served or filed within the time required by statute, or within
the time specified in the stipulation, must be disregarded.
Defendant, having made this objection at the time of proposing amendments to the
statement, did not waive his right to make the same objection in this court. (Hayne, New
Trial, Sec. 146, p. 409.) The statement, having been prepared exclusively as a statement on
motion for a new trial, cannot be considered as a statement on appeal from the judgment.
(Williams v. Rice, 13 Nev. 234; Nesbitt v. Chisholm, 16 Nev. 40.)
There is no error in the judgment roll.
____________
19 Nev. 332, 332 (1886) State v. Atherton
[No. 1236.]
THE STATE OF NEVADA ex rel. TRENMOR COFFIN, Relator, v. C. C. ATHERTON, et
al., COUNTY COMMISSIONERS OF ORMSBY COUNTY, Respondents.
Constitutional LawStatute 1885, 60One Judicial District.The act to redistrict the state (Stat. 1885, 60), so
as to make but one judicial district, is constitutional.
IdemTitle of ActOne Subject.The title of the act, An act to redistrict the state of Nevada, prescribe the
number and salaries of district judges, and fix the places of holding courts, does not contravene section
17 of article 4 of the constitution. It embraces but one subject, and matter properly connected
therewith.
IdemPowers, Duties, and Functions of Judges.Section 4, giving the judges equal jurisdiction and power,
authorizing them to hold court in any county, and to exercise the powers, duties, and functions of the
court and of judges in chambers, and to transact judicial business in the same county,
at the same time, does not give the judges at chambers the powers, duties, and
functions of a court, nor invest them with any other power than is presently
possessed by the district judges under the constitution.
of judges in chambers, and to transact judicial business in the same county, at the same time, does not
give the judges at chambers the powers, duties, and functions of a court, nor invest them with any other
power than is presently possessed by the district judges under the constitution.
Non-Judicial DaysNot Abolished.Section 5, providing that the district court shall always be open for the
transaction of business, does not abolish the existing non-judicial days, and even if it did, would not
be beyond the powers of the legislature.
Judges' SalariesPayment of.It is not in contravention of section 15, article 6, of the constitution, to
provide that the judges' salaries shall be paid quarterly out of the county treasuries into the state treasury,
and by the state treasurer paid to the judges in monthly installments.
IdemNecessary Traveling ExpensesNot Fees.The prohibition contained in section 10, article 6, of the
constitution, against the judges receiving to their own use any fees or perquisites of office, does not
apply to the necessary expenses actually paid by them, for traveling by public conveyance, in going to
and from the place of holding court.
Selection of Presiding Judge.The authority given to the judges by section 9 of the act, to select one of their
number for presiding judge, does not contravene any provision of the constitution. The judges, without
any statutory authority, could select one of their number for presiding judge.
Times of Holding Courts.The provision in section 9 that the courts shall be held in each county at least once in
every six months, is a compliance with section 7, article 6, of the constitution, which declares that
the times of holding the * * * district courts shall be fixed by law.
J. H. MacMillan, S. D. King, Thomas Wells, H. F. Bartine and Trenmor Coffin, for
Relator:
I. The act of 1885 is unconstitutional and void by reason of its title not complying with the
requirements of section 17, article 4 of the constitution. (State v. Silver, 9 Nev. 227; State v.
Ah Sam, 15 Nev. 30; Sun Mutual Ins. Co. v. The Mayor, 4 Sel. 253; City of San Antonio v.
Gould, 34 Tex. 49; Giddings v. City of San Antonio, 47 Tex. 548; Durkee v. Janesville 26
Wis. 697; City of Tecumseh v. Phillips, 5 Neb. 305; White v. City of Lincoln, 5 Neb. 505;
People v. Mahany, 13 Mich. 494; People v. Hill 35 N. Y. 449; People v. O'Brien, 38 N. Y.
193; Matter of Van Antwerp, 56 N. Y. 261; Boyd v. State, 53 Ala. 601; People v. Institution,
71 Ill. 229; Ex-parte Connor, 51 Ga. 571; People v. Brooklyn, 13 Abb. Pr., N. S., 121; People
v. Com., 53 Barb. 70; Martin v. Broach, 6 Ga. 21; Board of Ed. v. Barlow, 49 Ga. 241;
241; Mewherter v. Price, 11 Ind. 199; Cutlip v. Sheriff, 3 W. Va. 588; State v. Harrison, 11
La. Ann. 722; Dorsey's Appeal, 72 Pa. St. 192; Walker v. State, 49 Ala. 329; People v.
Denahy, 20 Mich. 349; Weaver v. Lapsley, 43 Ala, 224; Breswick v. Mayor, 51 Ga. 639;
People v. Parks, 58 Cal. 624; People v. Supervisors, 43 N. Y. 10; People v. Allen, 42 N. Y.
417; Davis v. State, 7 Md. 151; 61 Am. Dec. 333; People v. Hall, 8 Col. 485.)
II. The system of courts provided for in the act of 1885, being different from that
prescribed in the constitution (Sec. 5, Art. 6) cannot stand. (Con. Deb. 231, 240, 648, 658,
674, 714, 718, 721, 813,) The debates of the constitutional convention will be referred to to
interpret the true meaning of the constitution. (Lewis v. Doron, 5 Nev. 409; State v. Com.
ante 247; People v. Capman, 61 Cal. 266; State v. Arrington, 18 Nev. 418; State v. Kinkead,
14 Nev. 117; Sherman v. Buick, 32 Cal. 242.)
III. The entire act is a manifest attempt to evade article 6, of the constitution. It is not
enough that an act should comply in form with the constitution; it must do so in substance.
(People v. Albertson, 55 N. Y. 50; People v. Allen, 42 N. Y. 404; People v. Potter, 47 N. Y.
375; Clarke v. Barnes, 76 N. Y. 301; Belleville R. R. Co. v. Gregory, 15 Ill. 20; 58 Am. Dec.
589; Taylor v. Chandler, 9 Heisk. 374; Hammett v. Phil., 65 Pa. St. 146; Walter v. Com., 88
Pa. St. 137; Rickart v. People, 79 Ill. 85; Marmont v. State, 48 Ind. 21; Com. v. Smith, 102
Mass. 144; State v. Mercer, 32 Iowa, 405; State v. Archer, 45 Md. 33; Com. v. Lane, 113
Mass. 458; Holoman v. State, 2 Tex. App. 610; Randle v. State, 42 Tex. 580.)
IV. Section 8 of the act is unconstitutional, because it prescribes as a condition precedent
that the judges shall reside in certain specified towns in this state. (State v. Williams, 5 Wis.
308; 68 Am. Dec. 67; State v. Lean, 9 Wis. 283; State v. Tuttle, 53 Wis. 49; Barker v.
People, 3 Cow. 686; 15 Am. Dec. 325.)
V. The act is in conflict with section 1, article 3, of the constitution. The fixing of the
times of holding court is not one of the cases expressly directed or permitted to be exercised
by the legislature. (Burgoyne v. Supervisors, 5 Cal. 20; People v. Provines, 34 Cal. 520;
Heinlan v. Sullivan, 64 Cal. 378; Smith v. Strother, 68 Cal. 194; Ex-parte Shrader, 33 Cal.
283; People v. Town of Nevada, 6 Cal. 143; Colton v. Rossi, 9 Cal. 599; Supervisors, 114
Mass. 247; Auditor v. Santa Fe R. R. Co., 6 Kan. 500; Dorsey v. Dorsey, 37 Md. 64; Bennett,
Petitioner, 32 Me. 50S;
Me. 508; 54 Am. Dec. 602; Dearing v. Bank of C., 5 Ga. 499; 48 Am. Dec. 304; State v.
Field, 17 Mo. 529; 59 Am. Dec. 275; Hayburn's Case, 2 Dal. 409.)
R. M. Clarke and R. H. Lindsay, for Respondents:
I. The delicate office of declaring an act of the legislature unconstitutional and void
should never be exercised unless there be a clear repugnance between the statute and the
organic law. (Cohen v. Wright, 22 Cal. 308; People v. Burbank, 12 Cal. 378; People v. Judge,
17 Cal. 547; Fletcher v. Peck, 6 Cranch. 128; Dartmouth Col. v. Woodward, 4 Wheat. 625;
State v. Kruttschnitt, 4 Nev. 178; Ash v. Parkinson, 5 Nev. 15; Clarke v. Irwin, 5 Nev. 111;
Evans v. Job, 8 Nev. 322; Sedg. Stat. and Con. Law. 592; Livingston v. Moore, 7 Pet. 469;
Falconer v. Campbell, 2 McLean, 195; Ogden v. Saunders, 12 Wheat. 294; Knox v. Lee, 12
Wall. 457; L. Co. v. Darlington, 101 U. S. 410; Com. v. Smith, 4 Binn. 123; Moore v.
Houston, 3 S. & R. 169; C. D. & V. R. Co. v. Smith, 62 Ill. 268; Ex-parte McCollum, 1 Cow.
550; Cooley Con. Lim. 218, et seq.)
II. Courts cannot declare a law void upon the ground that it is contrary to the spirit and
policy of the constitution, unless it is at variance with some express or clearly implied
provision of that instrument. (Cohen v. Wright, 22 Cal. 294; People v. Weller, 11 Cal. 86;
Patterson v. Supervisors, 13 Cal. 182; Wynehamer v. People, 13 N. Y. 431; Cochran v. Van
Surley, 20 Wend. 383.)
III. In the enactment of laws the legislature is supreme. It has the power to pass any act not
expressly inhibited by the letter or by the clear implication of the organic law. (Desty's Cons.
of Cal. 222, et seq.) The legislature is the sole judge of the expediency of the law. (Ex-parte
Wall, 48 Cal. 279.)
IV. The act is not in conflict with that provision of the constitution which provides that
each law * * * shall embrace but one subject and matter properly connected therewith,
which subject shall be briefly expressed in the title. (People v. Lawrence, 36 Barb. 177;
Cooley, Cons. Lim., 170, et seq.; State v. Silver, 9 Nev. 227; Humboldt Co. v. Churchill Co.,
6 Nev. 35; White v. City of Lincoln, 5 Neb. 516; City of Jonesboro v. C. &. St. L. R. Co., 110
U. S. 192; Montclair v. Ramsdal, 107 U. S. 147; State v. Town of Union, 38 N. J. L. 350;
People v. Mahaney, 13 Mich. 481.)
By the Court, Hawley, J.
On the fifteenth of February, 1886, respondents issued a notice that an election would be
held on Tuesday, the second day of November next, for state, county, and township officers,
including three district judges for the district of Nevada; and refused, upon the demand of
relator, to issue a notice for the election of one district judge for the second judicial district
of the state of Nevada, comprising Ormsby and Douglas counties. This proceeding was
instituted in this court to procure a writ of mandamus to compel respondents to issue such a
notice.
Is the act entitled An act to redistrict the state of Nevada, prescribe the number and
salaries of district judges, and fix the places of holding courts, (Stat. 1885, 60; Gen. Stat.
2485-2494,) constitutional? Is it within the power of the legislature to so redistrict the state as
to make but one judicial district? Did the framers of the constitution intend to place any
restriction upon the power of the legislature to fix the number of judicial districts, or to
prescribe the number of the district judges?
1. The first and most important question is whether sections 1, 2, and 3 are constitutional?
These sections read as follows:
Section 1. On and after the first Monday in January, A. D. 1887, the state of Nevada shall
constitute one judicial district.
Sec. 2. At the general election in the year 1886 there shall be elected three judges, who
shall be judges of said district.
Sec. 3. The district judges shall be elected by the qualified electors of the state of Nevada,
and shall hold office for the term of four years from and after the first Monday of January
next succeeding their election.
The constitution of this state declares that the judicial power of this state shall be vested
in the supreme court, district courts, and in justices of the peace. (Sec. 1, art. 6.) The state is
hereby divided into nine judicial districts. * * * The legislature may, however, provide by law
for an alteration in the boundaries or divisions of the districts herein prescribed, and also for
increasing or diminishing the number of judicial districts and judges therein. * * * There shall
be elected, at the general election which precedes the expiration of the term of his
predecessor, one district judge in each of the respective judicial districts, {except in the
first district, as in this section hereinafter provided.)
of his predecessor, one district judge in each of the respective judicial districts, (except in the
first district, as in this section hereinafter provided.) The district judges shall be elected by the
qualified electors of their respective districts. * * * (Section 5.) The district courts in the
several judicial districts of this state shall have original jurisdiction in all cases in equity. * *
* (Section 6.)
The framers of the constitution created a judicial system which involved, for the time
being, a division of the state into judicial districts. There is, therefore, no need of any
extended consideration of the meaning of the word district as used by lexicographers and
found in law dictionaries. It will be admitted that the meaning of the words district and
districts, as applied to the judicial system thus created by the constitution, had reference to
a part or portion of the state. This must be so, because nine districts were expressly named.
But what did the framers of the constitution mean by giving the legislature power to alter the
boundaries or divisions of the districts prescribed by the constitution, and to increase or
diminish the number of judicial districts, and the judges therein? Is not the whole
subject-matter left to the wisdom of the legislature to arrange, in such manner as the
necessities of the people may require?
The question, in so far as it relates to increasing or diminishing the number of district
judges, is settled by the decision of this court in State ex rel. Aude v. Kinkead, 14 Nev. 117. Is
it not equally as evident that it was the intention of the framers of the constitution to invest
the legislature with absolute power to arrange the number of judicial districts, and, if
necessary to meet the wants of the people, to reduce the number to one? True, the opinion in
State ex rel. Aude v. Kinkead, only discusses the question in so far as it relates to the number
of judges in Storey county; but are not the provisions of the constitution as clear in the one
case as the other? There is no prohibition upon the power of the legislature to increase the
number of judicial districts. Is there any restriction upon the power of the legislature to
diminish the number of judicial districts? There is no express, and, in our opinion, no
implied, provision to this effect. Is it not apparent, from all the provisions of the judicial
department, that it was the intention of the framers of the constitution to leave the
number of the judicial districts, and the number of judges, to be determined by
succeeding legislatures?
cial department, that it was the intention of the framers of the constitution to leave the
number of the judicial districts, and the number of judges, to be determined by succeeding
legislatures? The members of the constitutional convention made a provisional arrangement
to set the courts in motion so as to meet the then condition of affairs in this state; but at that
time they realized the fact that the mining excitement, and the litigation arising therefrom, in
Storey county, might cease; that other counties might, in the near future, be placed in the
same condition, and have an increase or diminution in population and judicial business; that
the population in this state being then nomadic, and hence uncertain, it might, in the future,
become necessary to have the boundaries of the districts as provisionally established, altered
or changed, and the number of judicial districts and judges therein increased or diminished,
so as to conform to the condition of existing affairs from time to time, and to be regulated by
the amount of judicial business to be transacted in the various counties of the state. This
could only be done, as it was done, by the adoption of a provision which would, without any
restrictions or limitations expressed or implied, give this power to the legislature. This is why
they said, in plain terms, that notwithstanding the provisional arrangements embodied in the
constitution, and the language used to enforce the same, the legislature may, in the future,
provide by law for an alteration in the boundaries or divisions of the districts herein
prescribed; and also for increasing or diminishing the number of judicial districts and judges
therein.
The only limitation upon the legislative power in this respect is found in the clause that no
change shall take effect except in case of a vacancy, or the expiration of the term of an
incumbent of the office. The change made by the act in question does not take effect until
the expiration of the term of the present judges. It does not, therefore, violate this clause of
the constitution. The clause that the district judges shall be elected by the qualified electors
of their respective districts is not violated if it be true that the legislature has the power to
diminish the number of judicial districts to one. It is fair and reasonable to presume that the
framers of the constitution, if they had intended to place any other restrictions upon the
legislative power, would have used apt words to express such intention, and inserted a
provision to the effect that in no event should the number of districts be diminished to
less than two, nor increased to more than the whole number of counties existing in the
state.
intention, and inserted a provision to the effect that in no event should the number of districts
be diminished to less than two, nor increased to more than the whole number of counties
existing in the state.
In the constitution of some of the states the matter is definitely fixed without any power
whatever in the legislature to change or alter the same in any respect; in others, the entire
question is left to the legislature; but in a large majority of the states the power is given to the
legislature to change, increase, or diminish the number of circuits or districts, and wherever
any limitation upon this power exists, it is stated in clear and positive terms. Thus, the
constitution of Alabama provides that the state shall be divided into convenient circuits, and
each circuit shall contain not less than three, nor more than six counties. (Const. 1819.) In
California it is provided that the state shall be divided by the first legislature into a
convenient number of districts, subject to such alteration from time to time as the public good
may require. (Const. 1849.) In Iowa the state is divided into eleven districts, and after the
year 1860 the general assembly may reorganize the judicial districts, and increase or diminish
the number of districts, or the number of judges of the said court, and may increase the
number of judges of the supreme court; but such increase or diminution shall not be more
than one district, or one judge of either court, at any one session. (Const. 1857.) In Kansas
the state shall be divided * * * into three common pleas districts of compact territory,
bounded by county lines, and as nearly equal in population as practicable. (Const. 1855.)
This provision is taken from the constitution of Ohio of 1851. In Louisiana the constitution of
1845 provides that the legislature shall divide the state into judicial districts, which shall
remain unchanged for six years; and that the number of districts shall not be less than
twelve nor more than twenty. In Mississippi the state shall be divided into convenient
districts, and each district shall contain not less than three, nor more than twelve counties.
(Const. 1832.) In New York the state shall be divided into eight judicial districts, of which
the city of New York shall be one; the others to be bounded by county lines, and to be
compact and equal in proportion, as nearly as may be. There shall be four justices of the
supreme court in each district, and as many more in the district composed of the city of New
York as may, from time to time, be authorized by law;
city of New York as may, from time to time, be authorized by law; but not to exceed in the
whole such number, in proportion to its population, as shall be in conformity with the number
of such judges in the residue of the state, in proportion to its population. (Const. 1846.) In
Pennsylvania not more than five counties shall at any time be included in one judicial
district. (Const. 1838.) In Oregon the number of justices and districts may be increased, but
shall not exceed five until the white population of the state shall amount to one hundred
thousand, and shall never exceed seven. (Const. 1857.)
These constitutions, and others of like import, were adopted prior to our constitution, and
it must be presumed that the members of the constitutional convention had knowledge
thereof. The clause from the constitution of New York was frequently referred to in the
debates. In the light of this history, how can it be said that the convention intended to place
any limitations, restrictions, or prohibitions upon the power of the legislature to enact a law
increasing or diminishing the number of judicial districts and judges? These words were
taken from the constitution of Iowa, and the restrictions imposed by that constitution are
omitted. There is no express provision requiring the legislature of this state to maintain a
convenient number of districts; that the districts shall be of compact territory, bounded by
county lines; that the districts shall be as nearly equal in population as practicable; that
each district shall contain not less than three, nor more than six, or any other number of
counties; or any other words which, by fair and reasonable interpretation, can be construed as
a limitation of power upon the legislature to do what the constitution, in direct, plain, and
express words, declared it might dodiminish the number of judicial districts. There is
nothing in the debates of the constitutional convention, to which our attention has been
called, that indicates any intention upon the part of the framers of the constitution to prohibit
the legislature from reducing the number of judicial districts to one.
It is contended on behalf of relator that although the language of the constitution does not
impose any restrictions in positive terms, yet its spirit and true intent is violated by the act in
question by the implications which arise from the ordinary meaning of the plural words
district courts and "judicial districts."
judicial districts. It is claimed that the term district is always used in the constitution in
the sense of a defined and segregated portion of the state. The result of this argument would
be to give the legislature power to establish as many districts as it pleases; but no matter what
condition the state may be in, or the amount of judicial business to be transacted therein, it
cannot reduce the districts to less than two; that the legislature might, therefore, include all
the counties in the state but one into a judicial district having one judge, and make the other
county another judicial district, and it would be a compliance with the implied prohibition for
which relator contends. Is not this too narrow a view to take of the various provisions of the
constitution relating to the judicial department? Is it not placing too much stress upon the
form, and overlooking the substance, of the constitutional provisions? This argument, based
upon the meaning of the plural words, to quote the language of Beatty, C. J., though
elaborate and very ingenious, is still far from convincing. Its fundamental fault is that it
attempts, by the application of narrow and technical rules of statutory construction, to wrest
the provisions of the constitution above quoted from their obvious meaning. (State v.
Kinkead, supra.) It gives to the words district courts and judicial districts greater significance
than the framers of the constitution intended they should have. The object was to establish
courts with a defined jurisdiction, such courts as would be necessary to transact the judicial
business in the various counties of this state.
A court is a tribunal established for the administration of justice, and is composed of one
or more persons, assembled under authority of law for the hearing and trial of causes, and the
transaction of judicial business. An organized body, with defined powers, meeting at certain
times and places, for the hearing and decision of causes and other matters brought before it,
and aided in this, its proper business, by its proper officers. (Abb. Law Dict.) It is true that
the name given to the respective courts is usually selected with reference to its peculiar
character; but it is not of such importance as to control, in any manner, its jurisdiction, power,
or authority. The framers of the constitution of this state might have given any other name to
the courts than that of district. Most of the members of the constitutional convention came
direct to this state from California, where a system of numerous courts in the respective
counties prevailed.
state from California, where a system of numerous courts in the respective counties prevailed.
There were district courts, and judicial districts composed of one or more counties. There
were county courts, and court of sessions, in every county in that state. The prevailing idea of
the members of the convention was to make such a provisional arrangement as would give to
every county in this state a court; that if every county had a court, it would be unnecessary to
provide for more than one court. The name district courts seems to have been selected
because it was deemed to be a name of higher grade and greater dignity than county courts;
but these courts, with the power and jurisdiction as given by the constitution, might,
appropriately, have been called county courts, and the judge or judges thereof might have
been elected to preside over such courts in one or more or all the counties, notwithstanding
the fact that the term county courts is ordinarily given to courts confined to each county. The
courts might have been called courts of common pleas, general courts, courts of appeal, or
any other name which pleased the fancy of the members of the convention. It is the
jurisdiction conferred upon the court that gives it its power and authority, and not its name.
The name supreme court, for instance, indicates that it is a court of the highest authority in
the state, and so it is in this state; yet in New York this name is given to courts possessing
similar jurisdiction to that given to the district courts in this state, and the name court of
appeals is given to the highest court. In Texas the name court of appeals is given to a court
having appellate jurisdiction in criminal cases, and the name supreme court applied to the
court having appellate jurisdiction in civil cases.
Instead of judicial districts the framers of the constitution might have used the words
judicial courts, judicial circuits, or general courts, one, two, three, etc. The word district does
not always mean a part or portion of a country, state, or territory. Judicial districts are
districts created for judicial purposes, for defining jurisdiction of courts, and distributing
judicial business. (Abb. Law Dict.) By successive extensions of meaning this word has
gradually lost its original and peculiar signification, and is now constantly used, in ordinary
language, to denote any extent of territory for any purpose. (Burr. Law Dict.) The circuit or
territory within which a person may be compelled to appear."
pelled to appear. (Rap. & L. Law Dict.) There is no such positive or implied meaning in the
use of the words district courts, judicial districts, or district as would authorize us, in the
absence of any express clause limiting the power given to the legislature, to declare that the
several counties in this state could not, by a legislative act, be included in one judicial district.
The constitution deals with subjects which are intended to govern the people in their rights
and privileges. In treating of the judicial department, it declares in what courts the judicial
power of this state shall be vested. It defines the jurisdiction and authority of these courts,
and specifies the powers possessed by the judges. It is, therefore, of no moment that the plural
words judicial districts were used. It is the courts with their jurisdiction and authority, and
the powers and duties of the judges, as defined in the constitution, that are to be protected and
preserved. Significance is to be given to this subject more than to the plural words, which
were employed solely with reference to the provisional arrangement of districts as made in
the constitution, without any intent upon the part of the framers of that instrument to control
the power of the legislature in diminishing the number of districts.
Under the act of 1885 each county in this state will have a district court possessing the
jurisdiction, power, and authority given to it by the constitution. The judges to be elected
under this act will have precisely the same power and jurisdiction, in the transaction of
judicial business, as is now possessed and exercised by the present district judges. The
number of judicial districts has been changed from seven to one, and the judges are to be
elected by the qualified electors of this district, which embraces all the counties in the state.
We admit that implied prohibitions, if they plainly exist in a constitution, have all the force
of express prohibitions. (State ex rel. Perry v. Arrington, 18 Nev. 415;) but when the
fundamental law has not limited, either in direct terms or by necessary implication, the
general powers conferred upon the legislature, we should not declare an act void solely upon
the ground that it may be opposed to a spirit supposed to pervade the constitution, but not
expressed in words. (Cooley Const. Lim. 208.) To do so would be to arrogate the power of
making the constitution what the court may think it ought to be, instead of simply declaring
what it is."
declaring what it is. (Walker v. City of Cincinnati, 21 Ohio St. 41.) In whatever direction we
approach the question, we are irresistibly led to the conclusion that the legislature has the
absolute power to fix, by law, the number of judicial districts, and the number of judges
therein, and that, in the exercise of this power, one district may be made of the entire state for
the purpose of apportioning the judicial business to be transacted therein by the district
judges.
2. Objection is made to the title of the act. It is argued that the act in question is in conflict
with section 17 of article 4 of the constitution, which declares that each law enacted by the
legislature shall embrace but one subject, and matter properly connected therewith, which
shall be briefly expressed in the title. In discussing this provision of the constitution in State
v. Silver, 9 Nev. 231, this court said: Its design has frequently been declared to be the
prevention of improper combinations to secure the passage of laws containing subjects having
no necessary or proper relation, and which, as independent measures, could not be carried;
and also, as expressed by Judge Gardiner, in the case of the Sun Mutual Ins. Co. v. Mayor, 4
Seld. 253, that neither the members of the legislature nor the public should be misled by the
title.' The construction placed upon the clause is that the details of a legislative act need not
be specifically stated in the title, but matter germane to the subject, and adapted to the
accomplishment of the object in view, may properly be included.
Applying this doctrine to the case in hand, it seems clear to our minds that the objections
urged by relator are not well founded. The act does not abolish the judicial districts of this
state; it simply diminishes the number of districts. The word redistrict was not evasive of
the subject of the act. It was not misleading. It called the attention of the legislature, and of
the people, to the fact that it was proposed, by the act, to make a change in the judicial
districts, to district the state over again. It may be that the title of the act is not as briefly
expressed as it might have been. It was unnecessary to state the details of the act in the title.
An act to redistrict the state would have complied with the requirements of the constitution,
and all matters that were necessary for the accomplishment of this object could have been
included; but the additions made to this title are in no sense misleading. They relate to matters
which are germane to the subject of redistricting the state.
germane to the subject of redistricting the state. The fact that some of the details were
expressed in the title does not have the effect to prohibit the legislature from putting into the
provisions of the act other details not named in the title, which were germane to the subject,
and adapted to the accomplishment of the object in view. The subject-matter of this act is
entirely different, in all its bearings, from that mentioned in State v. Bowers, 14 Ind. 196,
where the court held that the title limited the application of the general subject to the
particulars enumerated; that the specification in the title of the cases in which licenses are
to be required entirely negatives the idea that the act itself extends beyond the cases
enumerated; and that the title concerning licenses to vend foreign merchandise, to exhibit
any caravan, menagerie, circus, rope and wire dancing, puppet show and legerdemain, did
not embrace concerts. The opinion in that case proceeds upon the theory that concerts were
different exhibitions from any named in the title, and hence was not properly connected, in
the sense meant by the constitution, with the subject of the license required in the cases
specified in the title of the act. In that case there was no connection at all; here, all the
provisions of the act are properly connected with the subject expressed in the title. The act
has but one general object, that of redistricting the state. All the matters embraced in the act
are adapted to secure this object. The act, in this respect, does not violate the provisions of the
constitution. (State v. Ah Sam, 15 Nev. 32; White v. City of Lincoln, 5 Neb. 515; People v.
