Nevada Reports 1909-1910 (32 Nev.) PDF

32 Nev.
1, 1 (1910)
RULES OF THE BOARD OF PARDONS.
As Amended to January, 1910
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1. The regular meetings of the board shall be held on the Wednesday after the first
Monday in January, and on the second Monday of 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 act of February 8, 1869, as amended February 20, 1875 (Comp. Laws, sec.
1449, et seq.); provided, that no application that has been filed with, or considered by, the
board of parole commissioners at any session next preceding the regular meeting of the board
of pardons shall be heard or considered by this board unless consent be given by a majority
thereof.
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 clerk 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 once 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.
32 Nev. 1, 2 (1910) Rules of Board of Pardons
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.
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 signify his vote in favor of or against an
application by answering aye or no.
9. No document relating to a pending application, 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. All applications must be filed with the clerk at least ten days before the meeting of the
board, at which the application is to be considered, unless the time be shortened by a majority
of the board.
11. All papers pertaining to applications must be properly indorsed 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.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board.
13. Upon behalf of an applicant for pardon who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the
district judge and district attorney of the county in which the indictment was found, at
least thirty days before the hearing, unless, for good cause shown, this time be shortened
by the board.
32 Nev. 1, 3 (1910) Rules of Board of Pardons
appearing and testifying under oath, or by depositions or affidavits, copies of which shall
have been served upon the district judge and district attorney of the county in which the
indictment was found, at least thirty days before the hearing, unless, for good cause shown,
this time be shortened by the board.
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32 Nev. 5, 5 (1910) Rules of Parole Commissioners
Rules of Board of Parole Commissioners
Adopted January, 1910
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1. The regular meetings of the board shall be held immediately after the regular meetings
of the board of pardons.
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 parole shall be considered by the board unless presented in the form
and manner required by the act of February 8, 1869, as amended February 20, 1875 (Comp.
Laws, sec. 1449, et seq.); provided, that no application for parole that has been filed with, or
considered by, the board of pardons at any session next preceding the regular meeting of the
board of parole commissioners shall be heard or considered by this board unless consent be
given by a majority thereof.
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 once 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.
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 signify his vote if favor of or against an
application by answering aye or no.
9. No document relating to a pending application, or to a prior application which has been
denied, shall be withdrawn from the custody of the secretary after filing, unless by consent of
the board.
10. All applications must be filed with the secretary at least ten days before the regular
meeting of the board, at which the application is to be considered, unless the time be
shortened by a majority of the board.
11. All papers pertaining to applications must be properly indorsed 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 Parole Commissioners, and include the name of the
document.
12. Attorneys shall first present their evidence through witnesses, affidavits, the record or
documents, and then argue their cases concisely and not exceeding one-half hour for each
counsel appearing, unless additional time be granted by the board, and in the event that an
attorney digresses from the evidence, or states facts not supported thereby, or reiterates in his
argument, he shall be called to order. Papers shall be filed separately, or attached before they
are read in evidence, and shall not be withdrawn without the order of the board or some
member thereof.
13. On behalf of an applicant for parole who has been convicted of felony, evidence of
facts relating to the commission of the crime other than that contained in the record may be
presented only by witnesses, who know the circumstances, appearing and testifying under
oath, or by depositions or affidavits, copies of which shall have been served upon the
district judge and district attorney of the county in which the indictment was found, at
least thirty days before the hearing, unless, for good cause shown, this time be shortened
by the board.
appearing and testifying under oath, or by depositions or affidavits, copies of which shall
have been served upon the district judge and district attorney of the county in which the
indictment was found, at least thirty days before the hearing, unless, for good cause shown,
this time be shortened by the board.
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32 Nev. 9, 9 (1910) Rules of State Library
RULES OF STATE LIBRARY.
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The number of users of the library is so small under the law that it has not heretofore been
considered necessary by those in charge to publish any rules in addition to those included in
the statute.
The office hours are from 10 to 12 o'clock in the morning, and from 1 to 4 in the
afternoon, on judicial days.
Those using books, except members of the supreme court, are requested not to replace
them on the shelves.
Books are not allowed to be taken beyond the limits of the capital city.
Books of reference, including law and miscellaneous, art works and unbound magazines,
are not to be taken from the library.
The use of the library is extended to attorneys practicing before the supreme and district
courts, when in the capital city.
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32 Nev. 11, 11 (1910) State Library Regulations
NEVADA STATE LIBRARY.
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Sections of the Law Relating to Use of Books.
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From Compiled Laws of 1900.
Sec. 1518. The state librarian shall keep a register of all books, magazines, papers,
pamphlets, maps, charts, and other property added to the library, and of the cost thereof, and
shall stamp the same with the library seal. He shall keep a register of all books taken from the
library, when taken out, by whom, and when returned. He shall not permit any person or
persons, except such as are authorized by law, to take from the library any book, magazine,
paper, or other property belonging thereto.
Sec. 1522. Upon assuming the duties of his office the secretary of state, as ex officio state
librarian, shall execute a receipt and deliver the same to the justices of the supreme court for
all books and other property in the state library.