Mahaney, 13 Mich. 495; State v. County Judge, 2 Iowa, 284; Kurtz v. People, 33 Mich. 282;
Morton v. Comptroller General, 4 S. C. 445; State v. Town of Union, 33 N. J. L. 354;
Montclair v. Ramsdell, 107 U. S. 155.)
3. Section 4 provides that the district judges shall possess equal, co-extensive, and
concurrent jurisdiction and power. They shall each have power to hold court in any county in
this state. They shall each exercise and perform the powers, duties, and functions of the court,
and of the judges thereof, and of judges at chambers. If the public business requires, each
judge may try causes and transact judicial business in the same county at the same time. This
section does not, by any reasonable interpretation, give to the judge at chambers all of the
powers, duties, and functions of the organized judicial tribunal termed a court," as
claimed by relator.
the powers, duties, and functions of the organized judicial tribunal termed a court, as
claimed by relator. It does not in any manner invest the judges at chambers, with any other
power or authority than is now possessed by the district judges under the provisions of the
constitution. Having made one district, and provided for the election of three judges therein, it
was necessary to insert this section so as to give the judges, as was given in the constitution to
the three judges in Storey county, co-extensive and concurrent jurisdiction throughout the
entire state, and to make certain the point, which might otherwise be disputed, that although
there were three judges in one district, it only required one judge to constitute a court. The
objections to this section, urged by relator, are hypercritical, and wholly untenable.
4. The provision in section 5, that the district court shall always be open for the
transaction of business, does not abolish the existing non-judicial days. It was not intended
to have any such effect, and should not be so construed. But even if such an interpretation
could be given to it, it would furnish no legal reason for declaring the act void, as the
legislature has the power to create or abolish non-judicial days.
5. There is no constitutional objection to the method provided in section 6 for the payment
of the salaries of the district judges. This section provides for the payment of the judges'
salaries quarterly out of the county treasuries of the counties. The fact that the money is to
be paid into the state treasury, and is to be, by the state treasurer, paid to the judges in
monthly installments, does not violate the provisions of section 15, art. 6, of the constitution.
6. The provisions of section 7, which, in addition to the salary provided for, allows to
the district judges the necessary expenses actually paid by them in traveling by public
conveyance in going to and from the place of holding court, should not, in our opinion, be
construed as opposed to section 10, art. 6, of the constitution, prohibiting judicial officers
from receiving to their own use any fees or perquisites of office; but admitting, for the sake
of argument, that it is susceptible of the construction claimed by relator, it would only affect
the payment of the traveling expenses of the judges, and would not have the effect to
destroy or render void the other provisions of the act. This clause is independent of and
disconnected with the subject matter of the other provisions of the act, and if it were
unconstitutional, it would not destroy the other portions of the act.
disconnected with the subject matter of the other provisions of the act, and if it were
unconstitutional, it would not destroy the other portions of the act. Turner v. Fish, ante, 295,
and authorities there cited.
7. The authority given to the judges by section 9, to select one of their number for
presiding judge, does not contravene any provision of the constitution. The judges, without
this statutory provision, would have the inherent power to adopt such rules and regulations as
might be necessary for the proper disposition of the judicial business to be transacted by
them. They could select one of their number for presiding judge without the authority
conferred by this section of the act, or could determine, by lot or other means, which judge
should, at any given time, visit certain counties of the state, and hold court therein. The
legislature has declared in what particular manner this shall be determined, thereby obviating
any contention which might otherwise arise as to the best method to be adopted in order to
secure an equal or fair distribution of work.
8. The provision in section 9 that the courts shall be held in each county at least once in
every six months, is a compliance with section 7, article 6, of the constitution, which declares
that the times of holding the * * * district courts shall be as fixed by law. The constitution
does not require the law to specify when the terms of court shall be held. Its language is that
the terms of the district courts shall be held at the county-seats of their respective counties.
The law providing for the election of three judges, as specified in the notice given by
respondents, must stand.
The times of holding courts in the respective counties is not, perhaps, as clearly expressed
as it might have been. It may be that some difficulty or inconvenience upon the part of
litigants or attorneys may occur on that account. There may, also, be other provisions which it
will be difficult to carry out to the entire satisfaction of the people of this state. Much will, in
this respect, depend upon the character and ability of the judges who may be elected. But
whatever difficulties may arise, if any, in the enforcement of this law, it will be within the
power of the legislature to remedy the defects, if any are found. Our duty ends in determining,
as we have, that there are no constitutional objections to this law.
Upon the merits, without reference to the time when the election notice is required to be
given, the writ of mandamus is denied.
____________
19 Nev. 348, 348 (1886) Phillips v. Eureka County
[No. 1229.]
H. PHILLIPS, Respondent, v. EUREKA COUNTY, Appellant.
Trial JurorsCompensation in Criminal CasesStatute Construed.Under the provisions of the Act of 1885
(Stat. 1885, 25, Sec. 9,) trial jurors in the regular panel are entitled to receive from the county mileage,
and, in addition, per diem, when accepted and sworn in criminal cases. These fees, together with those
received in civil cases, constitute their entire compensation for attendance, travel, and services rendered.
A. E. Cheney, District Attorney of Eureka County, for Appellant.
Fitzgerald & Beatty, for Respondent.
This proceeding was instituted under section 362 of the civil practice act, for the purpose
of determining whether plaintiff is entitled to receive from defendant the sum of four hundred
and twenty-three dollars, for attendance upon the Sixth judicial district court in and for
Eureka county, by himself and his assignors, as jurors. The result depends upon the answer
given to the following question, viz.: Is or is not a trial juror, regularly summoned, who duly
appears, attends, and in open court answers to his name, pursuant to the summons and
subsequent orders and directions of a district court, at a regular term thereof, as a member of
the regular trial jury panel, entitled to a per diem of three dollars per day and mileage,
although such trial juror be not sworn to try any cause, and does not sit at the trial of any
cause on the days for which per diem is claimed?
It is not our province to declare what ought to be the policy of the state touching the
compensation of jurors or other persons whose services are required in her behalf. It is our
duty to inquire what compensation the legislature has given, and when that is ascertained
our jurisdiction ceases.
duty to inquire what compensation the legislature has given, and when that is ascertained our
jurisdiction ceases. It may be our private opinion that the laborer is worthy of his hire, and
that no juror or witness should be required to give his time to the public without
compensation; still the legislature may have thought and declared otherwise, and if such is the
case, that is the end of the matter. From 1861 to the present time jurors on coroners' inquests
have been denied compensation. Under the fee-bill of 1865 jurors and witnesses in criminal
cases were compelled to serve without pay. In the fee-bill of 1883 it is provided that for
criminal cases no witness fees shall be allowed; * * * and no fees shall be allowed to grand
or trial jurors in criminal cases; provided, that the same mileage for the same travel shall be
allowed to jurors as is allowed to witnesses in this act. (Stat. 1883, 62.) In 1885 section 9 of
the fee-bill of 1883, touching the fees of jurors, was amended, entitling jurors in criminal
cases to the same fees as in civil cases, provided, they are accepted and sworn to try the
cause. In justices' courts no fees are allowed to jurors in criminal cases. (Stat. 1885, 25.)
From the foregoing references to statutes, it is evident that it has been common to require
of citizens services as jurors and witnesses without compensation, and that such is the case at
the present time. Although we are of the opinion that the compensation of jurors is governed
by the fee-bill of 1883, as amended in 1885, above referred to, yet it may be of service to
notice the previous legislation upon this subject. In 1861, An act concerning juries was
passed, which made no provision for the compensation of jurors. At the same session An act
to regulate fees and costs was passed, which in Thornburg v. Hermann, 1 Nev. 474, was
construed as allowing compensation for each day's attendance upon the court, whether they
were accepted and sworn in any case or not, except where they were impaneled in criminal
causes, and resided within five miles of the court-house. In 1865, An act to regulate fees and
compensation for official and other services in the state of Nevada was passed, which is
similar to the statute of 1883, hereafter referred to. In 1869, An act concerning compensation
of jurors was passed, which allowed jurors, petit and grand, three dollars a day for each day's
attendance on court, and twenty cents a mile each way, if he resided more than five miles
from the place where the court was held.
from the place where the court was held. (Stat. 1869, 138; and see Stat. 1871, 56.) In 1873,
An act concerning juries was passed, the twelfth section of which allowed each juror three
dollars a day for every day he was in attendance on court, and fifteen cents a mile each way.
(Stat. 1873, 129.) In 1877 that section was amended so as to include grand jurors. (Stat. 1877,
185.)
Thereafter there was no change in relation to juror's fees until 1883, (Stat. 1883, 56-62)
when the legislature passed An act to regulate fees and compensation for official and other
services in the state of Nevada, and to repeal all other acts in relation thereto. The first
section is as follows: The several officers and persons named in this act may demand and
receive, for their services rendered in discharging the duties imposed upon them by law, the
fees and compensation hereafter specified. Then, from the second to the sixteenth sections,
inclusive, follow the fees and compensation allowed to the clerk of the supreme court, county
clerks, recorders, sheriffs, coroners, constables, witnesses, jurors, county auditors, judges and
clerks of elections, persons carrying poll-books to clerk's office, justices of the peace,
interpreters and translators, surveyors and notaries. The seventeenth section is as follows:
No other fees shall be charged than those specially set forth herein, nor shall fees be charged
for any other services than those mentioned in this act. The forty-second section repeals all
other acts and parts of acts now in force, relating to fees of officers, which fees are collectible
by said officers from the persons for whom said services are rendered, and no other acts or
parts of acts are repealed in terms. Section 9 reads thus: Fees shall be allowed to jurors as
follows: For each day, to be paid in civil cases by the party in whose favor the verdict is
rendered, * * * three dollars, excepting in justices' courts, when the fee shall be two dollars. *
* * No persons shall receive any fees for serving as a juror on a coroner's inquest. No fees
shall be allowed to grand or trial jurors in criminal cases; provided, that the same mileage for
the same travel shall be allowed to jurors as is allowed to witnesses in this act. in 1885
section 9 was so amended as to allow the same fees to grand jurors and to trial jurors in
criminal cases, as are allowed jurors in civil cases; provided, that said jurors are accepted and
sworn to try the cause; and the same mileage for the same travel shall be allowed to all grand
and trial jurors as is allowed to witnesses in this act.
be allowed to all grand and trial jurors as is allowed to witnesses in this act. No fees shall be
allowed trial jurors in criminal cases in justices' courts.
It is claimed by counsel for appellant that the statute of 1873, and its amendment in 1877,
concerning juries, were repealed by the statute of 1883; and that section 9 of that act, as
amended in 1885, prescribes the only fees or compensation that jurors are entitled to receive.
By respondent it is contended that the statutes of 1873 and 1877 are in force, except in
criminal cases, and as to those cases it is admitted that the statute of 1883 prohibited any
payment except mileage. It is not and cannot be denied that, as to all other officers and
persons named therein, the statute of 1883 prescribes the only services that may be charged
for by them, and the only fees or compensation that may be paid or received by them, for
discharging the duties imposed on them by law. But it is said that jurors are not so limited;
that the statute of 1877 was not repealed directly or by necessary implication by that of 1883,
except as to jurors actually serving in criminal cases; and that, under the statute of 1885,
amending section 9, jurors so serving may now receive three dollars a day.
The title and body of the act of 1883 show it to be an act to regulate fees and compensation
for official and non-official services. It regulates the fees and compensation, not only of the
officers named, but also of certain persons performing duties required of them by law, who
are not officers in the sense of the act. It does not regulate or affect the fees or compensation
of any officer or person not mentioned therein, although the repealing clause is that this act
repeals all acts and parts of acts now in force, relating to fees of officers, which fees are
collectible by said officers from the persons for whom said services are rendered; because it
is plain that the legislature intended to affect only the fees of officers and persons named. It
may be that the legislature intended to mention all officers who collected fees from persons
for whom services were rendered, and thought they did so; but they were mistaken, and the
fees of such officers remain as they were previously, notwithstanding the sweeping language
of the repealing clause. The fees of the secretary of state is an example. This officer is not
mentioned in the act, and his fees are in no manner regulated or changed by it. (Gen. Stat.
1798.) The persons who are not officers, but whose fees are regulated, are jurors,
witnesses, judges, clerks and inspectors of election, persons carrying poll-books to clerk's
offices, and interpreters and translators.
are not officers, but whose fees are regulated, are jurors, witnesses, judges, clerks and
inspectors of election, persons carrying poll-books to clerk's offices, and interpreters and
translators.
It is claimed by counsel for respondent that the word fees in the act relates solely to
official services, and compensation to other services. We think they are used
synonymously, as expressing the pay allowed to the officers and persons named, for
non-official as well as official services, and that the word fees, as used by the legislature,
includes the entire pay of jurorsper diem and mileage. It is admitted by counsel for
respondent that the statute of 1877 was so far repealed by that of 1883 as to prohibit the
payment of fees to trial jurors in criminal cases. The language of the statute was: No fees
shall be allowed to grand or trial jurors in criminal cases; provided that the same mileage for
the same travel shall be allowed to jurors as is allowed to witnesses in this act. But, say
counsel for respondent, a per diem is not a fee,' it is compensation;' hence the statute of
1877 allowing a per diem was not repealed by that of 1883 disallowing fees' in criminal
cases.
The only fees or compensation jurors have ever been allowed in this state for services are
mileage for travel and some sum per diem. Now, when the legislature said that no fees should
be allowed to jurors in criminal cases, except that they should have certain mileage, the only
fee left which they could not be allowed was the per diem. Certainly it was intended that
some fee usually allowed should not be received by jurors in criminal cases. It could not have
been mileage, for that was specifically allowed. It must have been the per diem. If it had not
been, the allowance made by the proviso would have been the per diem instead of the
mileage. All through the act, save for carrying the poll-books, and in case of commissioners
of deeds, the word fees is used to express the entire compensation allowed, including the
mileage and per diem of jurors and witnesses; and, in our construction, we must give to that
and other words the meaning intended by the legislature. But there are certain sections that
apply exclusively to officers receiving fees. By the eighteenth section officers only are
required to keep a fee-book. By the nineteenth, the officers named are required to make
monthly statements. By the twenty-first and twenty-second, officers only are liable to
punishment in the cases named.
twenty-first and twenty-second, officers only are liable to punishment in the cases named. By
the twenty-third, officers alone are required to post tables of fees; and section 25 also refers to
officers only, although it provides that all fees prescribed in this act shall be payable in
advance, if demanded.
In the first place, it follows immediately after the sections that refer to officers solely, and,
as we shall see, it could not have been intended to include the persons named who are not
officers. It cannot apply to jurors in civil cases, because section 9 provides that their per diem
shall be paid, first, by the party in whose favor the verdict is rendered, and this cannot be
done until a verdict is given. All other fees of jurors are paid out of the county treasury
according to the forms prescribed by law. It might apply to witnesses, but they are covered by
a separate provision, (section 8,) so it need not include them. It was not intended to apply to
judges, inspectors, and clerks of election, because section 11 provides, in terms, that their fees
per diem shall be audited and paid out of the county treasury. The same is true of the pay of
persons carrying poll-books. The fourteenth section provides that interpreters and translators
shall receive such fees as the court by whom they are employed shall certify to be just, and
until the services are rendered the court cannot know what is just.
After giving the questions presented by this appeal the consideration their importance
demands, our conclusion is that it was the intention of the legislature of 1883, in passing the
act to regulate fees, etc., to revise the whole subject-matter of fees and compensation of trial
jurors, for any and all services rendered by them, and to prohibit payment for any service not
specified therein. The authorities are numerous and uniform that such a statute repeals all
former laws upon the same subject. (Thorpe v. Schooling, 7 Nev. 16; State v. Conkling, 19
Cal. 501; City and Co. of Sacramento v. Bird, 15 Cal. 294; Gorham v. Luckett, 6 B. Mon.
154; U. S. v. Tynen, 11 Wall. 92; Nichols v. Squire, 5 Pick. 168.)
We are brought to this conclusion by the title of the act; by the language of the first and
seventh sections; by the entire act. Against our conclusion is urged the fact that, by the
forty-second section, all acts relating to fees of officers, which fees are collectible by said
officers from the persons for whom said services are rendered," are repealed in terms;
services are rendered, are repealed in terms; and no mention is made of the twelfth section of
the act of 1873, or its amendment of 1877, which plainly allowed per diem for every day's
attendance. It is a maxim of the law that the express mention of one thing implies the
exclusion of another, but it is not of universal application, and great caution is requisite in
dealing with it. (Broom, Leg. Max. 653.) Should it apply in this case? Because certain statutes
relating to fees of officers are repealed in terms, while no mention is made, in the repealing
clause, of statutes fixing the compensation of jurors, must we necessarily conclude that the
legislature did not intend to repeal the latter? We think not; but, on the contrary, it is our duty
to ascertain the legislative intent from the entire statute. It is certain that the twelfth section of
the act of 1873, concerning juries, as amended in 1877, was repealed by the act of 1883, as to
the allowance of a per diem to grand and trial jurors in criminal cases, and yet there is no
suggestion of such repeal in the repealing clause. The same is true as to mileage; that is to
say, under prior statutes jurors received fifteen cents a mile each way, while under that of
1883 they were allowed thirty cents per mile for traveling to the place of trial.
But without considering the statute itself, which to us shows the intent of the legislature to
have been as above expressed, let us look at the question from another stand-point. It is not
probable the legislature intended to put only a part of the fees that jurors might be allowed in
the fee-bill, but all that any other person or any officer should receive. It is not probable that
the intent was to fix the compensation in the matter of mileage and the per diem in the civil
and criminal cases, by the fee-bill of 1883, but to have the statute of 1877 govern as to per
diem, when jurors were in attendance on court, but not actually sitting in a cause. The idea of
a fee-bill is that it contains a complete list of fees that may be demanded and paid.
Again, whatever fees jurors on a regular panel receive, come from the county, except per
diem in civil cases. There is reason, on the score of economy, for enacting that jurors shall
receive nothing but mileage and fees in civil cases; at least, all are served alike under such a
law. But there is neither equality of treatment nor economy in saying that a juror who is in
attendance for a month, but sits in no case, shall receive about ninety dollars besides his
mileage, while another, who is compelled to assume the responsibility and endure the
perplexities of a protracted criminal trial, shall not be entitled to a per diem.
ninety dollars besides his mileage, while another, who is compelled to assume the
responsibility and endure the perplexities of a protracted criminal trial, shall not be entitled to
a per diem. In the presence of this law it is absurd to think that, the legislature intended to
refuse payment to jurors who work, but to grant it to such as are unemployed. It is much more
consonant with reason and justice, as well as the plain reading of the law, to say that, for
economical reasons, it was concluded wise to deny fees, except mileage and per diem in civil
cases. This, we think, is what was done. That the legislature of 1885 (Stat. 1885, 25)
construed the statute of 1883 as we do, admits of no doubt. It amended section 9 so as to
allow the same fees to grand jurors and trial jurors in criminal cases as are allowed in civil
cases, provided they are accepted and sworn to try the case. Suppose there are fifty jurors on
the regular panel, and twelve are accepted and sworn to try a criminal cause. The twelve get
pay because they are accepted and sworn. Otherwise they would receive nothing. In other
words, the thirty-eight not accepted are not paid while the trial continues. If this is not so,
then the proviso amounts to nothing. Why should the legislature allow per diem to jurors not
sitting in a civil case, or when a case is being tried without a jury, or when the court is not in
session, but deny it to those not sitting in a criminal case? There is the same reason for
allowance or disallowance in one case as in the other. In neither are the jurors actually
employed, but in all they are taken from their homes and business, and subjected to unusual
expense.
Without pursuing the subject further, our opinion is that the twelfth section of the statute
of 1873, concerning juries, as amended in 1877, was repealed by the act of 1883, An act to
regulate fees and compensation for official and other services in the state of Nevada, and to
repeal all other acts in relation thereto; that the ninth section of the latter act, as amended in
1885, is the latest and controlling statute in the matter of jurors' fees or compensation; and
that under it trial jurors in the regular panel are entitled to receive from the county mileage,
and, in addition, per diem, when accepted and sworn in criminal cases. These fees, together
with those received in civil cases, constitute their entire compensation for attendance, travel
and services rendered.
The judgment of the court below is reversed, with costs against respondent.
____________
19 Nev. 356, 356 (1886) State v. Boyd
[No. 1232.]
THE STATE OF NEVADA ex rel. J. F. HALLOCK, STATE
CONTROLLER, Relator, v. D. B. BOYD, TREASURER OF
WASHOE COUNTY, Respondent.
County TreasurerPoll-TaxCommission for Collection.County treasurers are not entitled to deduct, as
percentage commission allowed to the county, ten per cent. of the poll-taxes collected by them, as
ex-officio tax receivers, from the amount payable into the state treasury for state purposes.
W. H. Davenport, Attorney-General, and H. F. Bartine, for Relator.
John F. Alexander, for Respondent.
This is an application for a peremptory writ of mandate, compelling respondent, as
treasurer of Washoe county, to pay into the state treasury of Nevada the sum of one hundred
and seventy-one dollars and eighty cents, claimed to be due from said county to the state, on
account of poll-taxes collected by respondent as ex-officio tax receiver, during the half year
ending December, 1885. It is admitted that three thousand four hundred and thirty-six dollars
were collected. Of this amount relator claims one-half for the state, that is to say, one
thousand seven hundred and eighteen dollars, while respondent is of the opinion that the
county of Washoe is entitled, under the law, to deduct from the whole amount ten per cent.
(three hundred and forty-three dollars and sixty cents) and that the state is entitled to one-half
of the balance, to-wit: one thousand five hundred and forty-six dollars and twenty cents.
Respondent paid in the amount last named, but refused, and still refuses to pay the balance
claimed by relator, one hundred and seventy-one dollars and eighty cents.
The statute provides that of the moneys collected as poll-tax, after all the expenses of
collection are paid, fifty per cent.
19 Nev. 356, 357 (1886) State v. Boyd
shall be paid into the county treasury for county purposes, and the remaining fifty per cent.
shall be paid in for state purposes. (Gen. Stat. 1128.) Under the revenue act of 1865 the
assessor was allowed to retain ten per cent. of all the poll-taxes paid to him as compensation
for collection. (Gen. Stat. 1129.) In 1877, section 50 of the revenue act of 1865 was amended.
Poll-taxes were required to be entered upon the assessment roll if they were unpaid, in cases
where persons owing them owned real estate which was assessed, and poll-taxes became
delinquent like property taxes. Upon poll-taxes not delinquent, collected by the tax receiver,
the assessor was entitled to be allowed by the board of county commissioners, ten per cent.
commission. (Stat. 1877, 172, 173.)
It is claimed by respondent that the statute last referred to is in force, and that under it, and
other statutes hereafter mentioned, he is justified in retaining the amount in controversy, for
the benefit of Washoe county. We think he is in error. It will be noticed that the ten per cent.
allowed by the statute of 1877, like that of 1865, belonged to the assessor, and not to the
county. In 1879, An act fixing the salaries of the various county officers in the state was
passed, which provided that the salaries therein fixed should be in full for all services, and all
ex-officio services, required of them by law. The salary of the assessor of Washoe county was
fixed at two thousand dollars per annum. Under the ninth section, the several county officers
named were required to collect, and safely keep, all fees, percentages, and compensations
allowed them by law, for services rendered by them or their deputies in their several official
capacities, and pay the same over to the county treasurer of their county on the first Monday
in each month. (Stat. 1879, 133.) That law went into effect on the first Monday in January,
1881. On March 1, 1883 (State. 1883, 78.), the salary law of 1879, and all acts amendatory
thereof and supplementary thereto, were repealed, but the repeal did not take effect until the
first Monday in January, 1885. On the fourteenth of March, 1883, An act in relation to
county assessors, their terms of office and compensation, was passed. It fixed the salary of
the assessor of Washoe county from and after January 1, 1885, at one thousand five hundred
dollars per annum for all services required by law, and repealed all acts and parts of acts in
conflict therewith. (Stat. 1883, 123.)
19 Nev. 356, 358 (1886) State v. Boyd
It will be seen from the above that the salary law of 1879 repealed the provisions of the
statute of 1877 allowing the assessor a commission of ten per cent. on poll-taxes collected by
the ex-officio tax receiver; but from the first Monday in January, 1881, until the first Monday
in January, 1885, counties were entitled to retain it.
This, then, was the situation on the first Monday in January, 1885: There was no statute
allowing the assessor any commission as compensation for collection of poll-taxes, but, on
the contrary, the statute of March 14, 1883, prohibited such allowance; and if the statute of
1879 had been in force, the ten per cent. formerly allowed the assessor could not have been
paid to the treasurer and retained by the county, because, under section 19, only fees and
percentages allowed the assessor could have been so paid or retained. Had there been no
other legislation subsequent to the first Monday in January, 1885, it cannot be doubted that
the state would have been entitled to receive fifty per cent. of all money collected for
poll-taxes; but, at the session of 1885, other statutes touching this question were passed, and
it becomes necessary to ascertain their effect upon the subject in hand.
By an act approved March 5, 1885, (Stat. 1885, 62,) it was provided as follows: On all
moneys collected from personal property tax, poll-tax, and the tax on the proceeds of mines,
by the several county assessors in this state, there shall be reserved and paid into the county
treasury, for the benefit of the general fund of their respective counties, by said county
assessors, the following percentage commissions: first, on the gross amount of collections
from personal property tax, six per cent.; second, on the gross amount of collections from
poll-tax, ten per cent.; third, on the gross amount of collections from the tax on the proceeds
of mines, three per cent. On March 11, 1885, an act regulating the compensations of county
officers in the several counties of this state, and other matters relating thereto, was passed. It
fixes the salary of the assessor of Washoe county at one thousand eight hundred dollars per
annum, and provides that such salary shall be in full for all services, and ex-officio services,
required by law. No other portion of this statute affects the question under consideration.
Under the act of March 5, 1885, above referred to, ten per cent. of all moneys collected on
account of poll-taxes, by the assessor, must be reserved and paid into the county treasury,
as percentage commissions allowed to the county; but there is no authority for the
reservation or payment of any percentage on account of poll-taxes collected by the
ex-officio tax receiver.
19 Nev. 356, 359 (1886) State v. Boyd
must be reserved and paid into the county treasury, as percentage commissions allowed to the
county; but there is no authority for the reservation or payment of any percentage on account
of poll-taxes collected by the ex-officio tax receiver. Any other conclusion would be judicial
legislation.
Whether or not there is the same reason for allowing a commission to counties for
poll-taxes collected by the ex-officio tax receiver, as there is for those collected by the
assessor, is a question that may engage the attention of the legislature; but as the law now
reads we cannot construe the words county assessors to mean county assessors and
ex-officio tax receivers.
Writ granted.
____________
19 Nev. 359, 359 (1886) Schulz v. Sweeny
[No. 1242.]
OTTO T. SCHULZ, Respondent, v. JOHN P. SWEENY,
Appellant.
Water-CoursesAbandonment of WaterWater Rights.Where water from a flumeused for floating
woodhas been discharged into a natural channel, as a matter of convenience and for the purpose of
getting rid of the water, without any intention to reclaim it, it becomes a part of the waters of the natural
channel and is subject to the same rights as the water naturally flowing therein.
ErrorWhen Does Not Justify Reversal.An error in the decree of the court which works no injury to the
losing party does not authorize a reversal of the judgment.
A. C. Ellis, and Wm. M. Stewart, for Appellant.
Clarke & King, for Respondent.