Sec. 1523. All books, maps, and charts, now belonging to, or which may hereafter come
into possession of, this state, by purchase or otherwise; all books, maps, charts, pamphlets,
and other documents, which, by any state officer, may be received in their [his] official
capacity from the general government, or in exchange from other states and territories, or
received from foreign nations, or donated to the state by any person or corporation, shall be
placed in the state library, and shall be carefully preserved by the librarian.
Sec. 1525. Books may be taken from the state library by the members of the legislature
during its session, and at any time by the governor and other officers of the executive
department of this state who are required to keep their offices at the seat of government, the
justices of the supreme court, and attorney-general; provided, that no person shall be
permitted to have more than two volumes of miscellaneous works from said library at the
same time.
32 Nev. 11, 12 (1910) State Library Regulations
mitted to have more than two volumes of miscellaneous works from said library at the same
time.
Sec. 1526. The librarian shall cause to be kept a register of all the books issued and
returned at the time they shall be so issued and returned, and none of the books, except the
laws, journals and reports of this state, which may be taken from the library by members of
the legislature, during the session, and law books taken by the judges of the supreme court,
shall be retained more than two weeks; and all books taken by the members of the legislature
shall be returned at the close of the session.
Sec. 1527. If any person materially injure, or fail to return any books taken from the
library within the time prescribed in the foregoing section, he shall forfeit and pay to the
librarian, for the benefit of the library, three times the value thereof, or of the set to which it
belongs.
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32 Nev. 13, 13 (1910) Rules of Supreme Court
RULES
OF THE
Supreme Court of the State of Nevada
Adopted September 1, 1879; as amended to July 7, 1908.
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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.
Examination for Attorneys-at-Law.
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:
Examination by Committee.
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.
Examination to Embrace.
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;

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.
Examination by Committee.
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.
Fee To be Deposited Before Examination.
5. The fee of thirty-five dollars 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.
Filing Transcript.
In all cases where an appeal has been perfected, and the statement settled (if there by 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.
Appeal May Be DismissedCan Be Restored.
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.
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.
How Restored.
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 the same is in due form; the
fact and time of the settlement of the statement, if there by one; and also that the appellant has
received a duly certified transcript, or that he 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.
Printed Transcripts.
1. All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the other edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten lines each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines.
Nothing smaller than minion type leaded shall be used in printing.
Transcripts in Criminal Cases.
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. The transcript, if written,
shall be in a fair, legible hand, and each paper or order shall be separately inserted.
To Be Indexed.
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.
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.
Cannot Be Filed.
4. No record which fail to conform to these rules shall be received or filed by the clerk of
the court.
RULE V.
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI.
Cost of Typewriting or Printing Transcripts.
1. The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes and pleadings, affidavits, briefs, or other papers constituting the record
in original proceedings upon which the cause is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than twenty-five cents per folio of one hundred words
shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per
folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by
the clerk in accordance with the fee bill.
To Serve Cost Bill, When.
2. Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the
opposite party a verified cost bill, setting forth or stating the actual cost of such printing or
typewriting, and no greater amount than such actual cost shall be taxed as costs.
stating the actual cost of such printing or typewriting, and no greater amount than such actual
cost shall be taxed as costs.
Mode of Objecting to Costs.
3. If either party desires to object to the costs claimed by the opposite party, he shall,
within ten days after the service upon him of a copy of the cost bill, file with the clerk and
serve his objections. Said objections shall be heard and settled and the costs taxed by the
clerk. An appeal may be taken from the decision of the clerk, either by written notice of five
days, or orally and instanter, to the justices of this court, and the decision of such justices
shall be final. If there be no objections to the costs claimed by the party entitled thereto, they
shall be taxed as claimed in his cost bill.
Indorsed Upon Remittitur.
4. In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed
upon such remittitur or order, and shall be collected as other costs in such district court, or
other inferior court or tribunal, and shall not be subject to retaxation in such district court or
other tribunal.
RULE VII.
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record, as may be
required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
RULE VIII.
ExceptionsDiminution of Record.
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 curred 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.
the points of error assigned, which might be curred 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.
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
RULE X.
Calendar to Consist ofUpon Motion.
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 cases, both civil and criminal, in which the appeal has been 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 either party, after ten days'
written notice of such motion, and upon filing the transcript.
Subdivision 2 is hereby abrogated.
3. Causes shall be placed on the calendar in the order in which the transcripts are filed by
the clerk.
RULE XI.
Time for Appellant to Serve BriefRespondent.
1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally.
2. The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the points made.
Oral Argument.
3. The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein provided,
shall be deemed a waiver by such party of the right to orally argue the case, and such party
shall not recover cost for printing or typewriting any brief or points and authorities in the
case.
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.
Optional in Criminal Cases.
5. In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
When Submitted.
6. When the oral argument is concluded, the case shall be submitted for the decision of
the court.
Stipulation as to Time.
7. The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII.
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII.
Number of Copies To Be Filed.
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.
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV.
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall serve a copy of the petition upon opposing counsel, who within
ten days thereafter may file a reply to the petition, and no other argument shall be heard
thereon. No remittitur or mandate to the court below shall be issued until the expiration of the
fifteen days herein provided, and decisions upon the petition, except upon special order. The
times herein provided for may be shortened or extended, for good cause shown, by order of
court.
RULE XVI.
Opinion To Be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII.
No Paper To Be Taken Without Order.
No paper shall be taken from the 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.
Writ of Error, or Certiorari.
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.
Writ of Error to Operate as Supersedeas.
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.
When Returnable.
The writ of error shall be returnable within thirty days, unless otherwise specially directed.
RULE XXI.
To Apply.
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.
Time Concerning Writ.
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.
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue, or any other interlocutory
order made before trial, will be heard at any regular or adjourned term, upon three days'
notice being given by either appellant or respondent, when the parties live within twenty
miles from 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.
Notice of Motion.
In all cases where notice of a motion is necessary, unless, for good cause shown, the time
is shortened by an order of one of the justices, the notice shall be five days.
RULE XXV.
Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.
The typewriting shall be the first impression, clearly and legibly done, with best quality of
black ink, in type not smaller than small pica, upon a good quality of typewriting paper,
thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of
a size suitable for convenient handling and ready reference, and arranged and indexed as
required by the rules of this court. When so typewritten such transcript, in the discretion of
the party appealing, need not be printed, but, if printed, all the rules concerning the same
shall still apply thereto.
discretion of the party appealing, need not be printed, but, if printed, all the rules concerning
the same shall still apply thereto.
Briefs May Be Typewritten.
2. Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
Copy To be ServedTwo Copies To Be Filed.
3. When so typewritten, but one copy of such transcript need be filed in the case; but a
copy thereof shall be served upon the opposite party. Two copies of the briefs and points and
authoritiesviz., the first impression and a copy thereofshall be filed with the clerk, and a
copy shall be served upon each opposite party who appeared separately in the court below.
RULE XXVI.
Concerning Certificate of Naturalization.
Under no circumstances shall this court, or any of the district courts of the State of
Nevada, hear proof for the issuance of, or issue, final papers or certificates of naturalization to
any applicant therefor, at any time within the sixty days immediately preceding any general or
special state election of this state.
RULE XXVII.
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be filed or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
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32 Nev. 23, 23 (1910) Rules of District Court
RULES
OF THE
District Court of the State of Nevada
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RULE I.
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II.
Calendars to ContainAttorneys.
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, and also to the judge who is to sit in his county, a full statement
of the condition of the business of the court as shown by the calendars.
RULE III.
Notice as to Time.
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. 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.
When Calendar CalledOrder.
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. 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.
Law Day.
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.
Relating to Motions.
When any motion or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII.
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs of 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.
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.
DemurrerSet Down for Trial.
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.
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X.
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving party, except pleadings or
other records of the court, shall be served with the notice of motion.
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.
Hearing of Motions.
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 indorsed and filed before the affidavits shall be used. The manner of making
motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
RULE XII.
Hearing of Motions of ContinuanceTestimony of AbsenteesCounter Affidavit.
All motions for the continuance of causes shall be made on affidavit; and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the 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.
nesses 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.
Attorneys as Witnesses.
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.
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV.
DepositionsInterrogatories, How Settled.
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, that 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.
submission to the court or judge, or may stipulate that the depositions may be taken without
written interrogatories.
RULE XVI.
Depositions.
When a deposition is received by the clerk, he shall indorse 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 indorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII.
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
RULE XVIII.
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX.
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX.
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose property
is attached, against damages, the court or judge may require an additional undertaking to be
filed, and if not filed the attachment shall be dissolved.
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.
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII.
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause 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.
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrancers of the mortgaged premises, and to examine and report whether the
mortgages premises can be sold in parcels, if the whole amount secured by the mortgage
has not become due.
report whether the mortgages premises can be sold in parcels, if the whole amount secured by
the mortgage has not become due. If any of the defendants have been served by publication,
the order of reference shall also direct the referee to take proof of the facts and circumstances
stated in the complaint, and to examine the plaintiff, or his agent, on oath, as to any payments
which have been made, and to compute the amount due on the mortgage, preparatory to the
application for decree of foreclosure.
RULE XXIV.
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for 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.
RULE XXV.
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI.
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or 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, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder indorsed 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.
ceedings. The certificate shall state the title of the action, the order staying the execution or
other proceedings, and the date of such order, together with the filing and approval of the
undertaking above required, and the date of such filing and approval; and such certificate
shall operate as a supersedeas of the execution or a vacation of the order.
RULE XXVII.
Stipulations.
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.
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX.
Guardians.
No person shall be appointed guardian ad litem, except 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.
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant,
whenever appointed for that purpose by an order of the court. He shall examine into the
circumstances of the case, so far as to enable him to make the proper defense, and shall be
entitled to such compensation as the court may deem reasonable.
RULE XXXI.
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII.
To Furnish to the Clerk.
The counsel obtaining any order, judgment, or decree shall furnish the form of the same to
the clerk.
RULE XXXIII.
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV.
Retax Costs.