Defendant, by means of a dam and ditch constructed above the lands of plaintiff, diverted
therefrom the waters of Lake View canyon. These waters are produced by rains and melting
snows, and, collecting in a channel, are increased by subterranean currents cut by tunnels
driven into the mountains for that purpose.
snows, and, collecting in a channel, are increased by subterranean currents cut by tunnels
driven into the mountains for that purpose. The body of water thus formed finds its way
during a portion of the irrigating season by the channel, and through the depressions of Eagle
Valley, first to the lands of the plaintiff, and afterwards to the lands of the defendant. At times
during the summer months the volume of water is materially increased by the water of a
wood flume operated by a corporation known as the Sierra Nevada Wood & Lumber
Company. The water of the flume forms a part of that appropriated by the Virginia & Gold
Hill Water Company, also a corporation, organized for the purpose of supplying the
inhabitants of the towns of Virginia City and Gold Hill with water for domestic and other
purposes. This company acquires the control of a supply of water in the Sierra Nevada
mountains, presumably by reservoirs, aqueducts, and such other appliances as are employed
by companies having a similar purpose. A portion of this water is conducted into the flume of
the wood company for the purpose of carrying wood from the mountains to the terminus of
the flume at the head of Lake View canyon. The water, after being thus used, is incapable of
being conveyed by pipes to the localities where the water company is engaged in furnishing
water, and it is therefore discharged. The point of discharge is upon a mountainous ridge
dividing Eagle valley from Washoe valley. Water discharged at this point, following the
natural depressions of the mountain, would find it way to Washoe valley. The water may also
be directed to Eagle valley by means of a ditch leading from the flume to the canyon, and,
when so directed falls into the channel. Through the agency of the water company the
discharged water has been sent, some years to one of these valleys, other years to the other
valley, and again to both valleys. During the month of July, 1885, and before the
commencement of this action, the water company, for a valuable consideration, leased to the
defendant the water that should be discharged at the mouth of the flume during the remainder
of the year. The district court decided that defendant acquired no rights by reason of the lease,
and a decree based upon this conclusion was accordingly entered. In support of the decree it
is said that if the right to dispose of the flume waters rested anywhere, it was in the flume
company, and not in the water company; but that, in any event, nothing passed by the lease,
because the waters were abandoned.
nothing passed by the lease, because the waters were abandoned.
In the view we take of this case, we deem it immaterial to inquire where the right of
disposition rested. The water was discharged from the flume for the purpose of getting rid of
it, and left to find its way to the natural level of the country, through the lands of others,
without intention to reclaim or enjoy it. Neither company undertook to exercise any control
over the water after it was discharged, save to direct it to one valley or the other, and so as to
do no injury to settlers along its course. These facts are conclusive evidence of an
abandonment. The effect of turning the waters into the channel was to make them a part of
the stream, and subject to the same rights as the water naturally flowing therein. This
principle will be shown by reference to authorities. In Goddards's Law of Easements, page 51,
it is thus stated: When a stream is natural, there can be no doubt that all waters which flow
into it become a part of that stream, and subject to the same natural rights as the rest of the
water, and that it makes no difference that the water so flowing to the natural stream was sent
down by artificial means.
In Wood v. Waud, 3 Exch. 779, the effect of mingling the waters of an artificial drain with
those of a natural stream was considered. The court said: Have the plaintiffs a right to the
waters of this slough, as described in the third count of the declaration? It appears to us to be
clear that as they have a right to the use of the Bowling Beck, as incident to their property on
the banks and bed of it, they have the right to all the water which actually formed part of that
stream as soon as it had become part, whether such water came by natural means, as from
springs, or from the surface of the hills above, or from rains or melted snow, or was added by
artificial means, as from drainage of lands or of colliery works; and if the proprietors of the
drained lands or of the colliery, augmented the stream by pouring water into it, and so gave it
to the stream, it would become a part of the current. No distinction could then be made
between the original natural stream and such accessions to it. (See, also, Washb. Easem.
274; Ang. Water-course, Sec. 95; Eddy v. Simpson, 3 Cal. 249.)
In behalf of appellant it is claimed that the use of the channel for the purpose of
conducting the water to the defendant's dam was not an abandonment of the water.
dam was not an abandonment of the water. Hoffman v. Stone, 7 Cal. 47, and Butte Canal Co.
v. Vaughn, 11 Cal. 143, decide that it is not an abandonment of artificial waters to mingle
them with the water of a natural water course for the purpose of conducting them to the point
where they are to be used. In such cases the prior appropriator cannot complain of the use
made of the bed of the stream, so long as the party conducting the water does not divert more
than he has added to the stream. But these cases are plainly distinguishable from the one at
bar. In them the water was turned into the stream for the purpose of diverting a like quantity
at a point further down, this was the end to be accomplished; while here the water was
discharged into the stream as a matter of convenience, and without intention of recapturing it.
Exceptions were taken to the failure of the court to ascertain, by its findings of fact, the
extent of defendant's appropriation of the water. The decree provides that the water of the
channel shall pass over the lands of the plaintiff before any right to its use by defendant shall
attach. In this respect it is technically erroneous. Defendant, as an appropriator of the water,
should have the right to divert it to the extent of his appropriation, either above or below the
lands of the plaintiff. The decree should have ascertained the amount of water to which he
was entitled, and recognized this right. But the point at which the water might be diverted
does not appear to have been a question at the trial. It was not shown that defendant could not
divert the water as advantageously below the land of the plaintiff as above it. No pretense is
made that by reason of this provision of the decree defendant is in anywise prejudiced in the
use of the water. The diversion above the land of plaintiff by means of the dam and ditch was
not because that was a more beneficial way of using the water, but was for the purpose of
preventing the use of the flume water by the plaintiff.
The error works no injury to the defendant, and does not authorize a reversal.
Judgment and decree affirmed.
____________
19 Nev. 363, 363 (1886)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
JULY TERM, 1886.
____________
19 Nev. 363, 363 (1886) Frevert v. Swift
[No. 1239.]
F. A. A. FREVERT, et al., Respondents, v. S. T. SWIFT,
Appellant.
JudgesDisqualificationActs Void.Acts of a judge, involving the exercise of judicial discretion, in a case
where he is disqualified from acting, are not voidable only, but void.
IdemNew Trial.A judge who is disqualified from hearing a case cannot extend the time within which to file
a statement on motion for a new trial.
A. C. Ellis and J. R. Judge, for Appellant.
Clarke & King, for Respondents.
The judge of the third judicial district court who tried this cause, overruled defendant's
motion for a new trial upon the ground that no statement on motion for a new trial had been
filed within the time required by law. The notice of motion for a new trial was filed and
served October 14, 1885, and thereafter, on the seventeenth of October, the judge of the
second judicial district court, who was disqualified to try said cause, made an order
extending the time in which to file and serve said statement on motion for a new trial. If this
order extending the time is valid, then the statement was filed within time. If it was invalid,
the order refusing a new trial must be affirmed.
The statute of this state declares that a judge shall not act as such in an action or
proceeding, * * * when he has been attorney or counsel for either party in the action or
proceeding; but this section shall not apply to the arrangement of the calendar or the
regulation of the order of business. (Gen. Stat. 2464.) Under the provisions of this statute a
judge who is disqualified to try the cause is only authorized to make such formal orders as
may be necessary for the arrangement of the calendar, or regulation of the order of business,
so that the cause can be tried, or judicial acts relating thereto performed, by a judge who is
qualified to try the cause.
At common law any action upon the part of a judge interested in the cause was regarded as
an error or irregularity to be corrected by a reversal of his judgment; but the general effect of
the statutory prohibitions in the several states is undoubtedly to change the rule of the
common law so far as to render those acts of a judge involving the exercise of judicial
discretion, in a case wherein he is disqualified from acting, not voidable merely, but void.
(Freem. Judg., Sec. 146; People v. De La Guerra, 24 Cal. 73; Estate of White, 37 Cal. 190; In
re Cottle, 5 Pick. 483; Coffin v. Cottle, 9 Pick. 292; Hall v. Thayer, 105 Mass. 219; Converse
v. McArthur, 17 Barb. 411; Schoonmaker v. Clearwater, 41 Barb. 200; Chambers v.
Clearwater, 1 Keyes, 310; Darling v. Pierce, 15 Hun. 546; Reams v. Kearns, 5 Cold. 217;
State v. Castleberry, 23 Ala. 85; Chambers v. Hodges, 23 Tex. 105; Gains v. Barr, 60 Tex.
676; Lacy v. Barrett, 75 Mo. 469.)
The statement not having been filed within the time required by law, cannot be considered
unless this objection has been waived by plaintiffs. It was not waived by the acceptance of the
statement. Without examining the statement, plaintiffs could not determine whether the order
extending the time was made by the judge who tried the cause or not, and the objection could
not be made until such fact was determined. The record shows that after the filing and service
of the statement on motion for new trial, plaintiffs applied to the judge, who was disqualified
to try said cause, for an order granting additional time in which to prepare, file, and serve
amendments to the statement on motion for new trial. It is further shown by the certificate of
the clerk that no amendments were proposed. The application to the judge, who was
disqualified, might as well have been made to a stranger having no authority to act. If it had
been granted, the order would have been absolutely null and void. Under these circumstances,
the case must be treated as if no application had been made for any extension of time to file
amendments. Conceding, therefore, for the purposes of this opinion, that the failure to file a
statement within the time required by law might be waived by the opposite party proposing
amendments to the statement, (Hayne, New Trial, Sec. 145, p. 394.) it would not avail
appellant in this case, because no amendments were proposed, and no application to file any
amendments was made, to any person authorized to grant the same.
The action of the court in denying a new trial, upon the ground that no statement on
motion for a new trial had been filed within the time required by law, must be sustained.
____________
19 Nev. 365, 365 (1886) State v. Bryan
[No. 1238.]
THE STATE OF NEVADA, Respondent, v. EMMITT JONES
and W. J. BRYAN, Appellants.
BurglaryPossession of Stolen MoneyEvidence.Facts are stated in opinion: Held, sufficient to sustain the
verdict against Bryan, and insufficient as against the defendant Jones.
Reasonable DoubtInstructions.State v. Nelson, 11 Nev. 340, in regard to instructions as to reasonable
doubt, affirmed.
19 Nev. 365, 366 (1886) State v. Bryan
Wm. Webster, for Appellants.
W. H. Davenport, Attorney-General, and H. F. Bartine, for Respondent.
Appellants were jointly indicted, tried and convicted of the crime of burglary.
1. The first question to be considered is whether the evidence is sufficient to sustain the
verdict. We are of opinion that it is sufficient to sustain the verdict against W. J. Bryan, but
we do not find any evidence to sustain the verdict against Emmitt Jones. The testimony shows
that about 7 o'clock p. m., on the twenty-third of November, 1885, some person or persons
feloniously entered the store of S. Jacobs, in the town of Reno, and took from the money
drawer the sum of ten dollars in silver coin. Appellant Bryan was seen standing on the street,
and looking into the store, a few minutes before the entry was made. He was seen coming out
of the store at or about the time the money was taken, and was pointed out to the officers,
who arrested him. When arrested he was in company with appellant Jones. They were both
searched, and eight dollars was found upon Bryan and two dollars upon Jones. This money
corresponded in denomination, as well as in amount, with the money taken from the store.
The fact that Jones was seen in Bryan's company within a very short time after the
burglary, and the further fact that they had the exact amount of money feloniously taken from
the store, were suspicious circumstances, proper to be considered in the case; but, unless
other testimony was offered to connect Jones with a knowledge of the burglary, was
insufficient to authorize his conviction. For aught that appears in the record, Jones may have
innocently joined Bryan without any knowledge of the crime that had been committed, and
Bryan may have given him the two dollars found in his possession without there being any
complicity between them in the commission of the crime. The connecting links in the chain
of evidence to constitute the offense, as against Jones, are missing. The fact that he visited
the store about three o'clock in the afternoon, on the day the money was taken,
purchased and paid for a pair of stockings, does not connect him with the crime
committed by Bryan.
19 Nev. 365, 367 (1886) State v. Bryan
he visited the store about three o'clock in the afternoon, on the day the money was taken,
purchased and paid for a pair of stockings, does not connect him with the crime committed by
Bryan.
2. Objection is made to the giving of an instruction relating to reasonable doubt, and the
amount of proof required to convict, identical with the instruction sustained by this court in
State v. Nelson, 11 Nev. 340. We deem it unnecessary to again review this instruction, as the
objections now urged against it were carefully considered in the case referred to. We then
declared that the instruction, taken as a whole, was correct. We are still in the same opinion.
The judgment of the district court against appellant Bryan is affirmed. The judgment of the
district court as against appellant Jones is reversed, and the cause, as to him, remanded for a
new trial.
____________
19 Nev. 368, 368 (1886)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
OCTOBER TERM, 1886.
____________
19 Nev. 368, 368 (1886) State v. Crutchley
[No. 1244.]
THE STATE OF NEVADA, Respondent, v. EDWARD
CRUTCHLEY, Appellant.
Criminal LawMisconduct of JuryAffidavit of Juror Inadmissible.The affidavit of a juror is not, as a
general rule, admissible to show misconduct on the part of another juror.
Challenge to Jurors for Implied Bias not Subject to Review.The action of the court in allowing a challenge for
implied bias is not subject to review. State v. Larkin, 11 Nev. 325, affirmed.
Appeal from the District Court of the Sixth Judicial District, White Pine County.
W. C. Love, for Appellant.
Appellant was convicted of murder in the first degree. He appeals from an order denying
his motion for a new trial, and from the judgment. The grounds of motion for new trial were
misconduct of the jury, and error in law occurring at the trial, excepted to by defendant.
1. The court did not err in denying a new trial on the ground of misconduct of the jury,
because there was no evidence of misconduct presented which the court had the right to
consider. The only evidence offered was the affidavit of a trial juror, purporting to give a
statement made by another juror, in the jury-room, after the jury had retired to consider their
verdict. It is the general rule that such affidavits are not admissible to impeach the verdict. If
there are exceptions to the rule stated, this is not one of them. (Bishop v. State, 9 Ga. 124;
O'Barr v. Alexander, 37 Ga. 203; State v. Tindall, 10 Rich. 213; Smith v. Culbertson, 9 Rich.
110; Allison v. People, 45 Ill. 37; Leighton v. Sargent, 31 N. H. 119; Boyce v. California
Stage Co., 25 Cal. 465; Polhemus v. Heiman, 50 Cal. 438; People v. Gray, 61 Cal. 164;
Wright v. Illinois & Mississippi Tel. Co., 20 Iowa, 210; Woodward v. Leavitt, 107 Mass. 453;
Cook v. Castner, 9 Cush. 278; Folsom v. Manchester, 11 Cush. 337; Dana v. Tucker, 4
Johns. 488; State v. Freeman, 5 Conn. 348; Meade v. Smith, 16 Conn. 356.)
2. It is claimed that, in law, the court erred in allowing the state's challenge of a juror,
August Steen, for implied bias. The ground of the challenge was that, in this case, where the
evidence was purely circumstantial, the juror entertained such conscientious opinions as
would preclude his finding the defendant guilty.
In State v. Larkin, 11 Nev. 325, it was decided that the action of the district court in
allowing challenges for implied bias is not made the subject of an exception; and that, under
the criminal practice act, the question whether the answers given by a juror challenged by the
state for implied bias were of such a nature as to actually disqualify him from serving as
juror, is not subject to review. And see People v. Murphy, 45 Cal. 143. It follows that the
result of this appeal would have been the same if the court below had settled a bill of
exceptions according to the facts, and this court had been of the opinion that the juror
was not, in fact, disqualified.
according to the facts, and this court had been of the opinion that the juror was not, in fact,
disqualified. Such being the case, the refusal of the court to settle a bill of exceptions, if
erroneous, as claimed by defendant, was harmless.
The judgment and order appealed from are affirmed, and the district court is directed to fix
a day for carrying its sentence into execution.
____________
19 Nev. 370, 370 (1886) State v. Adams
[No. 1246.]
THE STATE OF NEVADA ex rel. CHAS. E. LAUGHTON, LIEUTENANT-GOVERNOR
OF THE STATE OF NEVADA, Relator, v. JEWETT W. ADAMS, GOVERNOR
OF THE STATE OF NEVADA, Respondent.
MandamusBond of State OfficerWhen Must be Filed.A petition for a mandamus to compel the governor
to approve or disapprove the bond of an officer required by law to give a bond within thirty days from the
time of his appointment, must show that the bond was presented to the governor within the prescribed
time.
A. C. Ellis, J. R. Judge, and Wm. M. Stewart, for Appellant.
R. M. Clarke, for Respondent.
The relator petitioned the district court to issue its alternative writ of mandamus, requiring
the respondent, the governor of the state, to take action, by way of approval or disapproval, of
his bond as ex-officio state librarian. By a law of the state approved February 17, 1883, and
during the relator's term of office as lieutenant-governor, he was appointed ex-officio state
librarian. By a subsequent law, approved March 1, 1883, he was required, before entering
upon the duties of the ex-officio office, to execute a bond, with sureties to be approved by the
governor, conditioned for the faithful discharge of the duties of the office. These facts, among
others, are substantially set forth in his petition; and also the further fact that the bond upon
which action was requested, was presented to the governor upon the sixteenth day of
November, 1SS5.
19 Nev. 370, 371 (1886) State v. Adams
upon which action was requested, was presented to the governor upon the sixteenth day of
November, 1885.
The district court sustained a demurrer to the petition, based upon the ground that the facts
alleged were insufficient to entitle the relator to the writ. The ruling of the district court was
correct. The law declaring the causes of vacancy in public offices provides, among other
grounds, the refusal or neglect of the person appointed to give the bond required by law
within thirty days from the time of his appointment. (Gen. Stat. 1657, 1670.) If the relator was
entitled to have his bond approved, he should have shown, by proper averments, that it was
presented to the governor within thirty days from the date of his appointment, or such other
time as the statutes provide. Failing in this, the mandamus was properly refused.
Judgment affirmed.
____________
19 Nev. 371, 371 (1886) State v. Hallock
[No. 1253.]
THE STATE OF NEVADA ex rel. O. H. GALLUP, Relator,
v. J. F. HALLOCK, STATE CONTROLLER, Respondent.
MandamusState OfficersSalaryAppropriation for two Offices in Solido.Where a sum has been
appropriated by the state legislature providing for the payment to the lieutenant-governor of a salary in
solido as ex-officio adjutant-general and ex-officio state librarian, and another is appointed, the state
controller is justified in refusing to audit a compensation allowed such substituted official by the board of
examiners, as the appropriation has become inoperative.
R. M. Clarke, for Relator.
H. F. Bartine, for Respondent.
A vacancy arose in the office of state librarian during the month of September, 1885, by
reason of the failure of the lieutenant-governor to maintain his official bond. (State ex rel.
Attorney-General v. Laughton, ante, 202.) The relator was appointed to the vacancy, and
has ever since acted as state librarian.
appointed to the vacancy, and has ever since acted as state librarian. The state board of
examiners have allowed him, as compensation for his services, the sum of one hundred and
fifty dollars per month, aggregating the sum of two thousand two hundred and fifty dollars.
Respondent, the state controller, refuses to audit and allow the claim, or draw his warrant
therefor. Relator seeks, by this proceeding in mandamus, to compel the controller to do so.
Under the provisions of an act of the legislature, approved February 24, 1866, entitled An
act defining the duties of the state controller, (section 1811, Gen. Stat.,) it is made the duty
of this officer to audit all claims against the state for the payment of which an appropriation
has been made, but of which the amount has not been definitely fixed by law, and which have
been examined and passed upon by the board of examiners.
The question to be determined is whether an appropriation has been made for the payment
of this claim. If it has, the controller should audit the claim. If not, he rightly refused to act.
The fund sought to be subjected to the payment of the claim was created by the general
appropriation bill of March 7, 1885. (Stat. 1885, 70.) By this law the legislature made specific
appropriations of money for the support of various public institutions, the payment of salaries
of officers, and such other matters as are usually embraced in laws of this character. The first
section of the act appropriates the various sums of money thereinafter named for the purposes
particularly expressed. Section four of the act reads as follows:
Sec. 4. For salary of lieutenant-governor, as ex-officio adjutant-general and ex-officio
state librarian, five thousand four hundred dollars.
At the time this appropriation was made, the law of February 17, 1883, defining the
ex-officio duties of the lieutenant-governor, was, and has ever since been, in force. This law is
as follows.
Sec. 1. The lieutenant-governor shall be ex-officio adjutant-general of the state and
ex-officio librarian, and for the services he shall render as such, and while acting as governor
in the absence of the governor from the state, he shall receive and annual salary of two
thousand seven hundred dollars, to be paid at the same time and in the same manner as other
state officers are paid, and no extra clerical labor shall be employed at the state's expense in
said library, save and except while he is otherwise employed on other official duties."
at the state's expense in said library, save and except while he is otherwise employed on other
official duties. (Sec. 1777, Gen. Stat.)
It is contended, in behalf of relator, that the compensation of the lieutenant-governor is
fixed by the law of 1881, (Stat. 1881, 44), and that it was not within the power of the
legislature, as contemplated by the act of 1883, to make any change in the compensation of
the lieutenant-governor to take effect during Mr. Laughton's term of office. Such change, it is
claimed, is in violation of article 15, section 9, of the constitution, which provides: The
legislature may at any time provide by law for increasing or diminishing the salary or
compensation of any of the officers whose salary or compensation is fixed in the constitution,
provided no such change of salary or compensation shall apply to any officer during the term
for which he may have been elected.
In Crosman v. Nightingill, 1 Nev. 323, it was held that the compensation of the
lieutenant-governor, as such, was not fixed in the constitution, but only a per diem for
services actually rendered as president of the senate. This decision sustains the act of 1883 in
changing the compensation of the lieutenant-governor, to take effect during the term of the
incumbent. The money appropriated by the act of 1885 was intended for the payment of the
compensation of the lieutenant-governor for the two years then succeeding, as fixed by the
law of 1883, in consideration of the performance of the duties enjoined upon him by law.
This intention is shown by a consideration of the statute of 1883, in connection with the
language of the statute of 1885, declaring the purpose of the appropriation to be the payment
of the lieutenant-governor for services as ex-officio state librarian and ex-officio
adjutant-general, and the sum appropriated was set apart in solido for the payment of all of
the services to be rendered by this officer. Conditions have arisen which prevent the
employment of the fund in this manner, and the appropriation has become inoperative. But
the legislature itself would have segregated the fund had segregation been contemplated.
We conclude that no portion of the appropriation can be employed in payment of relator's
claim.
Writ denied.
Leonard, J.:
I concur in the judgment.
Hawley, J., concurring:
It is the duty of respondent, as state controller, to audit all claims against the state for the
payment of which are appropriation has been made, but of which the amount has not been
definitely fixed by law, and which shall have been examined and passed upon by the board of
examiners, and he shall allow, of such claims, such an amount as he shall decree just and
legal, not exceeding the amount allowed by said board, and draw warrants on the treasurer
for such amounts as shall be allowed. (Gen. Stat. 1811.) The statute also provides that no
warrant shall be drawn on the treasury, except there be an unexhausted specific appropriation
by law to meet the same. (Gen. Stat. 1812.)
The claim presented by relator is not of that class, within the contemplation of the framers
of the constitution, to be considered and acted upon by the board by examiners. (Art. 5,
Sec. 21.) The legislature did not intend that this claim should, in any event, be passed upon by
the board of examiners, and audited by the state controller. It should not be treated the same
as claims coming within the appropriations for the support of different state institutions, and
other cases, where the value of the services rendered, and of the supplies furnished, cannot,
from the very nature of the claims, be ascertained in advance, and for the payment of which a
gross sum is always appropriated. It belongs to an entirely different class, to-wit: the salary
and compensation of public officers, the amount of which is definitely fixed either under the
provisions of the constitution or by the statute.
The appropriation of five thousand four hundred dollars was intended as compensation for
the services to be rendered by the state librarian and adjutant-general. The legislature,
supposing that the lieutenant-governor would comply with the laws then in force, and
perform the duties of these offices, appropriated a definite and fixed amount as compensation
for the services to be rendered therein. It is true that the appropriation, as made by the
legislature, includes compensation for the services performed by relator as state librarian; but
it also includes compensation for the services of the lieutenant-governor as ex-officio
adjutant-general, which is a separate and distinct office. The amount appropriated cannot be
segregated, as the statute does not declare what portion of the amount was intended as
compensation for the services of the state librarian, or what portion was intended for the
services of the adjutant-general.
as the statute does not declare what portion of the amount was intended as compensation for
the services of the state librarian, or what portion was intended for the services of the
adjutant-general. The fact that these offices are held by different personsa condition of
affairs not contemplated by the legislature when the appropriation was mademakes it
apparent, as stated in the opinion of the chief justice, that this appropriation has become
inoperative, and cannot be used as compensation for the services rendered in either office.
In Kinsey v. Kellogg the court said: When the act of 1876 was passed, there was a person
who was discharging the duties of clerk, recorder, and auditor, and, unless subsequent
legislation should require otherwise, one person would continue to fill the three separate
offices. It was to this condition of things that the law was made applicable, and the
compensation provided by it was provided as compensation to the clerk, the recorder, and the
auditor. The law did not determine how much should be paid to each of the three officersa
matter of no consequence so long as the three offices were in one man. But when the
organization of the county government was changed, and the person who was clerk was not
auditor nor recorder, it is clear that no one of the three officers was entitled to receive the
compensation intended for the three; and, as the act of 1876 did not provide for the event, the
act, by force of its own expressions, became inoperative when the event occurred. (65 Cal.
115.)
In the case at bar there is a general appropriation for the entire services to be rendered in
two separate and distinct offices; but there is no specific appropriation of any sum of money
for the payment of the particular claim and demand of relator as state librarian; and, as there
is no unexhausted specific appropriation by law to meet the same, it was the duty of the
state controller to refuse to draw any warrant therefor. Owing to the existing condition of
affairs, it will devolve upon the legislature to determine, in accordance with the justice of the
case, the amounts which the relator and the lieutenant-governor are respectively entitled to
receive.
For the reason stated, I concur in the conclusion that the writ of mandamus should be
denied.
____________
19 Nev. 376, 376 (1887)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
JANUARY TERM, 1887.
____________
19 Nev. 376, 376 (1887) Hoye v. Sweetman
[No. 1248.]
JOHN HOYE, Appellant, v. SYDNEY SWEETMAN,
Respondent.
Water DitchDamagesInjunctionWhen Should be Refused.Where, in an action to recover damages and
to enjoin defendant from maintaining a ditch upon plaintiff's land, it appears that the land was of little
value; that the injury to the land was not real; that the damages were merely nominal; that defendant was
not insolvent and that plaintiff's remedy at law was adequate: Held, that the court did not err in refusing
to grant an injunction.
Appeal from the District Court of the Second Judicial District, Douglas County.
A. C. Ellis, D. W. Virgin, and J. R. Judge, for Appellant:
I. It is not within the power of the legislature to take private property except for public
use; to do otherwise would be a clear violation of the power delegated to the legislature
by the constitution.
property except for public use; to do otherwise would be a clear violation of the power
delegated to the legislature by the constitution. (Beekman v. Saratoga & S. R. R. Co., 3 Paige,
46; S. & V. R. R. Co. v. Stockton, 41 Cal. 147; Davis v. San Lorenzo R. R. Co., 47 Cal. 517;
Sanborn v. Belden, 51 Cal. 266; Pumpelly v. Green Bay Co., 13 Wall. 177; Curtis v.
Whipple, 24 Wis. 350; Hooker v. N. H. & N. Co., 14 Conn. 146.)
II. The testimony shows that the construction of defendant's ditch virtually rendered the
land valueless to plaintiff for any purpose whatever, and that the construction and operation
of said ditch by defendant was unauthorized, wrongful and unlawful. In such a case equity
will restrain continuous wrongful acts to prevent said wrongful acts from ripening into a
right. (Moore v. Clear Lake Water W. 68 Cal. 146; Moore v. Massini, 43 Cal. 389.)
R. M. Clarke, for Respondent:
The injury being trivial, the damage nominal and defendant solvent, the court did not err in
denying the injunction. (Jerome v. Ross, 7 Johns. Ch. 334; Wood v. Sutcliffe, 42 Eng. Ch.