The party against whom judgment is entered shall have two days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV.
Mechanics' Liens.
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.
Motions.
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.
Appeal from Justices' CourtDismissed, When.
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.
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.
RULE XXXVIII.
Appeal Dismissed, When.
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 has not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
RULE XXXIX.
Duties of Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passage way to the bar clear for ingress or egress.
RULE XL.
Instructions To Be Settled, When.
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
agreement, and permit counsel to use them when addressing the jury.
RULE XLI.
Trials.
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.
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.
RULE XLII.
Writs.
When an application or petition for any writ, rule or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII.
Duties of Judge.
No judge, except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to act.
RULE XLIV.
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the facts upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV.
Vacating Judgments, Orders, Etc.Time to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification or correction shall give notice to
the adverse party of a motion 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.
____________
32 Nev. 51, 51 (1909)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1909
____________
32 Nev. 51, 51 (1909) Henningsen v. Tonopah and Goldfield Railroad Co.
[No. 1823]
R. M. HENNINGSEN, Respondent, v. TONOPAH AND GOLDFIELD
RAILROAD COMPANY, Appellant.
1. Appeal and ErrorDismissalWaiverDefects.
Where the parties stipulated without reservation on March 13th that appellant have additional time in
which to prepare and file its opening brief, and on April 2d stipulated that respondent have to and including
April 28th in which to prepare and file his brief, respondent thereby waived any right to move on April
19th to dismiss on the ground that a copy of the statement or transcript had not been served.
Appeal from the District Court of the Fifth Judicial District of the State of Nevada, Nye
County; J. P. O'Brien, Judge.
Action by R. M. Henningsen against the Tonopah and Goldfield Railroad Company. On
motion to dismiss defendant's appeal upon judgment for plaintiff. Motion denied.
The facts sufficiently appear in the opinion.
McIntosh & Cooke, for Respondent:
I. Rule XXV of the supreme court provides that all tanscripts of the record in any action
or proceeding may be typewritten (subdivision 1), and that when so typewritten * * * a
copy thereof shall be served on the opposite party" {subdivision 3).
* * * a copy thereof shall be served on the opposite party (subdivision 3). We take it that the
rule plainly means precisely what it saysnamely, all transcriptsand this is not only a
transcript of a portion of the record, but a transcript of the entire record essential to a
determination of the appeal from the order. The rule is mandatory upon the court as well as
litigants, and, no discretion having been therein reserved, it cannot, so long as it remains
unrescinded, unmodified and unrepealed, be suspended, either in a particular case or
otherwise. That this is the law in this state we respectfully cite: Haley v. Eureka County Bank,
20 Nev. 423; Sherman v. Shaw, 9 Nev. 152; Kirman v. Johnson, 30 Nev. 146. That the rule is
as binding in force and effect as a statute, see Lightle v. Ivancovich, 10 Nev. 41, which quotes
with approval Hagar v. Mead, 25 Cal. 600; Haley v. Eureka County Bank, supra.
II. Neither rule XXV nor the other statutory provisions referred to are contrary to or
abortive of the act of 1895 (Comp. Laws, 3862), nor was the act of 1895 a repealer of or
repudiative of any of the provisions of the practice act regulating appeals. It merely
supplemented existing rules and legislation on the subject, as evidence the intention of the
legislature when it says, in section 3863, that where it is necessary * * * they shall be copied
in the transcript the same as heretofore. The act of 1895 enlarged the privileges of litigants,
but in no manner relieved them of service by copy and other jurisdictional requirements
where any enlargement of the method of appeal by that act prescribed was sought to be
invoked or used. It is permissive legislation requiring the party to confine himself to the
original papers, and, where he elects to use and does attempt to use a transcript of all or some
of those original papers, he cannot, by seeking to make that transcript or statement an
original, indirectly escape that which the law in such cases directly prescribes, but in that
event must comply with all the provisions of law in that regard. It is a fundamental and
elementary principle that the law will not permit a person to do by indirection what it
prohibits him from doing directly. There is nowhere in this act any relief from the
jurisdictional requirements. The 1895 act did not alter the method of taking or perfecting
appeals.
act did not alter the method of taking or perfecting appeals. (Streeter v. Johnson, 23 Nev. 199;
Peers v. Reed, 23 Nev. 406.)
Campbell, Metson & Brown, for Appellant:
I. Appellant's record on appeal consists of the original record, certified up from the lower
court under the provisions of section 3862 of the Compiled Laws. The question on this
motion for dismissal is whether or not appellant was required to serve a copy of record under
rule XXV, subd. 3. The purpose of section 3862 was defined by this court in the case of Peers
v. Reed, 23 Nev. 406. If this motion prevails it will defeat the purpose of said section and
strip appellant of the statutory right thereby conferred upon litigants.
II. There is no inconsistency in the rules. They prescribe the following practice as to civil
cases: Appellant may certify up the original record, under section 3862. Under this statute he
may, if he likes, enjoy the benefit of escaping the considerable expense of having copies
printed or typewritten. This benefit carries with it the concurrent disadvantage of having no
copy of the transcript for his use and guidance in the preparation of the briefs on appeal, a
disadvantage which his opponent necessarily shares with him.
III. However, rule XVII provides a method whereby the appellant may withdraw the
original record from the clerk's office for examination; an equal benefit is extended to his
opponent. It is a wise and considerate rule of practice, because it greatly lessens the expense
of litigation for the poor man. For this reason it should be allowed to remain in full force and
effect. If the poor man may invoke its operation, so may the litigant of more ample means,
provided that he and his counsel are willing to bear the disadvantage of this rule.
IV. The act of March 13, 1895, has not altered the method of presenting questions to the
supreme court. The only difference is that, instead of having to present a transcript of the
papers to be used on the appeal, the original may now be certified up. (Holmes v. Iowa M.
Co., 23 Nev. 24.) The evident object of this act was simply to save litigants the labor and
expense of transcribing the record on appeal, and the expense of printing the transcript."
the expense of printing the transcript. (Peers v. Reed, 23 Nev. 406.)
V. Respondent should make his motion to dismiss the appeal at the earliest opportunity.
Failing to do this the objection is waived. (McLean v. Shartzer, 5 Cal. 70; Williams v.
Gregory, 9 Cal. 76; Harrigan v. Lynch, 52 Pac. 642; Godschaux v. Mulford, 26 Cal. 316;
Frost v. Meitz, 52 Cal. 670.)
By the Court, Talbot, J.:
Respondent moves to strike the statement and transcript from the files and to dismiss the
appeal upon the ground that no copy of the statement or transcript was served. The record was
filed in this court on February 23, 1909, and the notice of motion was not filed or served until
the 19th day of April. After the filing of the record and previous to the noticing of the motion,
the attorneys for the respective parties without reservation stipulated on the 13th of March
that the appellant have additional time within which to prepare, print, serve, and file
appellant's opening brief on said appeal, and on April 2d the respective parties stipulated
without reservation that plaintiff and respondent have to and including the 28th day of April,
1909, within which to prepare, serve and file in the above-named court in the above-entitled
action the brief of said plaintiff and respondent on appeal.
These stipulations, recognizing the appeal and reserving no right to move to strike the
record from the files or to dismiss the appeal, are a waiver to any objection or motion to strike
or dismiss on the ground that a copy of the statement or transcript had not been served, if any
such service were necessary. (Curtis v. McCullough, 3 Nev. 213; Bliss v. Grayson, 24 Nev.
432; Smith v. Wells Estate Co., 29 Nev. 416, and cases cited.)
The motion is denied.
____________
32 Nev. 55, 55 (1909) Burns v. Loftus
[No. 1829]
E. J. BURNS, et al., Appellants, v. J. P. LOFTUS, et al.,
Respondents.
1. Appeal and ErrorReviewFindings of Fact.
The findings, being supported by any substantial evidence, cannot be disturbed on
appeal.
2. Mines and MineralsSubleasesRight to RentEstoppel.
Plaintiffs, holding a lease from G. of mining land, which had five months more to run,
without any right to an extension, gave defendants a sublease of half the land, for the
balance of the term, less a day, for an expressed consideration of $1,000 and a covenant
to pay plaintiffs a royalty on ores extracted. But in fact a condition on which defendants
took the sublease was that they should have more time, and at the time of the execution
of the sublease G. executed to defendants a lease of the land covered by the sublease, by
its terms commencing then, and expiring two months after the lease to plaintiffs, and
reciting that it was subject to said lease to plaintiffs; said lease from G. to defendants
being obtained with the knowledge and assistance of plaintiffs, and as an inducement and
consideration for the taking of the sublease by defendants. Plaintiffs afterwards obtained
an extension of their lease for two months. Held, that the extension of plaintiffs' lease
should be considered as affecting only the part of the land leased them which was not
covered by the lease to defendants, and that plaintiffs were estopped and precluded from
claiming royalty on ore extracted by defendants after the expiration of the original lease
to plaintiffs.
3. EvidenceParol EvidenceVarying Contract.
The statement of a witness that he considered the sublease and the transaction in
relation to it between the parties as a sale of plaintiffs' interest in their lease to defendants
was inadmissible, as the sublease could not be varied by parol, in the absence of an
allegation of fraud or mistake.
4. EvidenceConclusions of Witnesses.
Where witnesses are not testifying as experts, they cannot give their conclusion that a
sublease and transaction in relation to it between the parties amounted to a sale of
plaintiffs' interest in their lease, but their testimony should be limited to what was said
and done.
5. Parol EvidenceConsideration of Contract.
Testimony that a condition of defendants taking a sublease of plaintiffs, not expressed
in the sublease, was an exaction by defendants that they be given further time after the
expiration of the lease to plaintiffs was admissible to show a further consideration, which
may be shown by parol in addition to, or contradiction of, the consideration stated in the
instrument.
Appeal from the District Court of the Seventh Judicial District of the State of Nevada,
Esmeralda County; Theron Stevens, Judge.
Action by E. J. Burns and others against J. P. Loftus and others. From a judgment for
defendants, plaintiffs appeal. Affirmed.