165; Wason v. Sanbourn, 45 N. H. 171; Bassett v. Company, 47 N. H. 437; Thorne v.
Sweeney, 12 Nev. 251; Rivers v. Burbank, 13 Nev. 398.)
This action was brought to recover damages in the sum of four hundred dollars, and to
enjoin defendant from constructing or maintaining a ditch upon plaintiff's land. The cause
was tried before the court without a jury, and from the testimony the court found that the
defendant, with the knowledge and consent of plaintiff, entered upon plaintiff's land, and
commenced the construction of a small irrigating ditch; that, while defendant was so engaged
in constructing said ditch, plaintiff denied defendant's right, revoked all further authority or
license, and forbade defendant doing any further work thereon; that the land upon and over
which this ditch was constructed, was uninclosed, wild, unproductive, and of no value for
farming or grazing purposes, and, owing to the surrounding situation and circumstances, it
could not be used to any advantage or profit to plaintiff;
or profit to plaintiff; that defendant had fully completed the ditch over plaintiff's land prior to
the commencement of this suit; that, in constructing and maintaining the ditch, the defendant
damaged plaintiff to the extent of five dollars; that said damage was nominal merely, and was
not a real and substantial injury to plaintiff's land; that the maintenance and use of said ditch
by defendant in the future would not cause any real damage to plaintiff; that defendant was
not insolvent, or unable to respond in damages; and that plaintiff's remedy at law was
adequate and ample. Upon these findings the court rendered judgment in favor of plaintiff for
five dollars, required each party to pay his own costs, and held that plaintiff was not entitled
to an injunction.
Appellant claims that there is no testimony tending to show any license or permission on
his part for respondent to enter upon this land, and construct the ditch. In view of the
judgment as rendered by the court, it is immaterial whether such license was given or not. If
such license had been given and was not revoked, the judgment should have been in favor of
respondent. If not given, or given and afterwards revoked, as found by the court, then it was
the duty of the court to assess and fix the damages, which duty it has performed.
Testimony was submitted by appellant tending to show that the land upon which this ditch
was constructed was valuable for a mill-site. It is unnecessary to review the evidence upon
this point, as there is sufficient evidence in the record to sustain the finding of the court that
the land was of but little value; that the injury to the land was not real; and that the damages
were merely nominal.
Applying the principles of law announced by this court in Thorne v. Sweeney, 12 Nev.
251, to the facts of this case, we are of opinion that the court did not err in refusing to grant
an injunction.
____________
19 Nev. 379, 379 (1887) Young v. Brehe
[No. 1235.]
GEORGE YOUNG, Respondent, v. ADOLPH BREHE, Appellant.
EstoppelJudgment.In an action upon a promissory note, where the defense is made that the defendant
executed and delivered to the plaintiff a deed of lands, which was accepted by plaintiff in full payment of
the note sued on and other notes due from defendant to plaintiff, the record of a former action by the
same plaintiff against the same defendant, on one of the other notes, in which the same defense was
made, and where it was decided that the deed was never delivered and accepted as alleged, is conclusive
against the defendant.
IdemMotion for New Trial.The fact that a motion for a new trial is pending in the former action does not
affect the operation of the judgment therein as an estoppel.
IdemPleadingsEvidence.Where the plaintiff has had no opportunity to plead the matter of estoppel, it is
just as conclusive when admitted in evidence.
Henry K. Mitchell, for Appellant:
The judgment offered from White Pine county was not a final judgment, and did not
constitute a bar, but was immaterial and irrelevant in evidence. (Freem. Judg., Secs. 12, 36,
251; State v. Logan, 1 Nev. 509; Perkins v. Sierra Nevada S. M. Co., 10 Nev. 411; Hills v.
Sherwood, 33 Cal. 474; Lake v. King, 16 Nev. 217.)
I. The judgment in favor of respondent in the former action, being between the same
parties and upon and involving the same issues, was, as evidence, conclusive upon the
appellant, and it became a judicial determination of the fact that there had been no payment of
the notes sued upon in this action. (Big. on Estop. 45, 126; Simes v. Zane, 24 Penn. St. 242;
Betts v. Starr, 5 Conn. 550; Goodrich v. The City, 5 Wall. 566; Embury v. Conner, 3 N. Y.
511; White v. Coatsworth, 6 N. Y. 137; Castle v. Noyes, 14 N. Y. 329; Doty v. Brown, 4 N.
Y. 71; Dunham v Bower, 77 N. Y. 76;
19 Nev. 379, 380 (1887) Young v. Brehe
Bower, 77 N. Y. 76; Trask v. H. & N. R. R. Co., 2 Allen, 332; Adams v. Barnes, 17 Mass.
364; Shepardson v. Carey, 29 Wis. 34; Caperton v. Schmidt, 26 Cal. 479; Phelan v. Gardner,
43 Cal. 306; Parnell v. Hahn, 61 Cal. 131; McLeod v. Lee, 17 Nev. 103.)
II. The judgment in the former action was a final judgment. Nothing short of an appeal,
with an undertaking which stays execution, will destroy the judgment as evidence. (Civ. Pr.
Act, Secs. 339, 341, 342; Bank of N. A. v. Wheeler, 28 Conn. 433; Woodbury v. Bowman, 13
Cal. 635; Taylor v. Shew, 39 Cal. 536; Chase v. Jefferson, 1 Houst., Del., 257; Whart. on Ev.,
Sec. 781; Rogers v. Hatch, 8 Nev. 35; Cain v. Williams, 16 Nev. 426.)
III. If the evidence admitted, whether it be considered admissible or inadmissible, was
conclusive of the fact of nonpayment, and if the jury decided against such conclusive
evidence, the court below properly granted a new trial, and its order should be affirmed.
(Hayne, N., T., Sec. 98; Gunter v. Laffan, 7 Cal. 589; McCloud v. O'Neall, 16 Cal. 393;
Emerson v. County of Santa Clara, 40 Cal. 543; Bunten v. Orient Ins. Co., 8 Bos., 448.)
In May, 1884, defendant owed plaintiff nearly six thousand dollars, upon promissory notes
secured by mortgages, and for money paid out. On the second day of October, 1884, plaintiff
brought an action in the district court of Eureka county to recover two thousand six hundred
and forty-seven dollars, and interest, upon two promissory notes, and for money paid out.
That case was transferred to White Pine county for trial. In his answer defendant denied any
and all indebtedness, and alleged that he had paid plaintiff in full all sums of money claimed
in the complaint to be due. After trial upon the merits, plaintiff recovered a verdict and
judgment for two thousand three hundred and seventy-two dollars.
At the trial in this case it was admitted and agreed that, in the White Pine Case, defendant
had filed and served notice of intention to move for a new trial; that no statement had been
settled; that said motion was still pending; and that defendant had not executed any bond or
undertaking on appeal. Plaintiff instituted this action in the district court of Eureka county,
October 9, 1SS4, to recover two thousand six hundred dollars, and interest, alleged to be
due upon two other promissory notes.
19 Nev. 379, 381 (1887) Young v. Brehe
iff instituted this action in the district court of Eureka county, October 9, 1884, to recover two
thousand six hundred dollars, and interest, alleged to be due upon two other promissory notes.
In his answer, as in the White Pine Case, defendant denied any and all indebtedness, and
pleaded full payment of each note described in the complaint. The record shows, without
contradiction, that in the White Pine Case, to sustain his allegation of payment, defendant
insisted, and introduced much evidence tending to prove, that, on or about May 31, 1884, in
pursuance of an agreement entered into between plaintiff and defendant, he sold and
delivered to plaintiff certain personal property, and conveyed, by good and sufficient deed,
real estate in full payment and satisfaction of all indebtedness then existing against him in
favor of plaintiff, which included that claimed in the action then being tried, and also the
amount in question in this action; and that said sale and conveyance were accepted by
plaintiff in full payment and satisfaction of the entire indebtedness mentioned; that, on the
contrary, plaintiff claimed and insisted, and introduced evidence tending to prove, that the
attempted settlement was never consummated; that the deed was never delivered to, or
accepted by him, and therefore that the notes then in question had not been paid.
The verdict in that case must have turned on those issues, for there were no others, and it
was in favor of plaintiff. Yet in this action, between the same parties, those are the precise
questions which defendant endeavored to agitate again; and to that end he introduced
evidence substantially the same as that produced at the trial in White Pine.
After defendant had rested, for the purpose of proving what questions were submitted and
determined in the former case, plaintiff introduced in evidence copy of complaint, summons,
answer, order of removal to White Pine county for trail, verdict, and judgment in that case,
and also oral testimony showing what evidence was introduced by the respective parties in
support of the issues there made. The court charged the jury, among other things, that if they
found the verdict of the jury and the judgment of the court in the case tried in White Pine
were in favor of plaintiff upon the issues of delivery or non-delivery, acceptance or
non-acceptance of the said deed, and if they further found that defendant in this action relied
upon the execution and alleged delivery to plaintiff of the same deed, and claimed that the
said deed was executed and delivered at the same time testified to by him upon the trial
in White Pine county, then said verdict and judgment so rendered and entered in favor of
plaintiff, and against defendant, upon the trial of said action in White Pine county, were
conclusive upon defendant in this action, and their verdict must be for plaintiff;
19 Nev. 379, 382 (1887) Young v. Brehe
execution and alleged delivery to plaintiff of the same deed, and claimed that the said deed
was executed and delivered at the same time testified to by him upon the trial in White Pine
county, then said verdict and judgment so rendered and entered in favor of plaintiff, and
against defendant, upon the trial of said action in White Pine county, were conclusive upon
defendant in this action, and their verdict must be for plaintiff; unless they found from the
evidence that there was some payment made by defendant, of the notes sued on in this action,
other than the execution and delivery of said deed. The jury found for defendant, and
judgment was entered in his favor for his costs. Plaintiff moved for a new trial on the ground
that the evidence was insufficient to justify the verdict, and did not support the verdict. The
court ordered a new trial upon the ground stated in the motion, and defendant appeals from
that order.
The district court in White Pine county had jurisdiction of the parties and the subject
matter of that action. The court and the district court of Eureka county had concurrent
jurisdiction. In the two cases mentioned, the parties and the issues made by the pleadings
were the same. The facts put in issue and found by the jury in the White Pine Case in favor of
plaintiff, upon which recovery was based, were identical with those that defendant attempted
to establish in his favor in this action, and upon which he relied to defeat plaintiff's recovery.
The verdict and judgment in the former case established the fact, conclusively, that the deed
referred to was not delivered or accepted in payment or satisfaction of plaintiff's demands,
and consequently that the notes and claims in question in that action had not been paid
thereby. If there was not such delivery or acceptance of the deed as to constitute payment of
the demands in question in that action, the same was true of the notes involved in this,
because the transaction was entire, and the conveyance covered and satisfied the whole
indebtedness, if any part of it. Upon these facts the judgment in the former case, as evidence,
was conclusive against defendant upon the only material issues raised in this case. (McLeod
v. Lee, 17 Nev. 103; 1 Greenl. Ev. Sec. 534; Caperton v. Schmidt, 26 Cal. 496; Gardner v.
Buckbee, 3 Cow. 125; Burt v. Sternburgh, 4 Cow. 562; Burke v. Miller, 4 Gray, 115; Doty v.
Brown, 4 N. Y. 72; White v. Coatsworth, 6 N. Y. 139.)
19 Nev. 379, 383 (1887) Young v. Brehe
The estoppel was not pleaded in bar, but, when there has been no opportunity to do so, the
matter of estoppel, when admitted in evidence, is just as conclusive as it would have been if it
had been pleaded. (1 Greenl. Ev., 13th Ed., Sec. 531; Perkins v. Walker, 19 Vt. 148.) In this
case plaintiff had no opportunity to plead it. (Clink v. Thurston, 47 Cal. 28.) In fact, the only
reason suggested by counsel for appellant why the judgment in the former case was not
conclusive against defendant in this action, upon all material issues, that is to say, upon the
questions of delivery and acceptance of the deed, and consequently as to payment of the notes
in suit, is, that the judgment admitted in evidence was not final, and therefore not a bar;
because in that case a notice of intention to move for a new trial had been filed, and was still
pending, although no appeal had been taken, and no bond or undertaking on appeal or to stay
execution had been executed. We are referred to no authorities that sustain counsel's position,
and know of none. Although the question as to the effect of an appeal from a judgment of a
district court to the supreme court, with or without a stay-bond, is not in this case, yet this
court, on two occasions, has decided that the validity of such judgment is not suspended or
affected by a bare appeal. (Rogers v. Hatch, 8 Nev. 39; Cain v. Williams, 16 Nev. 430; See.
also, Nill v. Comparet, 16 Ind. 108; Burton v. Burton, 28 Ind. 343; Burton v. Reeds, 20 Ind.
87.) The pendency of motion for a new trial did not even stay execution. (People v. Loucks,
28 Cal. 70; Jones v. Spears, 56 Cal. 164; Hayne, N. T., Sec. 3.) The judgment disposed of
every issue in the case, and was final. (Perkins v. Sierra Nev. S. M. Co., 10 Nev. 405; Lake v.
King, 16 Nev. 216.)
Defendant did not claim that he had paid the notes in question, unless the execution and
alleged delivery of the deed of May 31, 1884, constituted such payment. Upon that point the
former judgment was conclusive against him, and the court did not err in granting a new trial.
Order appealed from affirmed.
____________
[No. 1258.]
THE STATE OF NEVADA, ex rel. WELLS DRURY, Relator, v. J. F. HALLOCK STATE
CONTROLLER, Respondent.
Salaries of State OfficersTitle of ActAmended StatuteUnconstitutional.The act to amend an act
reducing and regulating the salaries and compensation of certain state officers, justices of the supreme
court and attaches of the state government, (Stat. 1885, 99) is in violation of the provisions of the
constitution requiring that each law shall embrace but one subject which shall be briefly expressed in the
title (Art. 4, Sec. 17), and is absolutely null and void.
H. F. Bartine, for Relator:
I. The act under which respondent seeks to justify is unconstitutional. It purports to amend
something which did not exist. It involves the same principle as an attempt to amend an act
that has already been amended or repealed. Such amendments have invariably been held
inoperative and void.
(Draper v. Falley, 33 Ind. 465; Blakemore v. Dolan, 50 Ind. 203; Stingle v. Nevel, 9 Or.
65; Feibleman v. State, 98 Ind. 516.)
II. No subject is expressed in the title as required by section 17, article 4 of the
constitution.
The subject of an original or independent statute is the matter which it contains. The
subject of an amendatory statute is the act amended. (People v. Whitlock, 92 N. Y. 196; State
v. Laughlin, 75 Mo. 367; State v. Bankers' Ass'n, 23 Kan. 500; Mayor v. State, 30 Md. 118;
State v. Union, 33 N. J. L. 350.)
The title is fatally defective in another view, because it fails to refer to the title of the act
which it purports to amend. The title to which it does refer, is no title at all. The attempted
consideration of two distinct titles destroyed the identity of each. (Feibleman v. State, 98 Ind.
519.)
James D. Torreyson, for Respondent.
I. If the title of the original act is sufficient to include the words justices of the supreme
court, then the amendatory act contains nothing which is not germane to the original act, and
is therefore constitutional.
and is therefore constitutional. (State v. Bowers, 14 Ind. 195; Brandon v. State, 16 Ind. 197;
Swartwout v. Michigan, 24 Mich. 398; State v. Elvins, 3 Vroom. 362; Stone v. Brown, 54
Tex. 331.)
II. The section of the constitution referred to, should be given a liberal construction, and
the court should be satisfied beyond a reasonable doubt of the unconstitutionality of the law.
(Com. v. Bailey, 81 Ky. 396; Louisiana v. Pillsbury, 105 U. S. 278; Stone v. Brown, 54 Tex.
342.)
III. The words, justices of the supreme court, may be stricken out of the title and treated
as surplusage. (People v. Judge, 39 Mich. 195; Miller v. Hurford, 13 Neb. 13; State v.
Ranson, 73 Mo. 78.)
IV. Originally in the english courts the title was held to be no part of the act. (Cooley's
Cons. Lim., Sec. 143 et seq; Hadden v. Collector, 5 Wall. 110.)
Relator is a member of the assembly of this state. He seeks, by the writ of mandamus, to
compel respondent, as state controller, to draw a warrant in his favor at the rate of eight
dollars per day for each day of service, as provided in section 7 of An act reducing and
regulating the salaries and compensation of certain state officers and attaches of the state
government of Nevada, approved February 21, 1881. (Stat. 1881, 43; Gen. Stat. 2300.)
Respondent refuses to issue any warrant to relator, except for seven dollars per day for each
day of service, as provided in section 5 of An act to amend an act entitled An act reducing
and regulating the salaries and compensation of certain state officers, justices of the supreme
court, and attaches of the state government of Nevada,' approved February 21, 1881,
approved March 12, 1885. (Stat. 1885, 99; Gen. Stat. 2308.)
By a reference to the original act of 1881 it will be observed that certain state officers are
named. The justices of the supreme court are not included or named therein. The legislature
in 1885, after amending sections 1, 2, 3, 4, and 7 of the act of 1881, added a supplemental
section reducing the salary of the justices of the supreme court, and injected the words
justices of the supreme court into the title of the act of 1881 in such a manner that any
person unacquainted with the facts would naturally suppose, upon examination of the
amended act, that "justices of the supreme court" were included in the original act of
1SS1.
would naturally suppose, upon examination of the amended act, that justices of the supreme
court were included in the original act of 1881.
Is the amendatory act of 1885 constitutional? The constitution provides in plain, positive,
and mandatory terms that each law enacted by the legislature shall embrace but one subject,
and matter properly connected therewith, which subject shall be briefly expressed in the title;
and no law shall be revised or amended by reference to its title only, but in such case, the act
as revised, or section as amended, shall be re-enacted and published at length. (Art. 4, Sec.
17.)
In determining the question whether the amendatory act of 1885 violates any of the
provisions in this section of the constitution, it is deemed advisable to call attention to the fact
that the legislature of 1881 passed An act fixing the salaries of the justices of the supreme
court of the state of Nevada, approved February 19, 1881. (Stat. 1881, 43; Gen. Stat. 2291.)
It, therefore, appears that the legislature deemed it proper and wise to legislate upon the
subject of fixing the salaries of the justices of the supreme court, independent of the subject
of reducing and regulating the salaries and compensation of certain state officers and
attaches of the state government. Does it not necessarily follow, from the facts already
stated, that the attempt of the legislature in 1885 to amend the title of the act of 1881 by
inserting therein an additional subject was in direct violation of the first clause of the section
of the constitution above quoted? It may have been within the power of the legislature in
1881, as an original measure, to have adopted a title that would have been broad enough to
include both classes of state officers in one act; but, having adopted a limited title for each,
and passed separate acts, it was not within the power of any subsequent legislature to amend
the title of either act so as to include the matters legitimately pertaining to the other.
Under the provisions of the constitution, is it not made clear that the legislature of 1881,
under the title fixing the salaries of the justices of the supreme court, could not have
embodied any provisions in that act relating to the salaries of any other state officers, because
the title was limited to the subject therein named? Is it not equally as plain that the legislature
of 1881, in passing the act reducing and regulating the salaries and compensation of certain
state officers, did not intend to include justices of the supreme court or any state officers
than those named in the body of the act?
include justices of the supreme court or any state officers than those named in the body of the
act? If this be true, then does it not logically follow that in amending the act of 1881, the
legislature would have no power to include any class of state officers not named in the
original act?
As the legislature may make the title to an act as restrictive as they please, it is obvious
that they may sometimes so frame it as to preclude many matters being included in the act
which might with entire propriety have been embraced in one enactment with the matters
indicated by the title, but which must now be excluded because the title has been made
unnecessarily restrictive. The courts cannot enlarge the scope of the title. They are vested
with no dispensing power. The constitution has made the title the conclusive index to the
legislative intent as to what shall have operation. It is no answer to say that the title might
have been made more comprehensive, if in fact the legislature have not seen fit to make it
so. (Cooley, Const. Lim. 149.)
The manner and methods pursued in preparing the so-called amended act of 1885 are
extremely reprehensible, and have always been universally condemned. The constitutional
provisions were either overlooked or intentionally ignored. The legislature did not properly
refer to the act approved February 21, 1881. The title of that act is essentially different from
the title of the act specified in the amended act. The constitution declares that no law shall
be revised or amended by reference to its title only. This provision does not authorize the
legislature to dispense with a reference to the title of the act sought to be amended. It was
intended by the framers of the constitution that, in the revision or amendment of a statute,
the title of the act to be amended should be referred to. (Feibleman v. State, 98 Ind. 520.)
The proper method of complying with this clause of the constitution would be to correctly
copy the title of the act referred to. If any other course is pursued, it might lead to endless
confusion and uncertainty, which, among other things, the constitutional provision intended
to prevent. This is made plain by reading the entire section of the constitution. In order to
comply with its provisions not only must the title of the act to be amended be referred to, but
the sections as amended shall be re-enacted and published at length.
If the title of the original act had been correctly copied, leaving out justices of the
supreme court, then section 8 of the amended act of 1885, which relates exclusively to the
salary of the justices of the supreme court, would have to be declared unconstitutional,
because the title of the original act only embraced certain state officers and attaches of the
state government, and, as before stated, the justices of the supreme court were not named in
the act. We have already shown that an amendatory act cannot include any other subject than
that embraced in the act to be amended, and matter properly connected therewith.
Therefore, if the words justices of the supreme court could be treated as surplusage, and
stricken out of the title of the amended act, it would be our duty to declare all of the
provisions of the amended act relating to the salary and compensation of the state officers and
attaches of the state government named in the act of 1881 valid, and section 8, relating to the
salary of the justices of the supreme court, void. (State v. Bankers, Ass'n, 23 Kan. 501;
Burlington & M. R. R. Co. v. Saunders Co., 9 Neb. 511; Wisner v. Mayor of Monroe, 25 La.
Ann. 598; People v. Briggs, 50 N. Y. 565; Chiles v. Monroe, 4 Metc., (Ky.,) 75; State v.
Persinger, 76 Mo. 347; Stone v. Brown, 54 Tex. 340.)
The substance of all the authorities which discuss the effect of the law in cases where the
act is broader than the title is thus clearly stated by Judge Cooley: But, if the act is broader
than the title, it may happen that one part of it can stand because indicated by the title, while
as to the object not indicated it must fail. (Cooley, Const. Lim. 148.)
If the provisions of the amendatory act of 1885 only related to matters that were included
in the original act, then we would be authorized to treat the words justices of the supreme
court as surplusage, and exclude them from the title; because in such a case it would clearly
appear that no one had been, or could be, misled by the improper insertion of the words in the
title. Mistakes and errors in the use of words, which are not calculated to mislead as to the
subject of the act, will be regarded by the courts as mere clerical mistakes, in nowise
impairing the validity of the law. (School Directors Dist. No. 5 v. School Directors Dist. No.
10, 73 Ill., 249; Plummer v. People, 74 Ill. 363; City of Winona v. Whipple, 24 Minn. 65;
State v. Lake City, 25 Minn. 404; State v. Elvins, 32 N. J.
Law, 362; Comstock v. Judge of Superior Court, 39 Mich. 196; Wilson v. Spaulding, 16 Fed.
Rep. 304; Walnut v. Wade, 103, U. S. 683.)
But this is a different case. In the amended act under consideration, it is manifest that the
words justices of the supreme court did not creep into the title innocently, or by any mere
clerical mistake or inadvertency. They were inserted purposely and designedly. It was a
premeditated attempt to embody in one act amendments to two different and distinct acts,
relating to different subjects, by adding to the title of one act the subject-matter of the other,
so that one might be used as an inducement for the passage of the other. Its tendency and
evident design was to impose upon the members of the legislature by injecting the words
justices of the supreme court into the middle of the title in such a manner as to lead them to
believe that the words were embodied in the title of the original act, and was a part of the
statute sought to be amended; whereas, the truth was that the act fixing the salary of justices
of the supreme court had no connection whatever with it. One of the objects of the
constitutional provision was to avoid and prevent just such legislation as was attempted to be
accomplished in this case.
The practice of bringing together into one bill subjects diverse in their nature, and having
no necessary connection, with a view to combine in their favor the advocates of all, and thus
secure the passage of several measures, no one of which could succeed upon its own merits,
was one both corruptive of the legislature and dangerous to the state. * * * The framers of the
constitution meant to put an end to legislation of the vicious character referred to, which was
little less than a fraud upon the public, and to require that in every case the proposed measure
should stand upon its own merits, and that the legislature should be fairly satisfied of its
design when required to pass upon it. (People v. Mahaney, 13 Mich. 494.)
The object of this constitutional provision is obvious and highly commendable. A
practice had crept into our system of legislation of engrafting upon subjects of great public
benefit and importance, for local or selfish purposes, foreign and often pernicious matters;
and rather than endanger the main subject, or for the purpose of securing new strength for it,
members were often induced to sanction and actually vote for such provisions, which, if they
were offered as independent subjects, would never have received their support.
visions, which, if they were offered as independent subjects, would never have received their
support. In this way, the people of our state have been frequently inflicted with evil and
injurious legislation. * * * To remedy such and similar evils was this provision inserted into
the constitution, and we think wisely inserted. (Davis v. State, 7 Md. 160.)
All the authorities upon this subject are substantially to the same effect. (State v. Silver, 9
Nev. 231; State ex rel. Coffin v. County Com., ante, 332; Sun Mut. Ins. Co. v. Mayor of New
York, 8 N. Y. 253; Stewart v. Father Matthew Soc., 41 Mich. 72; State v. McCracken, 42
Tex. 385; Walker v. Caldwell, 4 La. Ann. 297; State v. Town of Union, 33 N. J. L. 352; State
v. Ransom, 73 Mo. 78; Cooley, Const. Lim., 142, and authorities there cited.)
In State v. Lancaster Co., 17 Neb. 85, where the legislature in the title of an amended act,
also inserted an additional object to repeal other provisions of the statute having no relation to
subjects embraced in the original act, the court declared that the attempted repeal was a
nullity, but held the other portions of the act valid upon the ground that the invalid portion
did not have, and could not have had, the effect to induce the legislature to pass the
amendment in question; but, in this connection, the court expressly declared that the rule
would be different in cases where it is impossible, from an inspection of the act itself, to
determine which part of the act is void and which valid.
In the present case it is evident that one portion of the act was specially designed as an
inducement to pass the other, and it is impossible for us to determine, from an inspection of
the act itself which portion, if either, would have passed without the other. It therefore
becomes our plain and imperative duty to declare the entire amendatory act of 1885
absolutely null and void.
If the title to the act actually indicates, and the act itself actually embraces, two distinct
objects, when the constitution says it shall embrace but one, the whole act must be treated as
void, from the manifest impossibility in the court choosing between the two, and holding the
act valid as to the one and void as to the other. (Cooley, Const. Lim. 148. See, also, Davis v.
State, supra; People v. Hills, 35 N. Y. 452.)
Let the writ issue as prayed for in relator's petition.
____________
19 Nev. 391, 391 (1887) State v. Tufly
[No. 1260.]
THE STATE OF NEVADA ex rel. C. C. STEVENSON, et al., Relators, v. GEORGE
TUFLY, STATE TREASURER, Respondent.
ConstitutionAmendmentEntry on Journals of Legislature.An amendment was proposed to the constitution
of Nevada, authorizing the investment of moneys pledged to educational purposes in the bonds of any of
the states of the United States, but no entry of the same was made upon the journal of either house of the
legislature: Held, that this omission was fatal to the adoption of the amendment.
J. F. Alexander, Attorney-General, for Relators.
Wm. M. Stewart, for Respondent.
By the Court, Belknap, J.:
This is an amicable proceeding brought for the purpose of testing the validity of an
amendment to the constitution authorizing the investment of moneys pledged to educational
purposes, in the bonds of any of the states of the United States.