Statement of Facts
On May 22, 1906, the Goldfield Combination Fraction Mining Company leased to
plaintiff Burns 150 feet across the northerly end of the Combination Fraction mine. By the
terms of this lease it was to expire at noon, January 1, 1907, and it specified that the
possession of the premises was to be surrendered to the lessor at that time. It contained no
provision for renewal or extension. On July 28, 1906, for an expressed consideration of
$1,000 paid, and a covenant for the payment of 10 per cent of the net smelter returns on ores
mined, the easterly one-half of this piece of mining ground was subleased by Burns and
others for the term ending at noon, December 31, 1906. At the time and date of the execution
of this sublease the Combination Fraction Mining Company executed to the defendants a
lease for the same ground covered by the sublease, by its terms purporting to commence on
that day, and expiring at noon, February 28, 1907, and reciting that it was subject to the
original lease from this company to Burns, dated May 22, 1906, and providing that no
forfeiture of this lease to the defendants should operate by reason of any forfeiture of the prior
one to Burns.
In relation to the lease to the defendants the distinguished district judge, in addition to
other findings, made the following:
The court finds from the evidence that the Goldfield Combination Fraction Mining
Company was under no obligations to renew or extend the Burns lease, and that an extension
or renewal thereof had been repeatedly denied to the plaintiffs prior to the time of the
execution of the Burns-Loftus sublease; that the Burns-Loftus sublease was taken by the
defendants, and the $1,000 paid upon the condition that the defendants could secure
additional time from the Goldfield Combination Fraction Mining Company, and that there is
nothing to show that an extension of the original Burns lease was contemplated or considered
at that time; also, that the plaintiff Burns on several occasions went to A. D. Meyers,
president of the Goldfield Combination Fraction Mining Company, and urged that
additional time be given to the defendants on the easterly portion of the ground which
was being operated by them, and seemed quite anxious that an arrangement of that kind
should be consummated.
president of the Goldfield Combination Fraction Mining Company, and urged that additional
time be given to the defendants on the easterly portion of the ground which was being
operated by them, and seemed quite anxious that an arrangement of that kind should be
consummated. The court finds that the evidence strongly preponderates in favor of the
proposition that it was the intention of all the parties to the transaction that, after the
expiration of the Burns lease, to wit, on January 1, 1907, and the additional time allowed on
account of the strike, the defendants should have their lease to their portion of the ground
entirely free and clear of any interest of the plaintiffs therein, and that it was upon that
understanding that the defendants agreed to take the sublease and pay the bonus of $1,000
and a royalty of 10 per cent upon all ores extracted by them during the term of the sublease.
It is not contended by the plaintiffs that any unfair means were used by the defendants to
secure any rights which could properly be claimed by the plaintiffs, but that all the
negotiations were openly and fairly conducted, and that all parties were advised as to what
was being done.
The evidence of all the defendants, as well as that of the president and secretary of the
Goldfield Combination Fraction Mining Company, seems to strongly indicate that such was
the understanding and agreement of all the parties, and the evidence of Burns must stand
alone against the five others who were connected with the transaction. The Combination
Fraction Mining Company on September 26, 1906, granted an extension of the lease to the
defendants of sixty days from September 28, 1907, and on September 29, 1906, the company
executed an extension of sixty days from January 1, 1907, of the original lease to Burns,
including an additional area. Owing to labor troubles, there were other extensions for the
operation of both leases, but these do not affect the legal propositions involved.
Thompson, Morehouse & Thompson, for Appellants:
I. The rule is: If the parties to a contract have reduced it to writing, they must intend such
writing to be the repository of their common intention. It merges all prior and
contemporaneous negotiations.
contemporaneous negotiations. Accordingly a contract in writing, complete on its face,
cannot be contradicted by extrinsic evidence, nor can prior or contemporaneous parol
agreements be used to contradict the written contract so as to substitute for the intention
therein expressed that expressed in such oral agreements. To violate this rule and to admit
extrinsic evidence of the intention of the parties direct for the purpose of displacing their
intention, as shown in the written contract, is to substitute the inferior for the superior degree
evidenceconjecture for factpresumption for the highest degree of legal authorityloose
recollection and uncertainty of memory for the most sure and faithful memorials which
human ingenuity can devise or the law adopt. (Page on Contracts, vol. 2, p. 1820, sec. 1189.)
II. Before a tenant who has entered into possession under a lease can deny his landlord's
title he must surrender possession. This rule is universal. We need only cite the note to Davis
v. Williams, 89 Am. St. Rep. 93, 96, for here Mr. Freeman has gathered all the authorities.
And the estoppel continues where he holds over upon the expiration of his lease. (89 Am. St.
Rep. note 2, p. 97.) Now, such being the law, as the proof is positive and undenied that the
tenants (defendants) entered into and upon the lands in the sublease made to them by
plaintiffs and took possession under that sublease, worked the property and extracted ores and
paid royalties, they cannot deny that they are the tenants of the plaintiffs. When their sublease
ended they still remained in possession, still carried on their mining operations, and as Mr.
Freeman says in Davis v. Williams, 89 Am. St. Rep. note 2, p. 97: A tenant who holds over
after the termination of his lease is as much estopped to deny his landlord's title as any other
tenant. The estoppel continues, notwithstanding the term has expired. The reason is that the
tenant must first surrender possession of the premises to his landlord before he is relieved
from the estoppel created by his tenancy. (Kiernan v. Terry, 38 Pac. 671; McKissick v. Ashby,
33 Pac. 729.)
III. The reason of the exception to the general rule is that when the landlord's title has
ceased the relation of landlord and tenant has ceased, and therefore the person who entered as
tenant is no longer a tenant.
as tenant is no longer a tenant. But so long as the relation of landlord and tenant exists the
tenant cannot dispute his tenancy. The landlord may not be the owner of the land, but have
the control and possession; in such case the tenant is estopped. What the exception to the rule
means is that when the landlord has by some means lost his right as landlord, either by loss of
title, or right to possession, so that by such loss of title or right to possession he ceases to
occupy the position and relation of landlord, then the defendant may dispute the relation of
landlord and tenant. But no such fact exists in this case. At no time did Burns and his
associates lose their title and right to possession. The original lease was extended, first by the
agreement as to strikes, fully pleaded in the answer of defendants, and then sixty days in
writing by their lessor, and during all this time the plaintiffs owned the estate absolutely and
the defendants were in possession only under the sublease and not otherwise. The defendants
are therefore not in a position to dispute their tenancy and their holding over makes them
liable to the plaintiffs.
IV. Again, while a lease may not contain any provision as to extension or renewal, yet
every tenant has an expectancy thereof, which is a valuable right and constitutes property, or,
as is said in 18 Am. & Eng. Ency. Law, 2d ed. 685: But though the tenant has no absolute
right to a renewal which is enforcible against the landlord, his possibility or expectancy of a
renewal is regarded as against third persons, as property or assets incident to the existing
lease. (Phyfe v. Wardell, 28 Am. Dec. 430; Johnston Appeal, 2 Am. St. 539; Mitchell v.
Reed, 19 Am. Rep. 252; Pom. Eq. Juris. 3d ed. sec. 1050.) And one who has knowledge of a
lease has constructive notice of all its covenants. (Pom. Eq. Juris. 3d ed. sec. 628.) And it
matters not that the landlord had in the first instance refused to grant the extension. (Mitchell
v. Reed, 61 N. Y. 123; Foster v. Reed, 78 Iowa, 205; Sties v. Kranz, 32 Minn. 313.)
Therefore, as the rule is that the tenant has this possibility, this expectancy as against third
persons, when the defendants took their sublease they took with full knowledge that while
plaintiffs could not enforce against the original lessor an extension, yet they had an
expectancy, which the plaintiffs had a perfect right to perfect at any time.
which the plaintiffs had a perfect right to perfect at any time. The obtaining, therefore, of the
extension by Burns and his associates was only the doing an act they had the right to do,
because this expectancy was valuable property.
V. Now, the relation of landlord and tenant is a quasi-fiduciary relation (15 Am. & Eng.
Ency. Law, 2d ed. p. 1199), making the above rule applicable, for while the tenant remains in
possession he cannot buy in an outstanding title and set the same up against his landlord. He
may purchase, then surrender possession, and set up outstanding title, but while he remains in
possession the relation of landlord and tenant exists, and he cannot defeat the rights of his
landlord by so doing. (Russell v. Titus, 3 Grant Cus. 295; Clem v. Wilcox, 15 Ark. 102;
Hughes v. Watt, 28 Ark. 153; Drane v. Gregory, 3 B. Mon. 619; Peyton v. Stith, 5 Pet. 485;
Henley v. Branch Bank, 16 Ala. 552; Sharpe v. Kelly, 5 Denio, 431; People v. Stiner, 45
Barb. 56; Arnold v. Woodward, 4 Colo. 249; Bergees v. Rice, 74 Cal. 590; Silvey v. Sumner,
61 Mo. 253.) These cases hold that a tenant, while he remains in possession, cannot buy an
outstanding title or interest in the leased premises, and set it up against his landlord. Why?
Because the relation is quasifiduciary, and such act would be a fraud upon his landlord and
violate his relation as tenant. Again, the general rule is, by a great weight of authority, that
while the tenant remains in possession he cannot accept a lease and admit title in another or
show that his possession is from another thus derived. (Miller v. Bonsadon, 9 Ala. 317;
Buchanan v. Larkin, 116 Ala. 431; Hughes v. Watt, 28 Ark. 153; Richardson v. Jarvey, 37
Ga. 224; Carter v. Marshall, 72 Dec. 609; Forgey v. Harvey, 151 Ind. 507; Bowdish v.
Dubuque, 38 Iowa, 341; Tullis v. Tacoma Land Co., 19 Wash. 1017; and numerous
authorities cited on page 94 of 89 Am. St. Rep.)