Section 1 of article 16 of the constitution prescribes how amendments may be made
without calling a convention. It reads as follows: Any amendment or amendments to this
constitution may be proposed in the senate or assembly; and, if the same shall be agreed to by
a majority of all the members elected to each of the two houses, such proposed amendment or
amendments shall be entered on their respective journals, with the yeas and nays taken
thereon, and referred to the legislature then next to be chosen, and shall be published for three
months next preceding the time of making such choice. And if, in the legislature next chosen
as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all
the members elected to each house, then it shall be the duty of the legislature to submit such
proposed amendment or amendments to the people in such manner, and at such time, as the
legislature may prescribe; and, if the people shall approve and ratify such amendment or
amendments by a majority of the electors qualified to vote for members of the legislature
voting thereon, such amendment or amendments shall become a part of the constitution."
19 Nev. 391, 392 (1887) State v. Tufly
prove and ratify such amendment or amendments by a majority of the electors qualified to
vote for members of the legislature voting thereon, such amendment or amendments shall
become a part of the constitution.
At the eleventh session of the legislature, the following proposed amendment was agreed
to:
Resolved by the senate, the assembly concurring, that section 3 of article 11 of the
constitution of the state of Nevada be amended so as to read as follows:
Sec. 3. All lands, including the sixteenth and thirty-sixth sections in every township,
donated for the benefit of the public schools in the act of the thirty-eighth congress to enable
the people of the territory of Nevada to form a state government; the thirty thousand acres of
public lands granted by an act of congress approved July 2, A. D. 1862, for each senator and
representative in congress; and all proceeds of lands that have been or may hereafter be
granted or appropriated by the United States to this state, and also the five hundred thousand
acres of land granted to the new states under the act of congress distributing the proceeds of
the public lands among the several states of the Union, approved A. D. 1849, provided that
congress make provisions for or authorize such diversion to be made for the purpose herein
contained; all estates that may escheat to the state; all of such per cent. as may be granted by
congress on the sale of lands; all fines collected under the penal laws of this state; all property
given or bequeathed to the state for educational purposes; and all proceeds derived from any
or all said sources, shall be, and the same are hereby, solemnly pledged for educational
purposes, and shall not be transferred to any other fund for other uses, and the interest thereon
shall from time to time be apportioned among the several counties in proportion to the
ascertained number of the persons between the ages of six and eighteen years in the different
counties, and the legislature shall provide for the sale of floating land warrants to cover the
aforesaid lands, and for the investment of all proceeds derived from any of the above
mentioned sources, in United States bonds or bonds of this state, or the bonds of such other
state or states as may be selected by the boards authorized by law to make such investments;
provided, that the interest only of the aforesaid proceeds shall be used for educational
purposes, and any surplus interest shall be added to the principal sum; and, provided
further, that such portions of said interest as may be necessary may be appropriated for
the support of the state university."
19 Nev. 391, 393 (1887) State v. Tufly
interest shall be added to the principal sum; and, provided further, that such portions of said
interest as may be necessary may be appropriated for the support of the state university.
No entry of the proposed amendment was made upon the journal of either house, and the
question presented is whether or not this omission was fatal to the adoption of the
amendment.
An inquiry based upon similar facts and constitutional provisions was recently presented
to the supreme court of Iowa. In pronouncing the amendment invalid, the court employed the
following language, which we adopt: The object of the provision (entering the amendment
upon the journals) cannot be doubted or misunderstood. It is to preserve, in the manner
indicated, the identical amendment proposed, and in an authentic form, which, under the
constitution, is to come before the succeeding general assembly. No better mode could have
been adopted, when it is considered that, to be effective, the proposed amendment must be
agreed to by the succeeding general assembly. This thought is much strengthened by the
consideration that the proposed amendment is only required to be entered on the journals of
the first general assembly which acts thereon. This distinction, to our minds, is significant,
and enhances the importance of the constitutional injunction that the proposed amendment
shall be entered on the journals of both houses of the general assembly which first agrees
thereto. (Koehler v. Hill, 60 Iowa, 543.)
The court considered the omission fatal, notwithstanding a vote of the people had
approved the proposed amendment, and declared that, if any provision of the constitution
should be regarded as mandatory, it is when it provides for its own amendment.
The remarks of Judge Cooley made in considering the construction to be placed upon
constitutional provisions are pertinent and instructive. He says: In all we have said upon this
subject, we have assumed the constitutional provision to be mandatory. * * * The fact is this:
That whatever constitutional provision can be looked upon as directory merely, is very likely
to be treated by the legislature as if it were devoid even of moral obligation, and to be
therefore habitually disregarded. To say that a provision is directory seems, with many
persons, to be equivalent to saying that it is not law at all.
19 Nev. 391, 394 (1887) State v. Tufly
That this ought not to be so must be conceded; that it is so we have abundant reason and good
authority for saying. If, therefore, a constitutional provision is to be enforced at all, it must be
treated as mandatory. And, if the legislature habitually disregarded it, it seems to us that there
is all the more urgent necessity that the courts should enforce it. And it also seems to us that
there are few evils which can be inflicted by a strict adherence to the law so great as that
which is done by the habitual disregard, by any department of the government, of a plain
requirement of that instrument from which it derives its authority, and which ought, therefore,
to be scrupulously observed and obeyed. (Cooley, Const. Lim. 183.)
In Collier v. Frierson, 24 Ala. 108, it appeared that the legislature had proposed eight
different amendments to be submitted to the people at the same time. The people had
approved them, and all the requisite proceedings to make them a part of the constitution had
been had, except that, in the subsequent legislature, the resolution for their ratification had by
mistake omitted to recite one of them. On the question whether this one had been adopted, we
quote from the opinion of the court: The constitution can be amended in but two ways, either
by the people, who originally framed it, or in the mode prescribed by the instrument itself. If
the last mode is pursued, the amendments must be proposed by two-thirds of each house of
the general assembly; they must be published in print at least three months before the next
general election for representatives, it must appear from the returns made to the secretary of
state that a majority of those voting for representatives have voted in favor of the proposed
amendments; and they must be ratified by two-thirds of each house of the next assembly after
such election, voting by yeas and nays, the proposed amendments having been read at each
session three times on three several days in each house. We entertain no doubt that, to change
the constitution by any other mode than by a convention, every requisition which is
demanded by the instrument itself must be observed, and the omission of any one is fatal to
the amendment. We scarcely deem any argument necessary to enforce this proposition. The
constitution is the supreme and paramount law. The mode by which amendments are to be
made under it is clearly defined. It has been said that certain acts are to be done, certain
requisitions are to be observed, before a change can be effected.
19 Nev. 391, 395 (1887) State v. Tufly
before a change can be effected. But to what purpose are those acts required, or those
requisitions enjoined, if the legislature or any department of the government can dispense
with them? To do so would be to violate the instrument which they are sworn to support, and
every principle of public law and sound constitutional policy requires the courts to pronounce
against any amendment which is not shown to have been made in accordance with the rules
prescribed by the fundamental law. (Cooley, Const. Lim., 40.)
At the last general election a majority of the electors of the state ratified the amendment,
and we were asked at the argument to give to this fact such consideration as it may deserve.
The suggestion is doubtless based upon the fact that, under our form of government, all
political power originates with the people. The bill of rights contained in our constitution
declares that all political power is inherent in the people. Government is instituted for the
protection, security, and benefit of the people; and they have the right to alter or reform the
same whenever the public good may require it.
In commenting upon reservations of this character, Judge Cooley says: Although, by their
constitutions, the people have delegated the exercise of sovereign powers to the several
departments, they have not thereby divested themselves of the sovereignty. They retain in
their own hands, so far as they have though it needful to do so, a power to control the
governments they create, and the three departments are responsible to, and subject to be
ordered, directed, changed, or abolished by them. But this control and direction must be
exercised in the legitimate mode previously agreed upon. The voice of the people, in their
sovereign capacity, can only be of legal force when expressed at the times and under the
conditions which they themselves have prescribed and pointed out by the constitution, or
which, consistently with the constitution, have been prescribed and pointed out for them by
statute; and if by any portion of the people, however large, an attempt should be made to
interfere with the regular working of the agencies of government at any other time or in any
other mode than as allowed by existing law, either constitutional or statutory, it would be
revolutionary in character, and must be resisted and repressed by the officers who, for the
time being, represent legitimate government. (Cooley. Const. Lim. 751.)
19 Nev. 391, 396 (1887) State v. Tufly
We conclude that amendments to the constitution can be made only in the mode provided
by the instrument itself. A proposed amendment, if agreed to by a majority of each house of
the legislature, must be entered upon the journals, so that no doubt may arise as to its
provisions. The yeas and nays must be entered in order to ascertain whether the requisite
number have agreed to the amendment. It is then to be referred to the next legislature, and is
to be published for three months proceeding the election, so that the members may, if the
people desire, be elected specially to consider it. And, finally, the proposed amendment must
be submitted by the legislature to a vote of the people. These provisions were intended to
secure care and deliberation on the part of the legislature and people, and are exclusive and
controlling.
The amendment was not constitutionally adopted. The statute enacted for the purpose of
executing its provisions is unconstitutional, and respondent properly refused to comply with
its requirements. Mandamus denied.
____________
19 Nev. 396, 396 (1887) State v. Dovey
[No. 1259.]
THE STATE OF NEVADA ex rel. S. H. WRIGHT, Relator, v. W. C. DOVEY,
SUPERINTENDENT OF PUBLIC INSTRUCTION, Respondent.
School FundApportionment ofChildren in Orphans' Home Not to be Counted.In the apportionment of the
school fund as required by the constitution, (Art. 11, Sec. 3) the wards of the state at the orphans' home,
should not be counted as a part of the children of Ormsby county, as their education is provided for by
the state at the orphans' home, and they have not the right to attend the public schools.
Trenmor Coffin and J. D. Torreyson, for Relator.
J. F. Alexander, Attorney-General, for Respondent.
By the Court, Leonard, C. J.:
There are seven hundred and thirty-nine persons in Carson school-district No. 1, between
six and eighteen years of age, of whom fifty are wards of the state in the orphans' home.
In making his apportionment of the state school moneys to the county of Ormsby,
respondent refused, and refuses, to include the said fifty wards among the persons
entitled to be considered in the distribution of the public-school moneys, and made said
apportionment upon the basis of six hundred and eighty-nine persons between six and
eighteen years of age in said district, instead of seven hundred and thirty-nine.
19 Nev. 396, 397 (1887) State v. Dovey
school-district No. 1, between six and eighteen years of age, of whom fifty are wards of the
state in the orphans' home. In making his apportionment of the state school moneys to the
county of Ormsby, respondent refused, and refuses, to include the said fifty wards among the
persons entitled to be considered in the distribution of the public-school moneys, and made
said apportionment upon the basis of six hundred and eighty-nine persons between six and
eighteen years of age in said district, instead of seven hundred and thirty-nine. Relator applies
for a writ of mandamus to compel respondent to make his apportionment upon the basis of
the latter number.
The constitution of the state provides that the interest on school moneys shall be
apportioned among the several counties in proportion to the ascertained number of the
persons between the ages of six and eighteen years, in the different counties. (Const. Art. 11,
Sec. 3.) Statutes have been passed, from time to time, providing for apportionment upon the
same basis. It is the duty of the school census marshal to take annually, between the first and
thirty-first days of May, inclusive, a census of all children under eighteen and over six years
of age, who are residents of his district on the first day of May. He must include in his report
all children of the district that are absent attending institutions of learning, and whose parents
or guardians are residents of the district. He must not include non-resident children, who are
attending, in his district, institutions of learning, benevolent institutions, such as deaf, dumb,
blind, and orphan asylums, nor any other children not actually residing in the district. (Gen.
Stat. 1314, 1317, 1318.)
In 1869 the legislature established, and caused to be erected, a state orphans' home, in
Carson City, Ormsby county. (Stat. 1869, 111.) It is within Carson school district No. 1. Its
administration is under the control of a board, consisting of the superintendent of public
instruction, surveyor-general and state treasurer. The board has power, among other things, to
appoint a superintendent and matron, who shall be man and wife, and a teacher, who shall
reside at the home, and have charge of the educational department; said teacher to be duly
qualified according to the provisions of the state school law. The board has power, also, to
employ all other suitable persons necessary to conduct the affairs of the home. All children
admitted to the state orphans' home must, under the direction of the board of directors, be
taught the usual branches of an english education, and the male orphans must be taught
useful trades and occupations, and engaged in useful employments, as the board of
directors shall order.
19 Nev. 396, 398 (1887) State v. Dovey
state orphans' home must, under the direction of the board of directors, be taught the usual
branches of an english education, and the male orphans must be taught useful trades and
occupations, and engaged in useful employments, as the board of directors shall order. The
female orphans must be taught the useful occupations of housewifery, and such other useful
occupations as the board of directors may provide. All orphans duly admitted to the home
thereby become wards of the state, and are entitled, under the provisions of the statute, to the
care, protection and guardianship of the state. For such care, protection and guardianship, the
state is entitled to the services of its wards, and has the right to train and educate them for
useful places in society, and such rights of the state are superior to the claims of any and all
relations or persons, resident or non-resident. (Gen. Stat. 1465, 1466, 1469, 1471.)
Under the law as it now stands, the legislative intent to educate the orphans at the home,
and not in the public schools, is plain. By the method of education adopted and prescribed by
the legislature, these wards are as thoroughly withdrawn from the public schools as they
would be if they were to be sent to another state to be educated. They are not to be sent to the
common schools, there to pursue the studies prescribed by the state board of education, but
they are to be taught the usual branches of an english education at the home, under the
direction of the board of directors. Under the statute, it is as much the duty of the board of
directors to educate the orphans under their charge, both before and after they are six years of
age, as it is to clothe or feed them; and to that end to appoint a teacher, who must reside at the
home, and have charge of the educational department, as it is to appoint a superintendent and
matron. The specific mention of the method of education to be pursued, excludes the idea that
the board are at liberty to adopt any other.
Upon this question our conclusion is that, under the law now existing, these wards must be
taught at the home by a teacher who resides there, and that they are not entitled to attend the
public schools of Carson City, or any others, so long as they remain inmates of the home.
Having arrived at the conclusion just stated, is it the duty of respondent to include or
exclude the wards in question in making his apportionment? We freely admit that the
language of the constitution and statute is broad enough to sustain relator's claim that
they should be included;
19 Nev. 396, 399 (1887) State v. Dovey
of the constitution and statute is broad enough to sustain relator's claim that they should be
included; but it does not necessarily follow from that fact that persons in their situation were
intended to be included, either by the framers of the constitution or the legislature. In
construing constitutions and statutes, the first and last duty of courts is to a ascertain the
intention of the convention and legislature; and in doing this they must be governed by well
settled rules, applicable alike to the construction of constitutions and statutes. All laws
should receive a sensible construction. General terms should be so limited in their application
as not to lead to injustice, oppression or an absurd consequence. It will always, therefore, be
presumed that the legislature intended exceptions to its language which would avoid results
of this character. The reason of the law, in such cases, should prevail over the letter. (U. S. v.
Kirby, 7 Wall. 482. And see State v. McKenney, 18 Nev. 189; State v. Kruttschnitt, 4 Nev.
178.)
It was the intention of the framers of the constitution, and of the legislature, to make as
equitable and equal division of the public school moneys as possible, and the method of
division adopted was not an arbitrary one. It was based upon reason and justice. The
controlling thought was to give to each county an equal sum for each child in the county
entitled to attend and enjoy the public schools; and the principal object in taking the census at
the same time in all the districts is to ascertain the number of such children, in order that an
equal division of a common fund may be made. If two counties have an equal number of
children entitled to attend the public schools, reason and justice demand that they shall share
equally in the public funds; but if one has not only the same number as another, who are so
entitled, but fifty more also, who are prohibited from attending, no reason can be given for
including the fifty in the apportionment. They are no tax upon the public school fund. The
school is not affected by them. It would be the same if they did not exist, or if they resided in
a foreign country; and it would be as unjust and unreasonable to allow a district to receive
money because of their residence therein, as it would to permit an equal sum to be given by
reason of the same number of adults residing there. Tribal indian children have not been
returned by census marshals, or considered by superintendents of public instruction in making
their apportionment, for the reason, doubtless, that they have not been considered
entitled to enjoy the privileges of public schools; because, in all other respects, they are
within the constitution and statutes.
19 Nev. 396, 400 (1887) State v. Dovey
tionment, for the reason, doubtless, that they have not been considered entitled to enjoy the
privileges of public schools; because, in all other respects, they are within the constitution and
statutes. Now, if the reason stated is the true oneif they are not entitled to attend the public
schoolsthen it would be just as reasonable, and as much within the letter and spirit of the
constitution and statutes, to allow Ormsby, or any other county, to draw public school moneys
on account of the numerous indian children within its limits, at least without previous
legislative action, as it would be to permit the same to be done in case of the orphan children
at the home, who are likewise prohibited by existing laws from attending the public schools.
If we stick to the letter of the constitution and statutes, instead of the reason of each, then
census marshals must return indians like other children, and superintendents of public
instruction must consider them in making their apportionments. On the other hand, if we
adhere to the reason of the law, then, if indian children are not entitled to public school
privileges, superintendents should not include them in making their apportionments.
Our opinion is that neither the framers of the constitution nor the legislature intended to
allow public school moneys to any county for persons not entitled to attend the public schools
therein, and that, under existing laws, the children of the orphans' home are not so entitled.
Mandamus denied.
____________
[No. 1250.]
F. A. A. FREVERT, Respondent, v. S. T. SWIFT, et al.,
Appellants.
Bond to Stay ExecutionApproval of.The district judge of the district where the cause was triedunless
disqualifiedmay approve the undertaking to stay execution, notwithstanding the fact that the case was
tried before another judge.
JudgmentComplaintVarianceFrivolous Objections.An objection to the admission of a judgment roll, in
evidence, on the ground of variance between the averments of the complaint and the judgment roll, where
one named the amount of the judgment and costs in solido and the other stated the amounts separately, is
frivolous.
UndertakingGood and Sufficient.Appellants in order to procure a stay of execution, on a judgment for
seven hundred and seventy-eight dollars, pending a motion for a new trial, gave an undertaking
conditionedamong other thingsthat if the new trial was denied, the principal should give a good and
sufficient undertaking on appeal: Held, that an undertaking on appeal, given by the principal, in the sum
of three hundred dollars was not a good and sufficient undertaking within the contemplation of the
provisions of the previous undertaking.
A. C. Ellis, and J. R. Judge, for Appellants.
Robert M. Clarke, for Respondent.
Respondent, in September, 1885, recovered a judgment against appellant Swift for seven
hundred and sixty-seven dollars and thirteen cents, and eleven dollars and seventy cents, costs
of suit. The cause was tried in Ormsby county, before Hon. M. A. Murphy, district judge of
the third judicial district. For the purpose of procuring a stay of execution on said judgment,
pending the hearing of a motion for a new trial therein, Swift, as principal, and appellant
Sweeny and Phillips, as sureties, executed an undertaking in the sum of one thousand five
hundred and fifty-seven dollars and seventy-five cents, double the amount of the judgment,
conditioned that said Swift will pay the amount of said judgment, and all costs that may be
awarded against him on the hearing of said motion, should a new trial be denied, unless upon
the decision of said motion, if a new trial be denied, said Swift shall give a good and
sufficient undertaking on appeal to the supreme court of the state of Nevada, then this
obligation to be void; otherwise to remain in full force and effect. This undertaking was
approved by Hon. T. D. Edwards, district judge of the second judicial district, and an order
was thereupon made by said judge, staying the execution of said judgment pending the
hearing of the motion for new trial. The motion for a new trail was denied. Appellant Swift
thereafter filed an undertaking on appeal in the sum of three hundred dollars, in the form
required by the statute, for the payment of damages and costs which might be awarded
against him on appeal.
costs which might be awarded against him on appeal. The questions presented upon this
appeal by appellants are: FirstDid the court err in overruling a demurrer to the complaint?
SecondDid the court err in permitting respondent to introduce in evidence the judgment roll
in the case of Frevert v. Swift? ThirdCan appellants be held liable upon the conditions
named in the undertaking?
1. It is argued that the demurrer should have been sustained, because the undertaking to
stay execution was not approved by the judge who tried the cause in which said undertaking
was given; and it is stated by counsel for appellants that the judge who approved the same
was disqualified from presiding at the trial of the cause. It does not appear from any
averment in the complaint that the judge who approved the undertaking was disqualified;
hence this point could not be raised by a demurrer. The question whether the judge was
disqualified was a question of fact, to be determined from the evidence submitted at the trial
of this cause. In this connection we deem it proper to state that we have carefully examined
the statement on appeal, and have been unable to find any evidence, or the statement of any
fact, touching the disqualification of the district judge. It is true that counsel for appellant
objected to the introduction of said bond in evidence, upon the ground that said bond was
not approved as required by rule 26 of said court, it appearing that Hon. T. D. Edwards, who
was disqualified from trying said cause, * * * had approved said bond; but this cannot be
considered as evidence, or as a statement of a fact. How did it appear that the judge was
disqualified? It did not appear from any of the averments in the complaint. It did not appear
from any statement in the undertaking. There is no such statement in the judgment roll, and
there is no evidence or statement of such fact, if it be a fact, in the statement on appeal. If
counsel wish to establish a fact on which this court can act, they must do it by the
introduction of evidence, the admission of the opposite counsel, a certificate of the judge who
tried the case, or a positive statement of the circumstances as having in some way been shown
on the trial. (State v. Manhattan S. M. Co., 4 Nev. 329; Doll v. Anderson, 27 Cal. 252; Clark
v. Sawyer, 48 Cal. 141; Doyle v. Franklin, 48 Cal. 540.) Rule 26 of the district court does not
require that the undertaking to stay execution shall be approved by the judge who tried the
case.
judge who tried the case. Its provisions are that no stay of execution upon motion for new
trial shall be granted except on the giving of a good and sufficient undertaking, in manner
and form as other undertakings are given, to be approved by the judge * * *. Under the
provisions of this rule the district judge of the district where the cause was tried, unless
disqualified, could approve the undertaking, notwithstanding the fact that the case had been
tried before another judge.
2. The objection to the admission of the judgment roll in Frevert v. Swift, on the ground
of a variance between the averments of the complaint and the judgment roll, is frivolous. The
complaint alleges that the plaintiff in said action recovered a judgment for seven hundred and
seventy-eight dollars and eighty-three cents. The judgment roll shows that plaintiff recovered
a judgment for seven hundred and sixty-seven dollars and thirteen cents, and costs taxed at
eleven dollars and seventy cents, making a total of seven hundred and seventy-eight dollars
and eighty-three cents, as averred on the complaint.
3. The undertaking on appeal in the sum of three hundred dollars was not sufficient to stay
execution on the judgment. (Gen. Stat. 3364.) It was not a good and sufficient undertaking
on appeal, within the contemplation of the provisions of the undertaking given by appellants
to secure a stay of execution pending a motion for a new trial. As the conditions of the bond
were not complied with, it follows that the sureties thereon were not released from liability.
____________
19 Nev. 404, 404 (1887)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA,
APRIL TERM, 1887.
____________
19 Nev. 404, 404 (1887) Patchen v. Keeley
[No. 1237.]
C. H. PATCHEN, Appellant, v. J. V. KEELEY, et al.,
Respondents.
Statement on AppealWhen May be Settled.A party having the right to appeal may, within the statutory time,
file his statement on appeal and have it settled by the judge, even though the appeal be perfected before
the statement is prepared. James v. Leport, ante, 174, affirmed.
EvidenceHarmless Errors.Error in excluding evidence is cured by its subsequent admission.
Mining ClaimsTrespassDamages.In an action for trespass upon plaintiff's mine, the wrongful entry is the
gist of the action, and evidence of damage to the claim outside of ores converted to defendants' use is not
admissible unless specially pleaded.
Idem.The evidence of damages accruing between the date of the commencement of the action and the date of
trial is not admissible.
NonsuitPresumptions.Upon appeal from an order granting a nonsuit, it is the duty of the court to take as
proven every fact which the plaintiff's evidence tended to prove, and which was essential to his recovery,
and give him the benefit of all legal presumptions arising therefrom.
IdemMining ClaimsPrior LocationEvidence.Testimony to the effect that plaintiff's claim was located
upon the old Washington and Creole mining claim was not evidence of a valid prior location, or even of
an attempted prior location under the mining laws.
IdemPossession of Mining ClaimTitleEvidence.The evidence for plaintiff tended to show that plaintiff
had discovered and located his mining claim under the laws of the United States and the Ely mining
district, and was in actual possession thereof up to the date of defendants' alleged wrongful entry.
Defendants did not attempt to inquire into the nature of plaintiff's possession upon cross-examination, nor
show title in themselves: Held, that plaintiff's evidence entitled him to maintain the action, and that a
nonsuit was improperly granted.
Nominal DamagesScreenings.Plaintiff was entitled to nominal damages, even it should be held that the
screenings, whose removal constituted the main injury to plaintiff, did not pass to him upon his location
of the claim.
The facts are stated in the opinion, with the exception of the question raised as to the
statement on appeal, and this is embodied in the first head note.
Trenmor Coffin and Geo. S. Sawyer, for Appellant:
I. The court erred in excluding the evidence of plaintiff as to his actual occupation and
possession of the locus in quo. Actual possession is prima facie evidence of title, and, even if
wrongful, is sufficient to base an action upon as against a naked trespasser, and no rights are
claimed by defendants in their answer. (Atwood v. Fricot, 17 Cal. 38; English v. Johnson, 17
Cal. 107; Hess v. Winder, 30 Cal. 349; Sears v. Taylor, 4 Colo. 38; Campbell v. Rankin, 99
U. S. 261; Burt v. Panjaud, 99 U. S. 180; Courchaine v. Bullion M. Co., 4 Nev. 369.)
II. The court erred in excluding the evidence offered by plaintiff as to the damage to the
realty, outside of what had been taken away. In trespass quare clausum fregit the injury to the
realty is the gist of the action. (2 Gr. Ev., Sec. 613, et seq. Atwood v. Fricot, 17 Cal. 38.)
III. The court should have allowed proof of damages up to the time of trial, when offered
by plaintiff.
the time of trial, when offered by plaintiff. (2 Gr. Ev., Sec. 268a; Hicks v. Herring, 17 Cal.
566; De La Guerra v. Newhall, 53 Cal. 141.)
IV. A defendant in trespass cannot show title in a third party unless he pleads it and
justifies under it. (2 Gr. Ev. 543, note 3; 2 Gr. Ev., Sec. 274; 2 Estee's Pl. 562, note 5; 2
Estee's Pl. 412, note 61, et seq.)
V. The court erred in sustaining the defendants' motion for a non-suit. Both actual and
constructive possession of the locus in quo was shown by the plaintiff. Such possession gives
a title as against all persons except the government. (420 M. Co. v. Bullion M. Co., 9 Nev.
249; 420 M. Co. v. Bullion M. Co., 3 Saw. 635; Copp's Mineral Lands, 357; Trimble v.
Woodhead, 102 U. S. 649.)
VI. The breaking of the close, the entry and extraction and reductions of ores and
minerals, without the leave or license of plaintiff, was conclusively shown, and some damage
must necessarily follow. (Empire G. M. Co. v. Bonanza G. M. Co., 67 Cal. 406.)
Everything pertaining to the ground is a part thereof. (2 Bla. Com., Chap. 2; Vansickle v.
Haines, 7 Nev. 283, et seq.; Treadway v. Sharon, 7 Nev. 41; Rogers v. Cooney, 7 Nev. 213;
Bullion M. Co. v. Croesus G. & S. M. Co., 2 Nev. 184; Moore v. Smaw, 17 Cal. 201, 224;
Brown v. Quartz M. Co. 15 Cal. 158.)
I. The pretended statement on appeal was filed and served, and settled by the judge after
the appeal had been taken. A perfected appeal gives the court jurisdiction. If this court has
jurisdiction, there can be none at the same time vested in the lower court. (Caples v. C. P. R.
R. Co., 6 Nev. 265; Lamburth v. Dalton, 9 Nev. 64; Dean v. Pritchard, 9 Nev. 232; Thomas
v. Sullivan, 11 Nev. 282.)
II. Actual possession of a mining claim will not be sufficient in the absence of a
compliance with the local rules and regulations. The exclusion of the evidence of possession
was not an error prejudicial to the appellant. (Golden Fleece G. & S. M. Co. v. The Cable
Con. G. & S. M. Co., 12 Nev. 312.) The cases referred to by appellant from California were
based upon a state of facts existing prior to the passage of any mining legislation by congress.
III. Under the pleadings in this case we assert that respondents could have shown title in
themselves or in the Meadow Valley Mining company, and could have followed this with
evidence showing a rightful possession in themselves under such company. This would not,
under the rules of pleading in this state, have been new or affirmative matter. (Jackson v. The
Feather River W. Co., 14 Cal. 19; Woodworth v. Knowlton, 22 Cal. 164; Wilson v. Cleveland,
30 Cal. 192; Hawkins v. Borland, 14 Cal. 413; Marshall v. Shafter, 32 Cal. 177; Stone v.
Bumpus, 40 Cal. 428; Bruck v. Tucker, 42 Cal. 346; Wheeler v. Billings, 38 N. Y. 263;
Greenfield v. Mass. Ins. Co., 47 N. Y. 430; Mather v. Hutchinson, 25 Wis. 27; Lain v.
Shepardson, 23 Wis. 224; Bliss Code Pl., Sec. 327.)
IV. Titles are not created or defeated by presumptions of the character relied on by
appellant. Upon the general proposition we cite: (Belk v. Meagher, 104 U. S. 279. As to
presumptions we refer generally to: Whar. Ev., Sec's. 1284, 1285, 1286; Currier v. Gale, 9
Allen, 522; Magee v. Scott, 9 Cush. 148; Hansen v. Chiatovich, 13 Nev. 395.)
This was an action of trespass quare clausum fregit. Plaintiff alleged in his complaint that
since January 1, 1883, he had been, and then was, the owner and in possession of the Gold
Lode mining claim, particularly described; that on the ninth day of March, 1885, without
leave or license of plaintiff, defendants broke and entered said described close, and
commenced to dig up, reduce, and remove, and had ever since continued to do so, large
quantities of earth, rock and earthy material containing gold, silver, lead, and other metals of
great value, and converted and were converting them to their own use and benefit, to the
damage of plaintiff in the sum of ten thousand dollars. Defendant's answer was a specific
denial of each allegation contained in the complaint. At the trial, to sustain the allegations of
his complaint, plaintiff introduced evidence of his title and possession subsequent to January
1, 1883, and in support of the charge of trespass, together with the damages resulting
therefrom. Certain exceptions were taken by plaintiff to the court's rulings, and at the close of
his case in chief, upon the motion of defendants, the court granted a nonsuit. Plaintiff appeals
from that order, and the judgment entered thereon.
1. We are satisfied with the decision in James v. Leport, ante, 174, and respondents'
objections to a consideration of the statement on appeal are answered by that decision.
2. If the court erred in excluding the notice of the location of the Gold Lode claim when it
was first offered in evidence, the error was corrected by its subsequent admission, before
plaintiff rested.
3. After plaintiff had introduced in evidence the mining laws of Ely mining district,
wherein the Gold Lode is situated, and, after his notice of location had been excluded as
evidence, he offered, and endeavored to prove, his actual possession and occupation of said
mining claim subsequent to January 1, 1883, continuously to the time of trial. Defendants
objected on the ground that plaintiff was precluded from showing actual possession not in
conformity with the local rules and regulations in evidence; and counsel for respondents have
argued in this court that actual possession was insufficient, in the absence of a compliance
with the local rules and regulations. We think the court erred in excluding evidence of actual
possession up to the time the action was commenced, for reasons that will subsequently
appear; still, for the purposes of this appeal, plaintiff was not injured by the exclusion at that
time, because afterwards, and without objection, plaintiff testified that he had been in full
charge and control of the entire Gold Lode claim since January 1, 1883; and two witnesses
testified in his behalf that they had worked continuously on the claim for plaintiff since the
fall of 1883, during which time plaintiff had full possession, charge, and control of the claim,
and had expended in work and machinery thereon, several thousand dollars. So, if proof of
actual possession was admissible, and important to plaintiff, it is still true that, at the time the
motion for non-suit was made and granted, there was evidence of such possession.
4. We are of opinion that, under the allegations of the complaint, plaintiff was not entitled
to show damage to the mining claim outside of ores converted. The gist of the action is the
alleged unlawful entry upon the mining claim in question, and the digging and removal of the
ores are mere matters of aggravation. (Pico v. Colimas, 32 Cal. 580.) Of the same nature is an
injury to the mine beyond that caused by taking the ores. Beyond the value of the ores taken,
the mine was not necessarily injured by the acts complained of.
sarily injured by the acts complained of. Such damages are special, and must be stated in the
complaint. (1 Suth. Dam. 763; Knapp v. Slocomb, 9 Gray, 76; Sampson v. Coy, 15 Mass.
494; Baldwin v. Railroad Corp., 4 Gray, 335.)
5. The court did not err in refusing to allow proof of damages between the commencement
of the action and the date of trial. Such damages were not the natural and necessary result of
the acts complained of in the complaint. (Mayne, Dam. 51; Warner v. Bacon, 8 Gray, 406;
Town of Troy v. Railroad Co., 3 Fost. 102; 1 Sedg. Dam, 190.)
6. The grounds of the motion for nonsuit were as follows: FirstThe evidence on the
part of plaintiff is insufficient to maintain the action. SecondIt is shown from the evidence
that the ore taken and removed by defendants was waste and screenings which were left in the
slopes and chambers of the Washington ledge by the Meadow Valley company, and were,
when taken and removed by defendants, personal property, detached from the free-hold, and
not a part of parcel of any mining claim located or claimed by plaintiff. ThirdThere is no
evidence before the court that the plaintiff discovered any ledge, lode, or deposit or ore within
the boundaries of this claim, prior to the date of its location by him. FourthThe evidence
shows that the mining claim called the Gold Lode was located upon the Washington and
Creole mining claim, and there is no evidence before the court that, at the date of said
location, the Washington and Creole mining claim was either abandoned or forfeited by its
owners, or that the same was subject to relocation as a part of the public domain.
FifthPlaintiff has shown by his evidence that the defendants entered upon the ground from
which these screenings were taken, in good faith, believing it to be a part of the Meadow
Valley mine, and that the value of the ore removed was less than the cost of reducing it to
coin, and that no damage has accrued to plaintiff.
In considering the court's ruling granting the nonsuit, we must take as proven every fact
which the plaintiff's evidence tended to prove, and which was essential to his recovery,
(Brown v. Warren, 16 Nev. 231; Dow v. Gould & C. S. M. Co., 31 Cal. 650,) and give him
the benefit of all legal presumptions arising from the evidence.
Was plaintiff's evidence insufficient to maintain the action, for the reasons stated in the
second, third, fourth and fifth grounds of the motion?
for the reasons stated in the second, third, fourth and fifth grounds of the motion? As we have
seen, the gist of the action was the breaking and entering of plaintiff's close, to-wit, the Gold
Lode mining claim, and the digging and conversion of ores were mere matters of aggravation.
The said close embraced the entire land within plaintiff's boundaries, and not merely the Gold
Lode, included therein. (Golden Fleece v. Cable Con. Co., 12 Nev. 329; Gleeson v. Martin
White M. Co., 13 Nev. 456; Mt. Diablo M. & M. Co. v. Callison, 5 Saw. 455.) There was
uncontradicted evidence that plaintiff located the claim in question January 1, 1883,
according to the mining laws of the United States, and the local rules and regulations of Ely
mining district, and held and worked it in the usual and customary mode of holding and
working similar claims in the vicinity thereof. Such holding and working constitute
occupation and adverse possession under the statute. (Gen. Stat. 3632.) There was no
evidence that any prior location, valid or otherwise, had been made of the claim in question.
The only evidence upon that point was that plaintiff's claim was located upon the old
Washington and Creole mining claim. It might have been so called without any valid location
under the mining laws; and there can be no relocation unless there has been a prior valid
location, or something equivalent, of the same property. (Belk v. Meagher, 104 U. S. 289.)
Plaintiff did not set up title as a relocator, and thus impliedly admit the validity of a prior
location. In his notice of location he claimed the ground as a discoverer and locator; and he
testified that he located the claim January 1, 1883. Testimony to the effect that the Gold
Ledge was located upon the old Washington and Creole mining claim was not evidence of a
valid prior location, or even of an attempted prior location, under the mining laws. It is true
that, in his first brief, counsel for appellant, in discussing another question, asserts that the
proof is uncontradicted that the Gold Lode mining claim was the old Washington and Creole
ledge, which was well known, and which had been abandoned and relocated by plaintiff; but
he retracts the last part in his second brief. At any rate, he was mistaken at first, and we must
look at the record to ascertain the nature of the evidence, rather than the opinion of counsel.
There was uncontradicted evidence that plaintiff had full charge, control, and possession
of the entire claim during the whole period between his location and defendant's entry;
charge, control, and possession of the entire claim during the whole period between his
location and defendant's entry; that he commenced work thereon in the fall of 1883, put
machinery thereon, and kept two men constantly employed until the trial; that when he was in
possession as stated, defendants, in March, 1885, entered, dug, and converted the ores found
in the waste rock left in the stopes and chambers by the Meadow Valley Company, years
before plaintiff's location. There was no evidence that plaintiff did not hold the claim
according to law, and the rules and customs of Ely mining district; and, if he was in
possession at the time of defendants' entry, the presumption is that he did so hold it, upon the
same principle that the possessor of any real estate is presumed to be the owner thereof until
the contrary is shown. (Robertson v. Smith, 1 Mont. 414; Sears v. Taylor, 4 Col. 42.) There
was no evidence that the defendants had title to the locus in quo, or the ores taken, or
possession or right of possession thereof. They stated at the trial that, when at work, they
thought they were on a ledge which, prior to plaintiff's location, had been claimed and worked
by the Meadow Valley Company, but they did not connect themselves with that company, or
any person or company claiming or having title or possession; nor did it appear that the
Meadow Valley Company ever had any title, or that it claimed or had any possession for more
than two years prior to the trespass complained of, or subsequent to plaintiff's location.
In view of the above facts and conclusions, no one of the grounds stated, nor all combined,
justified the order of nonsuit. Plaintiff's evidence was sufficient to maintain the action. In
addition, to plaintiff's location, the testimony showed the he was in the actual possession of
the entire claim. He and two other witnesses so testified. They were not questioned as to the
nature of their possession by defendants.
In Brown v. Benjamin, 8 Allen, 197, which was an action of trespass quare clausum,
plaintiff testified that he was in the occupation of the locus in quo at the time of the alleged
trespass upon it, and did not attempt to show any title thereto, besides actual possession.
Defendant did not cross-examine plaintiff concerning the nature of his possession. The court
said: As no inquiry was made of the plaintiff, as there might have been, respecting the nature
of his possession, and as there was no evidence that the defendant was not a mere stranger
and wrongdoer, we cannot sustain the ruling that the evidence showed that the plaintiff
could not sustain this action;
idence that the defendant was not a mere stranger and wrong-doer, we cannot sustain the
ruling that the evidence showed that the plaintiff could not sustain this action; for it is settled
law that actual possession of real estate is sufficient to enable the party in possession to
maintain trespass quare clausum fregit against a stranger, and everyone must be deemed a
stranger who cannot show any title or elder possession. The rule is the same in relation to
personal property. (Wood, Pr. Ev. Sec's. 60, 61.)
According to plaintiff's evidence, defendants were mere strangers and tortfeasors; and, in
order to recover, plaintiff was only obliged to prove a rightful possession as against them.
(Rogers v. Cooney, 7 Nev. 217.)
In this action the defendant may dispute the plaintiff's possessory right by showing that the
title and possessory right are vested in himself, or another under whom he claims, or whose
authority he has. But, if the plaintiff prove possession merely, that will suffice, if the
defendant cannot show a superior right in himself, or another under whom he can justify. It is
true, the plaintiff must prove such lawful possession as the defendant had no right to disturb,
but any possession is legal possession as against a wrong-doer. (Reed v. Price, 30 Mo. 446.)
In an action of trespass quare clausum fregit, the defendant can never plead soil and
freehold in a third person, without alleging a license from him; because a party having actual
possession, but not a right of possession, has a good title against a party having none. (Slater
v. Rawson, 6 Met. 445. And see First Parish in Shrewsbury v. Smith, 14 Pick. 301.)
Indeed, counsel for respondents admit that actual possession of such real estate as farms
and timber land is prima facie evidence of title, and is sufficient as against a trespasser; but
they claim that since the passage of the mining laws by congress, it is not so in case of a
mining claim, where it is shown that there are local rules and regulations which require the
doing of other acts besides the taking of actual possession. No authorities are cited, or reasons
advanced, in support of this claim. We may admit that any competent person may locate,
according to law, a mining claim in the actual possession of another which is not affected at
the time by a valid prior location, if this can be done peaceably and without force, and that, as
against such a location, proof of a prior actual possession would go for naught.
would go for naught. The reason is that, under the laws of congress, any competent person
may locate, peaceably, any vacant mineral land, and as to him it is vacant in law until a valid
location is made. (Belk v. Meagher, 104 U. S. 286; Horswell v. Ruiz, 67 Cal. 112.) But,
assuming the facts to be as they appear in the record, we are not dealing with that kind of a
case.
Judge Story said, in Ricard v. Williams, 7 Wheat. 107: The law will never construe a
possession tortious unless from necessity. On the other hand, it will consider every possession
lawful, the commencement and continuance of which is not proved to be wrongful.
We can see no reason why a stranger may trespass upon a mining claim held only by actual
possession, any more than he can upon farming lands so held, where no attempt has been
made to secure the government title. They are both valuable to the possessors, and, in one
case as much as in the other, presumption of title follows possession.
In Lebanon M. Co. v. Consolidated Rep. M. Co., 6 Col. 381, it is said that, in possessory
actions, proof of possession of a mining claim is always prima facie evidence of title. It is
presumptive of the ownership declared on, and, until overcome by evidence of a superior
character, is sufficient to maintain an action. The same doctrine is held in Sears v. Taylor, 4
Col. 38, (decided in 1877.)
In Campbell v. Rankin, 99 U. S. 261, an action for damages to a mining claim, decided in
1878, the court said: In actions of ejectment or trespass quare clausum fregit, possession by
the plaintiff at the time of eviction has always been held prima facie evidence of legal title,
and, as against a mere trespasser, is sufficient. (2 Greenl. Ev. 311.) If this be the law when the
right of recovery depends on the strict legal title in the plaintiff, how much more appropriate
is it as evidence of the superior right of possession under the acts of congress which respect
such possession among miners.
We quote also from Funk v. Sturrett, 59 Cal. 614: The act of congress in question
(section 2324, Rev. Stat.) provides that the location must be distinctly marked on the ground,
so that its boundaries may be readily traced.' Since the passage of that act, a party can show a
right to the possession of a mining claim (where no patent has been issued) only by showing
an actual possessio pedis as against a mere wrong-doer, or by showing a compliance with
the requisites of the act of congress."
actual possessio pedis as against a mere wrong-doer, or by showing a compliance with the
requisites of the act of congress. (See, also, Belk v. Meagher, supra, 288.)
In Noyes v. Black, 4 Mont. 534, (decided in 1883) plaintiffs attempted, by virtue of
possession alone, to hold a mining claim against a valid location. It was held that they could
not do so; but, said the court, as against a stranger, possession is sufficient to maintain
trespass or ejectment.
We conclude, from reason and authority, that in this action the presumptions arising from
possession, and the rights given thereby, are the same as they would have been if the locus in
quo had been farming or timber land.
We will now consider the different grounds of the motion in the light of the preceding
principles and conclusions. Although, upon the evidence before us, we have no doubt that the
screenings left in the stopes and chambers as waste rock by the Meadow Valley Company
were a part of the mining claim located by plaintiff, (Noble v. Sylvester, 42 Vt. 149; Brown v.
'49 & '56 Quartz M. Co., 15 Cal. 158.) and that a patent from the government conveying the
claim would carry the screenings, yet an opposite conclusion would not justify the non-suit.
Plaintiff was entitled to recover nominal damages, at least, for the trespass upon his
possession, together with such other damages as were shown to have been suffered by reason
of the acts alleged by way of aggravation. (2 Wat. Tresp., Secs. 999, 1000, 1090: Parker v.
Griswold, 17 Conn. 302; North Noonday Co. v. Orient Co., 6 Saw. 319; 1 Add. Torts.; 322;
Empire G. M. Co. v. Bonanza M. Co., 67 Cal. 406.)
As to the third ground, it is enough to say that plaintiff was not obliged, as against
defendants, to prove any better title than actual possession gave him. It was not necessary for
him to prove the discovery of any lode within the boundaries of his claim prior to location. In
a word, in order to make a prima facie case against defendants, having shown possession,
plaintiff was not obliged to prove a valid location. Defendants were not in position to assail
plaintiff's title. It was no answer to plaintiff's proof of possession to say that the title was in
the government, or a third person, and not in plaintiff. (Shrewsbury v. Smith, 14 Pick. 302;
Keane v. Cannovan, 21 Cal. 305; Branch v. Doane, 18 Conn. 242; Inhabitants of Barnstable
v. Thacher, 3 Met. 242; Hughes v. Graves, 39 Vt. 359; Williston v. Morse, 10 Met. 17;
ton v. Morse, 10 Met. 17; Courchaine v. Bullion M. Co., 4 Nev. 369.) Besides, a location is
made valid by the discovery of a lode at any time after the location, if such discovery is made
before any rights are acquired in the same claim by another person. (North Noonday M. Co. v.
Orient M. Co., 6 Saw. 300; Zollars & Highland Chief Con. M. Co. v. Evans, 2 McCrary, 43.)
A sufficient answer to the fourth ground has already been made; that is to say, there was
no evidence that there had ever been a valid location of the Washington and Creole claim;
but, in addition, what we first said in answer to the third ground is equally applicable here.
The fifth ground was without merit. Plaintiff was entitled to recover nominal damages in
any event, and whether defendants could demand a deduction of reasonable working expenses
depended upon facts that should have been left to and decided by a jury. We need not decide
what would be the legal result if defendants converted the ores under a bona fide, but
mistaken, belief that they had a right to appropriate them; especially if they had no fair reason
in law to so believe. If they were willful trespassers, (a question for the jury,) no deductions
were allowable for working expenses. In other words, in that case plaintiff was entitled to the
enhanced value of the property taken. (Wooden-Ware Co. v. U. S., 106 U. S. 432; Silsbury v.
McCoon, 3 N. Y. 381; Nesbitt v. St. Paul Lumber Co., 21 Minn. 491; 1 Suth. Dam. 716.)
It would be manifestly improper for us to draw any conclusions from the evidence before
us in relation to defendants' motives, but we are satisfied that, upon plaintiff's case in chief, it
was the duty of the court to submit the question of damages to the jury.
The order of the court granting a nonsuit, and the judgment entered thereon, are reversed,
and the cause remanded.
____________
19 Nev. 415, 415 (1887) Godchaux v. Carpenter
[No. 1243.]
LOUISA GODCHAUX, Petitioner, v. L. N. CARPENTER et al.,
COUNTY COMMISSIONERS OF HUMBOLDT COUNTY, Respondents.
County CommissionersLimited JurisdictionPresumptions.A board of county commissioners is a
body possessing but limited and special powers.
county commissioners is a body possessing but limited and special powers. When its authority to do a
particular thing is questioned, the record must affirmatively show all the facts necessary to give it
authority to perform the act, and when this is not shown the presumption is against its jurisdiction.
IdemEminent Domain.The exercise of the right of eminent domain is necessarily in derogation of private
rights, and the rule is that the authority is to be strictly construed.
HighwaysProceedings to EstablishJurisdictional Defects.The board of county commissioners of
Humboldt county granted a petition for the establishment of a public road. The petition did not disclose
the names of the owners of land through which the road was to pass, nor did the records of the board
show that they had found that a majority of the resident taxpayers of the district, according to the last
previous assessment roll, had signed the petition, as required by statute: Held, that compliance with the
statute was a jurisdictional fact, which must appear, and that the action of the board was null and void.
Application for writ of certiorari.
M. S. Bonnifield and H. F. Bartine, for Petitioner:
I. Section 4, stat. 1877, 142, under which the commissioners proceeded, makes no
provision for the payment of compensation to the owner and is, therefore, unconstitutional.
(Const. Art. 1, Sec. 8; Cooley Cons. Lim. 699; Curran v. Shattuck, 24 Cal. 427; Bensley v.
Mountain L. W. Co., 13 Cal. 306; Trumpler v. Bemerly; 39 Cal. 491.)
II. The section is also unconstitutional in omitting to provide for notice to the owner of the
property. (Wright v. Cradlebaugh, 3 Nev. 349; Dayton M. Co. v. Seawell, 11 Nev. 411.)
III. The law provides that the commissioners may proceed to locate, open and establish
public roads upon the petition of a majority of the resident taxpayers of the district. The
petition must show upon its face that it is the petition of such majority. This is a jurisdictional
fact which must be made to appear prima facie before the board has any power to consider
the subject-matter. (Twaddle v. Comm'rs., 12 Nev. 17.)
IV. When the power of the court to hear and determine depends upon the existence of
certain facts, such facts must be both pleaded and proved. (Bennett, v. Bennett, 28 Cal. 599;
Washburn v. Washburn, 9 Cal. 475.)
V. No person can be deprived of his or her property by any legal proceeding without
notice, whether the statute makes provision for it or not.
vision for it or not. (Curran v. Shattuck, 24 Cal. 433; Wright v. Cradlebaugh, 3 Nev. 349.)
[No brief on file for respondent.]
This is an application for a writ of certiorari to review the action of the board of county
commissioners of Humboldt county, in this state, in making the following order, May 5,
1886, to-wit: The board, having under consideration the petition of Edward Lyng and other
resident tax-payers of Willow Point road district, praying for the location, opening, and
establishing, for public use, of a public road and highway, described in said petition, and
situated in said road district, and evidence having been produced before the board, and heard
by it, in said matter, and it appearing to the board therefrom that said petition was signed by a
majority of the resident tax-payers of said Willow Point road district, and was in all respects
in conformity with the law in such case made and provided, the board granted said petition,
and appointed P. W. Cunningham, a disinterested person, as road viewer on its part, with
such powers and authority as are provided by law.
Plaintiff is the owner of the southwest quarter of the southeast quarter of section 10,
township 39 north, range 39 east, through which said road, if opened, will pass. The statute
provides that, at any time when a majority of the resident tax-payers of a road district,
according to the last previous assessment roll, shall petition the county commissioners of
their respective counties for the location, opening for public use, establishment, change, or
vacation of any public road or highway, or road to connect with any highway, heretofore
established, any street, or alley in any incorporated town in such county, setting forth in such
petition the beginning, course, and termination of such road or highway, street or alley,
proposed to be located and opened for public use, established, changed, or vacated, together
with the names of the owner or owners of the land through which the same will pass, said
petition may be presented to the county clerk of said county, and the clerk shall lay said
petition before the board of county commissioners at their next meeting after the reception of
said petition, and thereupon said board of commissioners shall, within thirty days
thereafter, proceed to locate, open to public use, establish, change, or vacate such road,
highway, street, or alley.
thereupon said board of commissioners shall, within thirty days thereafter, proceed to locate,
open to public use, establish, change, or vacate such road, highway, street, or alley. Before
opening any new road, street, or alley, or changing same, through private property, such
property shall be condemned for public use, as follows: * * *.
It is alleged in the petition filed in this court that plaintiff will sustain great damage and
injury by the opening of said road, and that, unless restrained, defendants intend to, and will,
proceed to locate, establish, and open said road, through plaintiff's said land, until the same is
completed, to plaintiff's irreparable damage, and that, for several reasons stated, the board
exceeded its jurisdiction in making the order before recited.
It is well settled that a board of county commissioners is a body possessing but limited and
special powers; that, when its power or authority to do any particular thing is questioned, the
record must show affirmatively all the facts necessary to give it authority to perform the act
complained of, and that, when this is not the case, the presumption is against its jurisdiction.
(Swift v. Commissioners of Ormsby Co. 6 Nev. 97; State v. Board of Commissioners, 12 Nev.
19; Curran v. Shattuck, 24 Cal. 435; Finch v. Tehama Co., 29 Cal. 454.)
It is just as well established, also, that the exercise of the right of eminent domain,
whether directly by the state or its authorized grantee, is necessarily in derogation of private
rights; and the rule is that the authority is to be strictly construed. * * * What is not granted is
not to be exercised. (Lance's Appeal. 55 Pa. St. 26.)
Stanford v. Worn, 27 Cal. 172, was an action to condemn lands for state prison purposes,
under a statute passed to that end. The court said: In order to render proceedings of this
character effectual for any purpose, the provisions of the statute by which they are authorized
must be strictly followed. The power must be exercised precisely as directed, and there can be
no departure from the mode prescribed without vitiating the entire proceedings. When
certain steps are authorized by statute in derogation of the common law, by which the title of
one is to be divested and transferred to another, every requisite having the semblance of
benefit to the former must be strictly complied with. (Atkins v. Kinnan, 20 Wend. 241.) The
right to appropriate private property to public uses lies dormant in the state, until
legislative action is had, pointing out the occasions, the modes, conditions, and agencies
for its appropriation.
right to appropriate private property to public uses lies dormant in the state, until legislative
action is had, pointing out the occasions, the modes, conditions, and agencies for its
appropriation. Private property can only be taken pursuant to law; but a legislative act
declaring the necessity, being the customary mode in which the fact is determined, must be
held to be, for this purpose, the law of the land,' and no further finding or adjudication can be
essential, unless the constitution of the state has expressly required it. When, however, action
is had for this purpose, there must be kept in view that general, as well as reasonable, and
just, rule, that whenever, in pursuance of law, the property of an individual is to be divested
by proceedings against his will, a strict compliance must be had with all the provisions of law
which are made for his protection and benefit, or the proceedings will be ineffectual. Those
provisions must be regarded as in the nature of conditions precedent, which are not only to be
observed and complied with before the right of the proper owner is disturbed, but the party
claiming authority under the adverse proceedings must show affirmatively such compliance.
(Cooley, Const. Lim. 657. And see Nichols v. Bridgeport, 23 Conn. 208; Kroop v. Forman,
31 Mich. 144; Sharp v. Speir, 4 Hill, 86; Bensley v. Water Co., 13 Cal. 315; Dalton v. Water
Commissioners, 49 Cal. 222; Mitchell v. Railroad & C. Co., 68 Ill. 286; Sharp v. Johnson, 4
Hill, 92.
The last case shows that the twenty-fourth section of the act incorporating the village of
Williamsburg provided as follows: The trustees of said village shall or may, on an
application in writing of a majority of the persons owning the property described in any such
application, and who are intended to be benefited thereby, or whose property shall be assessed
for the payment of the expenses attending the same, and upon such application they are
hereby fully authorized and empowered to widen and alter all public roads, streets, and
highways already laid out, in said village. The court said: Let us see what authority the
trustees had to proceed. They had a paper signed by fourteen persons, in which they suggest
the propriety of having the street opened.' * * * Although the petitioners say that they are
inhabitants in and about North Third street,' they do not suggest' that they own a single foot
of land in the street, or elsewhere; nor is any land described' in the application, as the statute
requires. There are only fourteen petitioners, while there are forty-four different
assessments.
tioners, while there are forty-four different assessments. * * * The burden lay on the
defendant of showing that the application came from a majority of the persons owning the
property,' and he has not only failed to show it, but the evidence is nearly or quite conclusive
that a majority did not apply. The trustees, therefore, had no authority whatever to open the
street, and the plaintiff's land in the site of the street has not been taken according to law. She
owns it still.
We quote also from the court's opinion in the case of In re Grove St., 61 Cal. 444. The
case shows that the second and third sections of the act to provide for the opening of streets
in the city of Oakland provided that proceedings should be commenced by petition of five or
more residents and freeholders within said city, addressed to the city council; the petition to
contain, among other things, a statement that, in the opinion of the petitioners, the public
interests require that the improvement asked for (describing it generally) should be made.
But the statement of the residents and freeholders to the city council was that, in the opinion
of the petitioners, the improvement asked for should be made. Said the court: It may be said
it is enough if the freeholders express a desire that the street be opened, or other
improvements made. This must be all required by the statute, since it must be presumed the
legislature has not attempted to give the power, power which it could not give, to five or more
residents and freeholders of deciding whether the public interests require' a municipal
improvement; in other words, its necessity or expediency. But the statute does not purport to
confer such power upon the petitioners. The fourth section of the act provides that, at the
regular meeting next after the meeting at which the petition of freeholders is presented, the
council may, by resolution, determine the lands to be benefited,' etc. Thus the ultimate power
of determining the necessity and expediency of the work is placed in the city council. The
power, however, like every other power of the council, is derived from the charter or statute,
and can be employed only in the manner and with the limitations prescribed in the statute.
The statute authorizes the city council to proceed with the acts looking to the opening of the
street only after a certain petition shall be filed with the clerk. It was for the legislature to
prescribe, and the legislature has prescribed, what the petition shall contain. Until a petition
is presented containing substantially all that the law declares shall be inserted in a
petition to initiate the proceeding, the council has no power or jurisdiction to act with
reference to the opening of a street.
a petition is presented containing substantially all that the law declares shall be inserted in a
petition to initiate the proceeding, the council has no power or jurisdiction to act with
reference to the opening of a street. A statement in the petition that, in the opinion of the
petitioners, an improvement should be made,' is not in substance the same as a statement
that, in the opinion of petitioners, the public interests require the improvement should be
made.'
In the case before us it was the duty of the board, and consequently within its jurisdiction,
in thirty days after March 2, 1886 (its first meeting after the petition was filed having been
held on that day), to proceed with the acts looking to the opening of the road in question, as
the statute required; provided, the petition contained: first, a majority of the resident
taxpayers of Willow Point road district, according to the last previous assessment roll; and,
second, the beginning, course, and termination of said road; and, third, the names of the
owners of the land through which the same would pass.
The statute does not require, in terms, the first fact to be stated in the petition, but it does
the second and third. If we admit that the first fact may have been determined by the board,
upon evidence presented, although not shown by the petition, (Hetzel v. Board of
Commissioners of Eureka Co., 8 Nev. 309), yet it must appear affirmatively, from the records
of the board, that the board found as a fact that a majority of the resident taxpayers of
Willow Point road district, according to the last previous assessment roll, had signed the
petition. What the board did find is that said petition was signed by a majority of the
resident taxpayers of said Willow Point road district. It was not found that a majority of the
resident taxpayers of the road district, according to the last previous assessment roll, had
signed it. The board found that a majority of the then resident taxpayers of the road district
had signed the petition, while the statute required a majority according to the last previous
assessment roll.
Eleven persons signed the petition before it was filed, and four after filing. The most that
can be claimed is that the board found that, at the time of the hearing, fifteen constituted a
majority of the resident tax-payers of the road district; that at that time there were not more
than twenty-nine in all. But those findings do not show that no more than twenty-nine
resident tax-payers of the road district appeared upon the last previous assessment roll.
ident tax-payers of the road district appeared upon the last previous assessment roll. That may
have shown more than twenty-nine, and hence more than fifteen may have been required to
constitute the requisite number under the statute. The legislature had the right to require the
majority to be estimated from the number appearing on the last previous assessment roll, and
it did so. It could have required a petition, signed by every resident tax-payer, or by a number
less than a majority.
In the present case the board had no power to locate the road in question without finding as
a fact, from competent evidence, that a number of resident tax-payers of the road district,
exceeding one-half the number appearing upon the last previous assessment roll, had signed
the petition, This was a jurisdictional fact, without which the board had not power to make
the order complained of. Again, under the statute, it was just as necessary to insert in the
petition the names of the owners of the land through which the road would pass as it was to
set forth therein the beginning, course, and termination of the road. The statute declares that
all these facts shall be stated in the petition; and, aside from the fact that their insertion is a
statutory requirement, they ought to be in the petition for the protection of land owners, and
the guidance of road viewers.
It is unnecessary to consider other questions raised by counsel for plaintiff.
The order of the board of county commissioners of Humboldt county, dated May 5, 1886,
granting the petition of Edward Lyng and others, to locate, establish, and open the road
therein described, and to run in part through the lands of Louisa Godchaux hereinbefore
mentioned, is declared and adjudged to be null and void, and plaintiff will have judgment for
her costs.
____________
19 Nev. 422, 422 (1887) Dixon v. Ahern
[No. 1240.]
THOMAS DIXON, Respondent, v. JERRY AHERN, Appellant.
Use and OccupationRequisites to MaintainTrespasser.To maintain an action for use and occupation, it is
necessary to show that the relation of landlord and tenant existed between the parties during the time of
occupation. A mere trespasser cannot be held liable in such action.
19 Nev. 422, 423 (1887) Dixon v. Ahern
IdemPresumption.The burden of proof rests upon the owner of land to show that a person who at first
entered upon the land as a trespasser afterwards became a tenant. The presumption is that he continued to
hold the land in the same character as he at first held it.
IdemInstruction.The court refused to give the following instruction to the jury: If you believe from the
evidence in this case that the defendant, some time in the spring and summer of 1880, entered into or
upon the tract of ground mentioned in the complaint, being the ground upon which his wood was corded,
against the will and consent of plaintiff, and without the knowledge or permission of plaintiff; and
without any previous understanding had with plaintiff in relation to such entry, and that said defendant
continued to so hold the possession, and so continued to use and occupy the same against the consent of
plaintiff, and that defendant, during such time, denied the plaintiff's right thereto, and never at any time
promised or agreed to pay plaintiff for the use and occupation of said premises, but at all times refused to
admit the right of plaintiff to recover from defendant for such use and occupation, then I charge you that
plaintiff cannot recover in this action, and your verdict should be for the defendant: Held, upon a review
of the testimony, that the instruction stated a correct principle of law; that there was evidence of facts
which, with the presumptions arising therefrom, tended to establish the facts stated in the instruction, and
that the court, therefore, erred in refusing to give the instruction.
Baker & Wines, for Appellant:
I. A party has the right to have the jury instructed as to the law applicable to a state of
facts which he claims to exist. (Moresi v. Swift, 15 Nev. 215; State v. Levigne, 17 Nev. 435;
Davis v. Russell, 52 Cal. 611.)
II. The instruction refused stated the law of the case. The evidence submitted to the jury
established the fact that there was no contract, express or implied, between the parties. There
was no element of a contract. If the appellant occupied any position whatever as against the
respondent, which infringed upon, or was in violation of respondent's rights, it was as a
trespasser, and the action for use and occupation will not lie. In order that such an action be
sustained, the relation of landlord and tenant must be shown to exist. (Lloyd v. Hough, 1
How. 153; Bancraft v. Wardwell, 13 Johns., 489; City of Boston v. Binney, 11 Pick. 1;
Central Mills Co. v. Hart, 124 Mass. 123; Ackerman v. Lyman, 20 Wis. 454; Lockwood v.
Thunder B. R. B. Co., 42 Mich. 536; O'Connor v. Corbitt, 3 Cal. 370;
19 Nev. 422, 424 (1887) Dixon v. Ahern
Cal. 370; Ramirez v. Murray, 5 Cal. 222; Emerson v. Weeks, 58 Cal. 439; Carson River L.
Co. v. Bassett, 2 Nev. 249; Knickerbocker Co. v. Hall, 3 Nev. 194; Hathaway v. Ryan, 35
Cal. 188; Hurley v. Lamoreaux, 29 Minn. 138.)
III. There was a fatal variance in this case between the statements contained in the
complaint and the evidence upon the trial. The complaint shows a cause of action upon
contract, while the evidence shows a cause of action (if any at all) upon a tort. (Degraw v.
Elmore, 50 N. Y. 1; Mercier v. Lewis, 39 Cal. 532; Tomlinson v. Monroe, 41 Cal. 94;
Knickerbocker v. Hall, 3 Nev. 194.)
IV. A trespass upon real property cannot be waived and an action in assumpsit sustained.
(Lockwood v. Thunder B. R. B. Co., supra; Carson River L. Co. v. Bassett, 2 Nev. 249.)
Wren & Cheney, for Respondent:
I. It may well be doubted if the objection of a variance between the pleading and proof can
be made for the first time in the appellate court. (Roberts v. Graham, 6 Wall. 581; Mosher v.
Lawrence, 4 Denio, 421; Whitney v. Sutton, 10 Wend. 411; Lawrence v. Barker, 5 Wend.
305.)
II. Instructions are always to be given with reference to the facts proved before the jury.
(People v. Byrnes, 30 Cal. 207; People v. Atherton, 51 Cal. 498; Thompson v. Page, 16 Cal.
77; People v. Williams, 43 Cal. 351; Bowers v. Cherokee Bob, 45 Cal. 508; People v. Gilbert,
60 Cal. 111; People v. Cochrane, 61 Cal. 551; Dreyfuss v. Thompkins, 64 Cal. 448; State v.
Whit, 5 Jones L. 224; 72 Am. Dec. 540; Fulton v. Day, 8 Nev. 80; Sherman v. Dilley, 3 Nev.
21; Moresi v. Swift, 15 Nev. 215; Meyer v. V. & T. R. R. Co. 16 Nev. 352.)
III. The instruction was properly refused because not supported by the evidence. It was
based upon the jury believing a series of facts not established by the testimony of any witness.
(Evidence reviewed.)
IV. It is true as stated by appellant that this action is based upon an implied contract. It
was fought and won upon the theory, that the circumstances connected with the entry, use and
occupation of the plaintiff's premises by defendant, were such as to raise an implied promise
on the part of defendant to pay what said use and occupation were reasonably worth.
19 Nev. 422, 425 (1887) Dixon v. Ahern
Such a contract may be created without an express agreement between the parties. It may be
created either by any express promise or by such acts, conduct and silent acquiescence that
the law will imply a promise or estop the defendant from denying the existence of the
liability. This promise may be inferred either from what took place at the time of the entry, or
subsequent. (Ackerman v. Lyman, 20 Wis. 457; Lloyd v. Hough, 1 How. 153; Gunn v. Scovil,
4 Day, 228.)
V. The verdict of the jury unalterably settled the question as to the character of the entry
and holding, and conclusively determined that it was with the permission and consent of
plaintiff.
Action for use and occupation of a tract of land. It is alleged in the complaint that on or
about September 10, 1880, plaintiff was the owner and in the possession of said tract, at
which time, with plaintiff's permission, defendant entered into the use and occupation thereof,
for the purpose of piling and storing cordwood, and so continued in such use and occupation
for said purpose until October 18, 1885; that said use and occupation was reasonably worth a
certain sum stated, which sum was demanded prior to the commencement of the action, no
part of which has been paid. Defendant denied plaintiff's ownership or possession, or that he
entered with plaintiff's permission, or that he used or occupied said tract at any time with
plaintiff's permission, or that said use and occupation were worth the sum stated, or any sum,
or that said sum, or any sum, was due from defendant to plaintiff. Plaintiff recovered
judgment for the amount claimed, besides costs. Defendant appeals from the judgment, and
specifies as error the court's refusal to give the following instruction to the jury: The court
also charges you that, if you believe from the evidence in this case that the defendant,
sometime in the spring and summer of 1880, entered into or upon the tract of ground
mentioned in the complaint, being the ground upon which his wood was corded, against the
will and consent of plaintiff, and without the knowledge or permission of plaintiff, and
without any previous understanding had with plaintiff in relation to such entry, and that said
defendant continued to so hold the possession, and so continued to use and occupy the
same against the consent of plaintiff, and that defendant, during such time denied the
plaintiff's right thereto, and never at any time promised or agreed to pay plaintiff for the
use and occupation of said premises, but at all times refused to admit the right of plaintiff
to recover from defendant for such use and occupation, then I charge you that plaintiff
cannot recover in this action, and your verdict should be for the defendant."
19 Nev. 422, 426 (1887) Dixon v. Ahern
such entry, and that said defendant continued to so hold the possession, and so continued to
use and occupy the same against the consent of plaintiff, and that defendant, during such time
denied the plaintiff's right thereto, and never at any time promised or agreed to pay plaintiff
for the use and occupation of said premises, but at all times refused to admit the right of
plaintiff to recover from defendant for such use and occupation, then I charge you that
plaintiff cannot recover in this action, and your verdict should be for the defendant.
In order to recover in this action, plaintiff was obliged to allege and prove that the relation
of landlord and tenant subsisted between him and defendant. That relation may be created
either by an express or implied contract. (Knickerbocker Co. v. Hall, 3 Nev. 198; Carson
River L. Co. v. Bassett, 2 Nev. 249; Railroad Co. v. Harlow, 37 Mich. 554; Lloyd v. Hough,
1 How. 154; Watson v. Brainard, 33 Vt. 90; Tay. Land. & Ten., Sec. 19.)
Every contract, whether express or implied, includes a concurrence of intention between
the two parties, one of whom promises something to the other, who, on his part, accepts such
promise. (1 Wait, Act. & Def. 70, 72.)
The mere occupation of premises does not, of itself, necessarily imply that the relation of
landlord and tenant exists. (Wood, Land. & Ten., Sec. 3; Tay. Land. & Ten. Sec. 25;
Eastman v. Howard, 30 Me. 60; Ward v. Warner, 8 Mich. 521; Executors of Smith v.
Houston, 16 Ala. 115.)
A tenant is one who occupies lands or premises of another, in subordination to that
other's title and with his assent, express or implied. But, in order to create the relation, the
two elements must concur. The fact that one is in possession of the lands of another does not,
of itself, establish a tenancy, because, if he is in possession under claim of title in himself, or
under title of another, or even in recognition of the owner's title, but without his assent, he is
a mere trespasser, and cannot be compelled to yield rent for his occupancy, nor is he estopped
from attacking the owner's title. In such case, all the elements requisite to create the relation
of landlord on the one hand, or of tenant on the other, are lacking, to-wit, assent on the one
hand, and subordination to the title upon the other. If the owner gives his assent to the
occupancy of one who has entered upon his lands adversely, a tenancy is not thereby created.
19 Nev. 422, 427 (1887) Dixon v. Ahern
created. In order to have that effect, the person in possession must accept such permission,
and consent to hold under him, and in subordination to his title. Where a person goes into the
possession wrongfully, it is undoubtedly competent for the parties, by a contract subsequently
made, to change the relation from that of a trespasser to that of a tenant. But in such a case the
contract must be explicit, and embrace all the elements previously referred to; and if it is
intended to have the tenancy commence from the date of the original entry, so as to change
the owner's remedy for the period of wrongful occupancy from trespass to an action for rent,
the contract should explicitly embrace the whole period of occupancy, or neither the character
of the prior occupancy or the remedy will be changed. Patterson, J., in an english case, said:
Use and occupation may arise from the waiver of a tort, or from simply letting into
possession.' But it is apprehended that an action for use and occupation could not be
maintained for a tortious entry and occupancy, because the owner of the premises cannot, by
electing to do so, compel a person, who entered into the possession of premises against the
owner's right, to occupy towards him the relation of tenant, unless such person elects to
assume that relation; that is, the owner cannot, at his option, elect to treat such person as a
wrong-doer or tenant; but, in order to enable him to treat him as a tenant, and proceed against
him for rent, the relation between them must be such as to raise the presumption of a
contract, or the remedy is by an action ex delicto. * * * In order to create the relation of
landlord and tenant, no particular words are necessary; but the intention of one party to
dispossess himself of the premises, and of the other to enter and occupy them as the former
himself had a right to do, must, in some way, appear, and, in all cases where the facts are
disputed, the question as to whether a tenancy exists is for the jury. (Wood, Land. and Ten.
Sec. 1; Young v. Coleman, 43 Mo. 179.)
When a person occupies the land of another, not as tenant, but adversely, or where the
circumstances under which he enters show that he does not recognize the owner as his
landlord, this action will not lie. (Butler v. Cowles, 4 Ohio, 213; Waller v. Morgan, 18 B.
Mon. 142; Lankford v. Green, 52 Ala. 104.)
Where, however, possession is taken by one, with the permission or assent of the owner,
from such possession the relation of landlord and tenant is implied, as well as a promise
to pay rent."
19 Nev. 422, 428 (1887) Dixon v. Ahern
mission or assent of the owner, from such possession the relation of landlord and tenant is
implied, as well as a promise to pay rent. (Wood, Land. & Ten., Sec. 3; Tay. Land. & Ten.,
Sec. 19; Watson v. Brainard, supra.)
In commenting upon an instruction given in Ackerman v. Lyman, 20 Wis. 456, the court
said: But the instruction is to the effect that, if he entered as a trespasser, without claim of
title, and remained in possession with the assent of Holdridge, the law will imply a promise to
pay rent. If this be so, then all that is necessary to convert a trespasser into a tenant, is for the
owner of the premises to say to him, I assent to your possession,' and a trespasser becomes a
tenant without his own consent, or even against his will. A tort cannot thus be converted into
a contract. * * * It (the agreement) may be implied for the defendant's entering into
possession by the permission of plaintiff, or from acts showing the assent of the defendant,
after a tortious entry, to hold under the permission of the plaintiff. (Henwood v. Cheeseman, 3
Serg. & R. 500; Ryan v. Marsh, 2 Nott & McC. 156; Stockett v. Watkins, 2 Gill. & J. 326;
Wiggin v. Wiggin, 6 N. H. 298.) * * * In this case the plaintiff alleges in his complaint that
Holdridge permitted the defendant to have, hold, and occupy the premises, and that the
defendant, according to that permission, held and occupied,' etc. The defendant, in his
answer, denies the permission of Holdridge and denies that he according to the permission,
held, occupied, and enjoyed the premises. It appears to us the instruction ignored the material
part of the issue, to-wit, that formed by the denial of the defendant that he held possession
according to the permission of the plaintiff, and was therefore erroneous. A trespasser cannot
be converted into a tenant without his consent. (And see Ward v. Warner, supra; Jackson v.
Tyler, 2 Johns. 445; Rickey v. Hinde, 6 Ohio 371; Peters v. Elkins, 14 Ohio 345; Hathaway v.
Ryan, 35 Cal. 193; Hurley v. Lamoreaux, 29 Minn. 138; Kittredge v. Peaslee, 3 Allen, 237.)
It is not claimed by counsel for respondent that the instruction refused is an incorrect
statement of the law in the abstract, but it is said that it assumes a state of facts without any
evidence fairly tending to prove them. Unless there was some evidence tending to establish
all the hypotheses upon which the instruction was based, or some evidence from which the
jury might have inferred the existence of the facts stated, then the instruction was
properly refused.
19 Nev. 422, 429 (1887) Dixon v. Ahern
have inferred the existence of the facts stated, then the instruction was properly refused.
(Williams v. Barksdale, 58 Ala. 288.) On the other hand, defendant was entitled to an
instruction applicable to the theory he contended for, and which the evidence tended to
support. (Comstock v. Norton, 36 Mich. 280; Anderson v. Bath, 42 Me. 346; Moresi v. Swift,
15 Nev. 221.) He was entitled to have specific charges upon the law applicable to each of
the hypotheses or combinations of facts which the jury, from the evidence, might legitimately
find. (Sword v. Keith, 31 Mich. 255.)
In Bradford v. Marbury, 12 Ala. 527, the court say: It is at all times a question of much
delicacy to refuse a legal charge on the ground that it is not supported by evidence, but to do
so when there is any evidence before the jury to warrant the proposition is clearly erroneous.
It is settled law that, if there is any evidence tending to establish a point, it is error to instruct
a jury that there is no such evidence.
In Harley v. McAuliff, 26 Mo. 525, it is said an instruction that there is no evidence on
which a verdict can be founded is incorrect, if there is the least particle of evidence, whether
direct or inferential, on which such verdict could be founded; and to the same effect is
Emerson v. Sturgeon, 18 Mo. 170.
A charge is not abstract when there is any evidence, however weak, at all tending to
support it. (Hair v. Little, 28 Ala. 236; McNeill v. Arnold, 22 Ark. 477; Hopkins v.
Richardson, 9 Grat. 496.)
Juries may infer the existence of a fact from other facts. (Memphis & C. R. Co. v. Bibb, 37
Ala. 699; Morris v. Hall, 41 Ala. 534; Cambria Iron Co. v. Tomb, 48 Pa. St. 393; Lawson,
Presump. Ev., 557.) They are bound by all the rules and presumptions of law, as far as they
apply. (Starkie, Ev., side p. 816; Proffatt, Jury T., Sec. 360; 1 Tay. Law of Ev., Sec. 171.)
Whether a legal presumption has or has not been rebutted is a question for the jury. (Foster
v. Berkey, 8 Minn. 361.)
Taking the law applicable to the present case to be as above expressed, we are now
prepared to examine the instruction in question in connection with the pleadings and evidence
admitted. It was agreed by both parties at the trial that defendant entered upon the tract of
land described in the complaint, and corded all of his wood thereon, against the will, and
without the consent or permission, of plaintiff, and without any previous understanding in
relation to such entry or use.
19 Nev. 422, 430 (1887) Dixon v. Ahern
understanding in relation to such entry or use. There can be no doubt, therefore, that, until
after the wood was corded, there were no facts that would justify an action for use and
occupation. Up to that time the relation of landlord and tenant did not exist, and there was no
contract, express or implied, to pay rent.
At the request of plaintiff, the court instructed the jury as follows: If you believe from the
evidence that the defendant entered into the use of the premises without any express
agreement as to the rent to be paid therefor, but that, after so entering, the defendant
consented to and acquiesced in the right and claim for rent for such use, the defendant is
liable for the reasonable value of such use as long as he continued to use the same after so
consenting and acquiescing in the claim and demand of plaintiff. The silence, conduct, and
acts of defendant during the time he occupied said premises, and in removing the wood
therefrom, are proper matters for you to consider in determining whether defendant impliedly
agreed to pay rent for the use of said premises.
It is patent, therefore, that plaintiff claimed, first, that he was in possession of the land
when defendant entered; and, second, that, after the entry, defendant impliedly consented to,
and acquiesced, in his right and claim for rent, that defendant impliedly admitted plaintiff's
right to the premises, and that his occupancy was in pursuance of plaintiff's permission, and
in subordination to plaintiff's title. On the other hand, defendant claimed, first, that plaintiff's
possession was not such as to entitle him to maintain an action for use and occupation; and,
second, that he entered upon the land without plaintiff's knowledge, against his will and
consent, believing the same to be a part of the public domain, and that, after entering, he did
not consent to, or acquiesce in, the right and claim of plaintiff for rent, or admit his right to
the land. In a word, he denied completely by his answer, and as fully as he was able by his
evidence, both claims of plaintiff above stated.
Referring, now, to the instruction under consideration, it is admitted by counsel for
respondent that there was evidence to the effect that, defendant entered, against the will and
consent of plaintiff, and without his knowledge or permission, and without any previous
understanding had with plaintiff in relation to such entry, and that defendant never at any time
promised or agreed to pay plaintiff for the use and occupation of said premises."
19 Nev. 422, 431 (1887) Dixon v. Ahern
promised or agreed to pay plaintiff for the use and occupation of said premises.
But it is earnestly urged by them that there was no evidence that said defendant continued
to so hold the possession, and so continued to use and occupy the same against the consent of
plaintiff; or that defendant, during such time, denied the plaintiff's right thereto; or that
defendant at all times refused to admit the right of plaintiff to recover from defendant for such
use and occupation. It is true that no witness testified in terms to the facts hypothetically
stated in the instruction, and objected to by counsel for respondent; but, without deciding or
intimating as to the sufficiency of the evidence to establish the several facts supposed, we
think it is equally certain that there was evidence of facts which, together with the
presumption arising therefrom, tended, at least, to establish the facts stated.
At plaintiff's request the court instructed the jury to the effect that if, after entering,
defendant consented to, and acquiesced in, the right and claim of plaintiff for rent, the
defendant was liable; and in determining the question of acquiescence they might consider the
silence, conduct, and acts of defendant while he occupied the premises, and in removing the
wood. And counsel for respondent say that, inasmuch as the jury by their verdict found that
defendant did acquiesce in plaintiff's claim, and did impliedly agree to pay rent, their finding
is conclusive. But we cannot know what the finding would have been if the minds of the jury
had been directed to the facts stated in the instruction.
In State v. Carnahan, 17 Iowa, 256, the court gave an instruction wherein he grouped
together many facts legitimately provable in such a case, and which the evidence tended to
establish, and instructed the jury that such facts as these, if shown by the testimony,
constitute circumstantial evidence. Circumstantial evidence is legal evidence, and convictions
had upon it are legal convictions. In the case before them, the jury will look at all the
evidence, and from it make up their minds as to the guilt or innocence of the defendant. The
supreme court said: But it is claimed in argument here that the facts thus grouped together
by the court all bear upon one side, and against the defendant. * * * If there were, however,
any facts shown, or which the evidence tended to show, bearing in his favor, it was clearly
competent for his counsel to group them together in like manner, and ask the court to
give such instruction to the jury, and a refusal to give it would doubtless be error; but a
failure to give such instruction, without request, cannot be regarded as error."
19 Nev. 422, 432 (1887) Dixon v. Ahern
was clearly competent for his counsel to group them together in like manner, and ask the
court to give such instruction to the jury, and a refusal to give it would doubtless be error; but
a failure to give such instruction, without request, cannot be regarded as error.
And in McCausland v. Cresap, 3 G. Greene, 161, the court said: If the charge were not
sufficiently direct on this or any other point involved in the case, it was in the power of the
defendant's attorney to request of the court, in writing, instructions in such a manner as to
bring the matter directly to the mind of the court, and have it, on the law, presented to the
jury.
If there was evidence in this case which tended to establish the facts stated, the defendant
had the right to have the minds of the jury directed to them, in determining the question of
acquiescence subsequent to entry, which was the turning point in the case.
We have seen what facts were admitted by both parties at the trial, and that from them the
relation of landlord and tenant could not have existed until after defendant had entered and
piled his wood. It was agreed also, and the court so instructed the jury, that defendant never
expressly promised to pay rent. Plaintiff testified that the wood was placed on the ground
without his consent or knowledge; that he did not want it there, and always objected to it, as
he needed the ground for his own use, but was willing it should remain if he was paid rent.
He testified that, in one of the two or three conversations which he said he had with defendant
in the summer or fall of 1880, he told defendant that he must have five dollars per month
ground rent, and that he would hold the wood as security; but defendant denied that plaintiff
ever notified him that he would be required to pay for the use of the ground. Defendant also
testified that he never had but one conversation with plaintiff, in regard to the ground or
wood, until just before the commencement of this action, when plaintiff presented his bill;
that at the first conversation plaintiff asked him if the wood was defendant's or Brisacher's,
and that he replied, It is mine or Brisacher's. Plaintiff did not testify that defendant at any
time admitted plaintiff's right to the land, or his right to collect rent. There was no evidence
that plaintiff had any other title than that given by possession, and defendant testified that in
June, 1SS0, he and Brisacher went upon the ground looking for a suitable place to pile
wood; that there was then no fence of any kind along the western side, and nothing that
would indicate a line or the extent of any one's possession; that he piled his wood there,
believing the ground was a part of the public domain, and that he had the same right to
pile it there as he had to pile it anywhere on the public lands.
19 Nev. 422, 433 (1887) Dixon v. Ahern
1880, he and Brisacher went upon the ground looking for a suitable place to pile wood; that
there was then no fence of any kind along the western side, and nothing that would indicate a
line or the extent of any one's possession; that he piled his wood there, believing the ground
was a part of the public domain, and that he had the same right to pile it there as he had to
pile it anywhere on the public lands. Plaintiff presented his bill for rent, and it was not paid.
In his answer he denied plaintiff's allegations of possession, and his use and occupation by
plaintiff's permission. At the trial he endeavored to disprove plaintiff's claim of possession,
and the court informed the jury what acts were necessary to give plaintiff sufficient
possessory title to maintain an action for use and occupation.
On this appeal the verdict of the jury is conclusive as to plaintiff's possession when
defendant entered, no exception having been taken to the court's instruction upon that
question. But the facts above stated, and particularly those admitted concerning defendant's
entry; the evidence that he believed the land was possessed by no one, and that he had a right
to occupy it; that, prior to the entry, there was no fence on the western side, or anything to
show the extent of any one's possession; that defendant did not settle plaintiff's claim when it
was presented, before this action was commenced; that he contested the claim in the court
below, as before stated; that he never promised to pay rent; that plaintiff, during the five years
of occupation, never notified him that he would be required to pay rentthis evidence
tended, at least, to show that defendant entered upon, and continued to use, the land under
claim of right in himself, not in subordination to plaintiff's right and title, not as plaintiff's
tenant, and that he did not acquiesce in plaintiff's claim for rent; and, if the evidence tended to
establish the facts just stated, it tended also to sustain every fact objected to in the instruction.
Again, if defendant entered against the will and consent of plaintiff, and without his
permission, under claim of right in himself, there was a legal presumption that the same state
of facts and defendant's state of mind continued as before, until the contrary was shown, and
the burden of proof was upon plaintiff. (1 Greenl. Ev., Sec. 41; Best Ev. 303, note c, 389;
Lawson, Presump. Ev. 167; Table Mt. M. Co. v. Waller's Defeat M. Co., 4 Nev. 220;
19 Nev. 422, 434 (1887) Dixon v. Ahern
M. Co., 4 Nev. 220; O'Neil v. Mining Co., 3 Nev. 147; Hanson v. Chiatovich, 13 Nev. 397.)
In Leport v. Todd, 32 N. J. Law, 128, it was an undisputed fact that Drake, while
possessed of the premises in question, declared that he had entered as the tenant of Hanna,
who was admitted to be the owner. The court refused defendant's request to charge the jury, if
they believed from the evidence that Drake entered as tenant of Hanna, he was presumed to
have continued there as tenant until the contrary was proved. The appellate court held the
refusal error, and said: I think the court should have charged, as requested, to the effect that
it is a legal presumption that a possession, beginning in the assent of a landlord, continues, in
subordination to his title, until a change of tenure is shown by the evidence. There was an
equally strong opposite presumption in this case.
In Cummins v. James, 4 Ark. 616, the trial court refused the following instruction: If the
jury believe from the evidence that the legal right to the money in controversy is in the bank
of the United States, they must find for the defendants; and, unless the jury believe from the
evidence that the plaintiffs are legally the assignees of the bank, they must find for the
defendants. Said the court: The principle is unquestionably true that, a party to maintain an
action must be entitled to the legal interest in the suit. If the legal interest is shown to be in
plaintiff, the action will lie; if in another, it cannot be maintained. If there is a contrariety of
testimony as to the person in whom the legal interest is vested, and that question is a matter of
fact, to be determined by the jury, then, of course, it would be error in the court to take the
question from the jury. There was certainly a conflict of testimony as to the legal interest. * *
* Now, the refusal of the first instruction virtually took from the jury the question of fact as to
the right of action. The court, by refusing to instruct the jury that, if they believed the legal
interest was in the bank of the United States, then they ought to find for the defendants,
clearly decided the point that there was no evidence tending to show that the bank was the
legal owner of the money. In this they were mistaken; for, by admitting the proof that the
money was collected upon a judgment rendered in favor of the bank, there was a presumption
raised that the bank possessed the legal interest.
19 Nev. 422, 435 (1887) Dixon v. Ahern
the legal interest. This presumption was rebutted and contradicted by other testimony in the
cause; but whether it was fully overthrown was a matter for the jury, and not for the court, to
determine, being a question of contested fact.
But in this case, as we have endeavored to show, there were, besides the presumption
mentioned, facts and circumstances tending to show that defendant did not enter, or, after
entry, hold possession, in subordination to plaintiff's title, or acquiesce in plaintiff's claim for
rent; and, if such was their tendency, they tended also to establish every fact stated in the
instruction under consideration.
Judgment reversed and cause remanded.
____________
19 Nev. 435, 435 (1887) Ferraris v. Kyle
[No. 1257.]
CHARLES FERRARIS, ADMINISTRATOR, etc., Respondent,
v. MATTHEW KYLE, Appellant.
Possession of Personal PropertyInclosed Land.The delivery of the possession of inclosed land, carries with
it the possession of the personal propertywood and coalthereon.
EvidenceStatement on Former Appeal Inadmissible.For the purpose of establishing a variance in the
testimony of the plaintiff, from that given by him at the former trial, defendant offered the statement upon
motion for a new trial and appeal used in the former hearing: Held, that the statement was properly
excluded by the court.
IdemBuilding New Fence Inadmissible.Evidence that the purchaser of a wood ranch, under execution, had,
after his purchase, built a new fence around the ranchnot coupled with any offer of evidence tending to
prove a necessity for its constructionis immaterial and was properly excluded by the court.
IdemCondition of Fence at Date of Trial.Evidence of the condition of a brush fence at a given date, just
before the trial, is incompetent for the purpose of showing its condition twenty-nine months previous.
Instruction.The instruction referred to in opinion reads as follows: It is not necessary that there should be an
intent to defraud to render a transfer or sale void. The statute makes void all conveyances made with
intent to hinder, delay or defraud, creditors, and if the jury believe that the bill of sale was made and
delivered with the intent to hinder, or delay, or defraud Tognini & Co. from the collection of their debt,
your verdict should be for defendant: Held, that the instruction is self-contradictory and misleading, and
that it was properly refused by the court.
Henry K. Mitchell, A. E. Cheney, and Robert M. Clarke, for Appellant.
Upon the former appeal the judgment of the district court was reversed on the ground of
failure of the plaintiff to establish such a possession of the personal property against attaching
creditors as would satisfy the requirements of the statute of frauds. In reaching this
conclusion, the evidence adduced at the trial was fully set forth in the opinion of the court.
(Comaita v. Kyle, ante 38.) At the second trial the testimony introduced by the plaintiff
tended to establish the facts proven at the first trial, and, in addition thereto, the fact that the
land surrendered to the possession of plaintiff's intestate was inclosed by a fence.
The assignments of error specify that the evidence is insufficient to justify the verdict, for
the reason that no change of possession from vendor to vendee was shown. This objection is
answered by the fact that the delivery of the possession of the enclosed land carried with it the
possession of the personal property thereon. This appears to be conceded by counsel, and we
shall assume that the point has been abandoned as untenable.
The other exceptions arise upon the rulings of the court at the trial.
1. It was claimed that the evidence of the plaintiff differed from that given at the former
trial; and, for the purpose of establishing the variance, defendant offered in evidence the
statement upon motion for new trial and appeal used at the former hearing of the cause. The
court excluded it. A statement upon motion for new trial and appeal is made for the purpose
of explaining the errors upon which the moving party and appellant will rely. If it contains the
evidence introduced at the trial, it is for this purpose. Counsel frequently agree to the
correctness of a statement, or that it contains all of the evidence given at the trial, and these
agreements are accepted as true for the purpose for which they are made. But, in fact,
notwithstanding stipulations of this nature, statements rarely embody more of the evidence or
rulings than counsel consider necessary to illustrate the errors assigned; and matter upon
which no question is made, although a part of the history of the case, is set aside as
unnecessary.
sary to illustrate the errors assigned; and matter upon which no question is made, although a
part of the history of the case, is set aside as unnecessary. A document prepared in this way, it
is scarcely necessary to say, should not be received without preliminary proof that its report
of the evidence is correct.
2. The next specification of error is to the refusal of the court to allow the witness Tognini
to testify that, after his purchase of the ranch under an execution issued upon his judgment
against the vendor of plaintiff's intestate, he built a new fence around the ranch. The
specification includes also an offer to prove the condition of the old fence at the time of the
construction of the new one, but an examination of the record will show that this latter offer
was not made, and it will not, therefore, be considered. The offer relating to the building of
the fence was not coupled with any offer of evidence tending to prove a necessity for its
construction, or that the inclosure was insufficient. The evidence of itself was immaterial, and
was properly excluded.
3. Appellant again sought to prove the condition of the fence at the time of the sale in the
month of November, 1882, by three witnesses who had examined it during the month of June,
1885, a few days before the trial. The purpose of the testimony was to prove the insufficiency
of the inclosure. The district court correctly considered that a knowledge of the condition of a
brush fence at the time of trial was not a fact from which the jury could infer its condition
twenty-nine months before.
4. The remaining exception arose upon the refusal of the court to give an instruction
identified in the transcript as defendant's instruction No. 5. The instruction is
self-contradictory and misleading, and should have been refused.
____________
19 Nev. 437, 437 (1887) Kinkead v. Benton
[No. 1249.]
JOHN H. KINKEAD, et al., Appellants, v. J. M. BENTON,
et al., Respondents.
UndertakingState OfficersIndividualsNo Privity.An injunction suit was prosecuted for the purpose of
restraining the present plaintiffs, as state officers, from exercising the authority, given by the statute, for
the construction of an insane asylum.
construction of an insane asylum. The present action is brought to recover the amount of the undertaking
in the injunction suit from the sureties thereonby the plaintiffs as individuals, and not in their official
capacity as state officers: Held, that there is no privity between plaintiffs as individuals, and the sureties
on the undertaking, and that no recovery can be had in the present action.
W. E. F. Deal, for Appellants.
C. S. Varian and Trenmor Coffin, for Respondents.
This action is brought to recover from the defendants as obligors upon a statutory
undertaking given in consideration of the issuance of an injunction. A demurrer to the
complaint, both general and special, was interposed and sustained. Plaintiffs declined to
amend, and judgment was entered against them. The complaint alleges that the said plaintiff
John H. Kinkead was the governor of the state of Nevada from the first Monday of January,
1879, to the first Monday of January, 1883; that said plaintiff J. F. Hallock was, for the same
period, controller of said state, and that said plaintiff L. L. Crockett was, for the same period,
treasurer of said state; that on the fourth day of May, 1881, in an action brought by Jacob
Klein against said plaintiffs, as such governor, controller, and treasurer, in the district court of
the second judicial district of the state of Nevada, in and for the county of Ormsby, an
injunction issued out of said last-named court, and was served on said plaintiffs, as such
officers, enjoining and restraining them from taking any moneys from the state school fund of
said state of Nevada for the purpose of constructing or furnishing any buildings to be used as
an asylum for the insane, or for providing plans therefor, and enjoining and restraining the
plaintiff J. F. Hallock, as such controller, from drawing any warrant against the fund created
by the act of the legislature of the state of Nevada entitled An act to provide for the taking
care of the insane of the state of Nevada,' approved February 24, 1881, and enjoining and
restraining said plaintiff L. L. Crockett, as state treasurer, from paying any such warrants,
and enjoining and restraining said plaintiffs, as such officers, from signing,
countersigning, or depositing in the state school fund or the state treasury any of the four
per cent. bonds mentioned in said act, and enjoining and restraining them, as such
officers, from doing any act whatsoever in and about the premises."
treasurer, from paying any such warrants, and enjoining and restraining said plaintiffs, as such
officers, from signing, countersigning, or depositing in the state school fund or the state
treasury any of the four per cent. bonds mentioned in said act, and enjoining and restraining
them, as such officers, from doing any act whatsoever in and about the premises.
The condition of the obligation is that the plaintiff will pay to the parties enjoined such
damages, not exceeding the sum of five hundred dollars, as they may sustain by reason of the
injunction, if the court finally decide that plaintiff was not entitled thereto. The injunction suit
was prosecuted for the purpose of restraining the present plaintiffs, as state officers, from
exercising the authority conferred upon them by the law directing the construction at Reno of
an asylum for the insane. The plaintiffs have brought the present action unofficially and as
individuals. They were not sued in their private capacity, and the obligation does not run to
them as individuals. There is no privity between them and the obligors, and no recovery can
be had. Judgment affirmed.
____________
19 Nev. 439, 439 (1887) Ex Parte Rosenblatt
[No. 1267.]
Ex-Parte M. W. ROSENBLATT.
Drummer LawUnconstitutionalRegulation of Commerce.The Act providing for the licensing of traveling
merchants, and merchants doing business through soliciting agents, commonly known as drummers,
(Gen. Stat. 1269) is, as applied to citizens of other states, a regulation of commerce, in violation of the
constitution of the United States.
Habeas Corpus.This court will review, upon habeas corpus, the question of the constitutionality of an act
under which petitioner has been convicted, and if the act is unconstitutional the petitioner will be
discharged.
Application for habeas corpus.
R. H. Lindsay and S. D. King, for Petitioner:
I. Nevada drummer law is unconstitutional. (Robbins v. Taxing District, 120 U. S. 489;
Corson v. Maryland, 120 U. S. 502; Fargo v. Michigan, 121 U. S. 230.)
II. The unconstitutionality of an act under which a party is convicted, renders the
judgment a nullity, and may be inquired into upon habeas corpus. (Ex-parte Lange, 18 Wall.
175; Ex-parte Siebold, 100 U. S. 371; Ex-parte Reed, 100 U. S. 13; Ex-parte Yarborough,
110 U. S. 651; Ex-parte Royall, 117 U. S. 241; Ex-parte Wong Yung Guy, 6 Saw. 237; Yick
Wo v. Hopkins, 118 U. S. 356; Ex-parte Kearney, 55 Cal. 212; Ex-parte Westerfield, 55 Cal.
550; Ex-parte Hollis, 59 Cal. 406; Ex-parte Harold, 47 Cal. 129; Ex-parte Wall, 48 Cal. 280;
Ex-parte Frank, 52 Cal. 606; Ex-parte Maguire, 57 Cal. 604; Parrott's Chinese Cases, 6
Saw. 237; In re Guerrero, 69 Cal. 88; In re Hang Ki, Id. 149; In re Lawrence, Id. 609; In re
Yick Wo, 68 Cal. 294.)
J. F. Alexander, Attorney-General, and T. Coffin, for State:
I. This proceeding is not the proper remedy. (Ex-parte Winston, 9 Nev. 71; Ex-parte
Twohig, 13 Nev. 302; Ex-parte Parks, 93 U. S. 18; Ex-parte Reed, 100 U. S. 13; Gen. Stat.
3689.) Petitioner has a plain, speedy and adequate remedy by writ of error to the supreme
court of United States from the district court of Washoe county. (Rev. Stat. U. S. Secs. 709,
710, 999, 1003, 1004.) The case on its merits has been by this court considered and decided.
(Ex-parte Robinson, 12 Nev. 263.)
The petitioner was convicted of a violation of an act of the legislature of the state approved
February 23, 1885, entitled An act providing for the licensing of traveling merchants, and
merchants doing business through soliciting agents, commonly known as drummers,' (Gen.
Stat. 1269,) in acting as soliciting agent or drummer without procuring a license therefor. He
is held in custody under a commitment issued upon the judgment.
In his petition for a writ of habeas corpus, he alleges that he is a resident of the state of
California, and that he was, at the time of his arrest, a traveling merchant, soliciting agent,
and drummer offering goods, wares, and merchandise for sale in the town of Reno, to be
delivered at a future time from the state of California by his principals, residents of that state;
that, by the act of the legislature before mentioned, it is made a misdemeanor to exercise any
such occupation without having first obtained a license therefor;
obtained a license therefor; and that, under this law, he was convicted, first, in the court of the
justice of the peace, and afterwards, upon appeal, in the district court of Washoe county. He
avers that the enactment of the legislature imposing the license tax is unconstitutional and
void, because repugnant to that clause of the constitution of the United States which declares
that congress shall have power to regulate commerce among the several states; and prays to
be released from his imprisonment.
The supreme court of the United States in a recent case, that of Robbins v. Taxing District
Shelby Co., 120 U. S. 489, considered the constitutionality of a statute of the state of
Tennessee involving the same question. The Tennessee statute declared that all drummers,
and all persons not having a regular licensed house of business in the taxing district, offering
for sale or selling goods, wares, or merchandise therein by sample, shall be required to pay to
the county trustee the sum of ten dollars per week, or twenty-five dollars per month, for such
privilege, and no license shall be issued for a longer term than three months. Robbins, a
citizen of the state of Ohio, employed by citizens of that state having a business house at
Cincinnatti, was convicted of a violation of the law. On appeal to the supreme court of the
state the judgment was affirmed. The case was then carried to the supreme court of the United
States upon a writ of error. It was held that the business of selling goods which were in Ohio
at the time of sale, and were at a future time to be delivered to the purchaser in the state of
Tennessee, constituted interstate commerce, and that the license tax imposed by the statute
was a tax upon interstate commerce and invalid.
The statute of Tennessee and that of this state do not materially differ. Neither imposes a
tax upon citizens of other states that does not equally apply to its own citizens, nor is there
any discrimination in either statute against other states or their products. The principles of the
decision of the supreme court in the Robbins Case must be accepted as establishing the
unconstitutionality of the statute under which the petitioner was convicted.
It is urged, however, that the district court had jurisdiction to determine the
constitutionality of the statute, and that its judgment cannot be reviewed upon a writ of
habeas corpus.
judgment cannot be reviewed upon a writ of habeas corpus. But the district court did not
have jurisdiction, because the state could not lawfully impose the license tax. There was, in
legal contemplation, no law creating the offense of which the petitioner was convicted.
An unconstitutional law, said the supreme court of the United States in Ex-parte
Siebold, 100 U. S. 377, is void, and is as no law. An offense created by it is not a crime. A
conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal
cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the
sense that there may be no means of reversing it. But personal liberty is of so great moment in
the eye of the law that the judgment of an inferior court affecting it is not deemed so
conclusive but that, as we have seen, the question of the court's authority to try and imprison
the party may be reviewed on habeas corpus by a superior court or judge having authority to
award the writ. (See, also, Ex-parte Lange, 18 Wall. 163; Ex-parte Parks, 93 U. S. 18;
Ex-parte Yarborough, 110 U. S. 654.)
It is ordered that the petitioner be discharged.
____________
19 Nev. 442, 442 (1887) Elam v. Griffin
[No. 1254.]
R. H. ELAM, et al., Appellants, v. W. E. GRIFFIN, et al.
Respondents.
Change of VenueDemand for.Defendants, residents of Eureka county, were sued, in an action for debt, in
Lincoln county: Held, that the court had no authority to change the venue because no demand in writing
was made therefore, as contemplated by section 3043, Gen. Stat.
Appeal for the District Court of the Sixth Judicial District, Lincoln County.
C. H. Patchen, G. S. Sawyer and Trenmor Coffin, for Appellants.
Baker & Wines, and T. J. Osborne, for Respondents.
The defendants are residents of Eureka county, and are sued in an action of debt in the
district court of Lincoln county.
19 Nev. 442, 443 (1887) Elam v. Griffin
in an action of debt in the district court of Lincoln county. Upon their motion, the place of
trial of the action was changed to the county of their residence, but no demand in writing
therefor was made, as contemplated by section 3043, Gen. Stat. The object of the demand is
to allow the plaintiff an opportunity of voluntarily correcting his error by amendment,
stipulation, or otherwise, without the expense and delay of a motion. (Vermont C. R. R. Co. v.
Northern R. R. Co., 6 How. Pr. 106.) By omitting to make the demand, respondents waived
the right to have the case heard in Eureka county, and the action became triable in Lincoln
county. (Hasbrouck v. McAdams, 4 How Pr. 342; Houck v. Lasher, 17 How. Pr. 520;
Milligan v. Brophy, 2 Code Rep. 118; Estrada v. Orena, 54 Cal. 407; Byrne v. Byrne, 57 Cal.
348; Watkins v. Degener, 63 Cal. 500.)
Order was reversed and cause remanded.
____________
19 Nev. 445, 445 (1885) Memorial to Bernard Crosby Whitman
IN MEMORIAM
____________
Bernard Crosby Whitman
____________
Died August 5, 1885
PROCEEDINGS
in
THE SUPREME COURT
____________
In the Supreme Court of the State of Nevada,
}

}
September 14, 1885.
}
Present:
Hon. Charles H. Belknap, Chief Justice.
Hon. Orville R. Leonard, }
Associate Justices.

Hon. Thomas P. Hawley, }
Officers of the court and several members of the bar. On opening court, at 10 o'clock
a.m., the chief justice announced the death of Hon. B. C. Whitman, a former member of this
court, and submitted the following tribute to his memory:
IN MEMORIAM.
Since the last meeting of the court, we have learned with profound sorrow of the death
of the Honorable B. C. Whitman.
He was a member of this court for upwards of six years, and in January 1873, became,
by our system of promotion, its chief justice. Some of us were associated with him upon the
bench, and all of us enjoyed his personal friendship. In view of our high appreciation of his
public and private character, we deem it fitting to make this public announcement of his
death, and to render a proper tribute of respect to his memory.
Judge Whitman had by industry, learning and unsullied integrity attained a high
position in his profession. As a lawyer he presented legal propositions with precision,
clearness and candor. His arguments and briefs were prepared with learning and ability, and
greatly aided the court in the examination of the questions to be adjudicated.
Upon his accession to the bench, he brought to this court the qualities that
distinguished him at the bar. Of broad experience, great quickness in the apprehension of the
material facts of a case, learned in the legal principles and decided cases, and of ready and
accurate judgment, he made a most valuable member of the court. To his associates he was
uniformly kind and courteous, and in consultations his ready knowledge greatly lightened
their labors. He was an able, learned and upright judge, and his opinions, to be found in our
published reports, were the result of his honest convictions of right.
In private life he was an example worthy of imitation. His refined taste and attractive
manners, united with a pure character and a generous manly nature, made him admired and
loved. His considerate tenderness as a husband, his kindness as a father, his devotion to those
to whom he was bound by the endearing relations of domestic life, were charming traits of his
character. Without intruding upon their grief, we tender them our deep sympathy in this
affliction, and commend them to the consolation to be found in the honorable life and exalted
character of the husband and father they mourn.
This proceeding will be entered of record, and as a further mark of regard for the
memory of the deceased, the court will now adjourn for the day.
____________
19 Nev. 449, 449 (1886) Memorial to James F. Lewis
IN MEMORIAM
____________
JAMES F. LEWIS
____________
Died August 17, 1886
PROCEEDINGS
in
THE SUPREME COURT
____________
}

}
September 6, 1886.
}
Present:
Hon. Charles H. Belknap, Chief Justice.
Hon. Orville R. Leonard, }
Associate Justices.

Officers of the court and several members of the bar. On the opening of the court, at
10 o'clock a.m., the chief justice announced the death of Hon. J. F. Lewis, a former member
of this court, and submitted the following tribute to his memory:
IN MEMORIAM.
We are again called to lament the death of one of our former members.
Hon. James F. Lewis died at Yuma, in the territory of Arizona, on the seventeenth day
of August last. In view of his honorable career upon the bench of this court, and as one of its
members, we desire to place upon its records a memorial of his high character and judicial
and professional ability.
Upon the organization of the court in the month of December, 1864, Judge Lewis
became its chief justice. At the succeeding election he was re-elected, and remained upon the
bench until the month of January, 1S73.
the month of January, 1873. The volumes of our reports during this period contain the
published opinions pronounced by him. They are clear, concise and learned, and attest his
ability, industry and conscientious performance of duty. His services were of great value to
the state and profession, and deservedly gained for him a high reputation. Upon retiring from
the bench he resumed the practice of his profession of the law. The qualities that had
distinguished him upon the bench, characterized him at the bar. In the trial of causes and the
presentation of legal questions he was logical and candid. His briefs and arguments at the bar
evinced thorough preparation of his cases. He carefully considered the legal principles
applicable, and examined the authorities bearing upon them and mastered the questions
involved before presenting his views to the court. His success at the bar is attributable to his
well applied industry rather than to reliance upon readiness of thought or language at the
argument. His mind was richly stored with legal principles and decided cases, and his
association with his brothers of the bar, and especially the younger members, was kind and
instructive and will long be borne in affectionate remembrance. He was highly esteemed for
the purity of his character and his many deeds of unostentatious charity. An able and upright
judge, an honest lawyer, a good citizen, he commanded and retained the confidence and
respect of his fellow men. The circumstances of his sudden and unexpected death while
engaged in the active duties of his profession are sad and affecting. We deeply sympathize
with his bereaved widow and friends in their affliction, and commend them to the consolation
(though inadequate) to be found in the record of his useful and honorable life.
These sentiments will be entered in the records of the court and a copy transmitted to
Mrs. Lewis, and as a further mark of respect to the memory of the deceased, the court will
now adjourn for the day.
____________
19 Nev. 453, 453 (1888) Memorial to Warner Earll
IN MEMORIAM
____________
WARNER EARLL
____________
Died January 10, 1888
PROCEEDINGS
in
THE SUPREME COURT
____________
}

}
January 16, 1888.
}
Present:
Hon. Orville R. Leonard, Chief Justice.
Associate Justices.

Hon. Charles H. Belknap, }
Officers of the court and several members of the bar. On opening court, at 10 o'clock
a.m., the chief justice announced the death of Hon. Warner Earll, a former member of this
court, Justice Hawley submitted the following tribute to his memory:
IN MEMORIAM.
Hon. Warner Earll, a member of this court during the years 1875 and 1876, died on
the tenth day of January, A. D. 1888, at San Luis Obispo, California.
Although his term of judicial service was brief, and the number of opinions written by
him limited, he remained long enough and wrote enough to impress the judiciary and bar of
this state very favorably, both as to his legal learning and judicial ability, as well as to his
high personal and moral integrity, and secured for himself a permanent abiding place in the
regard and esteem of his associates.
He was simple in his tastes, quiet and unassuming in his demeanor. His character as a
man and as a judge was above reproach. he was absolutely free from any pretension of
superiority over his fellow men, and was ever ready to consult with his associates and to
discuss, with great candor and fairness, all questions upon which any difference of
opinion might be expressed.
with his associates and to discuss, with great candor and fairness, all questions upon which
any difference of opinion might be expressed. He readily grasped the main points of a case
and his general knowledge of the principles of the law enabled him to give a clear,
comprehensive, and convincing statement of the controlling questions which, in his
judgment, ought to govern the decision in the case at hand.
Without any pride of opinion his desire always was to reach a conclusion founded
upon the settled principles of the law, and based upon the equity and justice of the particular
case. When convinced of the correctness of his position he was positive and unchangeable.
He was a close, laborious, and earnest student, and his work was always carefully,
deliberately, patiently, and well done, with nothing slighted or neglected. He was an honest,
conscientious, pure, and able judge in whose judgment lawyers and litigants could safely rely
for a fair and impartial determination of their rights.
Whether as an attorney, judge or citizen he conscientiously sought to do that which he
believed to be right, and around his memory there will ever remain, to those who knew him
well, a fame that no amount of financial success, so eagerly sought by most men, can give. He
lived beyond the three-score years and ten in the possession of all his faculties, and went
quietly to sleep while engaged in the daily routine of his professional duties. He has crossed
the dark and unknown river and his quiet, mild, and gentle spirit is at rest in a land where the
cares and troubles that constantly disturb the living are unknown.
We tender to his family our heartfelt sympathy in their bereavement for the loss of a
kind husband, indulgent father, and ever faithful and true friend, and, to give permanent
expression to our views, it is ordered that this tribute of respect be spread upon the records of
this court and a copy thereof be transmitted to the widow of the deceased.
As a further mark of our respect and esteem this court will now adjourn for the day.
____________

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