VI. In the lease of a mine the expectancy of extension or renewal is one of great moment.
The lessee must expend large sums in development. His time is shortin this case only six
months. It often happens that the tenant only reaches the ore body at the very close of his
lease, or he may only reach a point where he feels sure of finding the ore body. He does not
wish to lose the large sums expended in time, labor, machinery and other expenses, and to
save him this loss, and to secure some remuneration, he needs, he expects, an extension.
labor, machinery and other expenses, and to save him this loss, and to secure some
remuneration, he needs, he expects, an extension. Again, nine times in ten, the owner of the
property is only a locator, without any money or other means of developing his property. He
looks to the lessee for the development of his mine. He stands ready to grant an extension,
because the extension means riches to him and the sure establishment of the true value of his
property. We call the court's attention to the long and exhaustive note to McConst v.
Singers-Bigger, 145 Fed. 103, in 7 Am. & Eng. Annotated Cases, at page 295, where all the
authorities, English and American, are collected. It will be seen that as to third persons this
expectation is a valuable property right, and when defendants took possession as tenants they
are bound to consider and preserve that right, and when they obtained a separate lease to
themselves they contract subject to the rights of the plaintiffs. It is their duty, therefore, to do
no act which will destroy that right. That relation was a fiduciary one. (Robins v. Hape, 57
Cal. 497.)
VII. Striking out the oral testimony as to the understanding at the time of the contract, the
whole question at issue is one of law, and being one of law, the oral understanding being
eliminated, there is no conflict of testimony requiring a new trial, and we respectfully submit
the judgment should be reversed, with instructions to enter judgment for plaintiffs for the sum
of ten thousand dollars, interest and costs.
R. G. Withers, for Respondents:
I. If, instead of bringing this suit, plaintiffs had taken the position that the Burns lease
expired on January 1, 1907, plus the extension to January 27, 1907, during the strike
agreement, and had claimed that we, while subtenants, had obtained a new lease, which was
in fact a renewal of the Burns lease, and that we stood in a fiduciary relationship to them, then
we would have a proper case in which the doctrine of the tenant's right of renewal might be
applicable, but this doctrine can have no possible bearing upon the case at bar.
II. Plaintiffs contend that the extension granted to them shall, by virtue of this doctrine,
attach to the Burns lease and thereby cut out the independent lease to Loftus which had
been executed as a part of the consideration for the taking by us of the sublease and the
payment of the $1,000 and of the 10 per cent royalty and of the expenditure by us for
mining operations.
thereby cut out the independent lease to Loftus which had been executed as a part of the
consideration for the taking by us of the sublease and the payment of the $1,000 and of the 10
per cent royalty and of the expenditure by us for mining operations. The two propositions are
wholly dissimilar. It is like trying to graft an apple tree on a tomato vine. Moreover, the
Loftus lease was not executed during the term of our sublease, but, as we have seen, the
execution of the Loftus lease and of the sublease was a part of one and the same transaction.
III. Appellants make the remarkable claim that it is the law that if a landlord grants a lease
to A and afterwards grants a lease to B, and still later executes and extension of A's lease, that
such extension will cut out B's lease. If this were the law, it would be unsafe, it would be
impossible, to enter into a lease for a term to begin in future, and the merchant of foresight
and prudence, who enters into a lease for a storeroom for the coming year, would have
absolutely no protection and might find that his lease is null and void, and, perhaps, even a
fraud; because, forsooth, after its execution and before the commencement of its term, the
landlord has given an extension to a tenant then in possession, or, indeed, has actually put
some one else in possession in order that he might give an extension, and thereby violate his
contract. Such a doctrine would be monstrous. It would be impossible for any one to have any
protection from a written lease, unless he entered into possession the very minute the lease
was executed.
IV. A tenant cannot deny his landlord's title. The estoppel applies to the title at the time the
tenancy arose. (18 Am. & Eng. Ency. Law, 422; 24 Cyc. 950; Towne v. Butterfield, 97 Mass.
105; Wolf v. Johnson, 30 Miss. 513; McAusland v. Pendt, 1 Neb. 211.) The same estoppel
which applies to the sublessor's title applies equally to the title of the original landlord. (24
Cyc. 936-7, L. R. A. 930-1.) Under this rule we could not deny that at the time that our
subtenancy arose Burns had a title as lessee, expiring at noon on January 1, 1907. We were
equally bound to admit that the Combination Fraction Mining Company held the title in fee,
subject to the Burns lease up to January 1, 1907, and not subject to that lease after that
date, and that the Combination Fraction Mining Company had at all times a right to lease
this ground after January 1, 1907, to whomsoever it might see fit and to us, if it desired to
do so.
Burns lease up to January 1, 1907, and not subject to that lease after that date, and that the
Combination Fraction Mining Company had at all times a right to lease this ground after
January 1, 1907, to whomsoever it might see fit and to us, if it desired to do so. The tenant
may show that the landlord's title has expired since the tenancy began. (24 Cyc. 946, 947-8,
949, 951; 18 Am. & Eng. Ency. Law, 354, 422; Fry v. Bowman, 67 Kan. 531; Jones,
Landlord and Tenant, sec. 703; 2 Taylor, L. & T. 629, 708; Lamson v. Clark, 113 Mass. 348;
Shields v. Lozear, 34 N. J. 496; Pickett v. Ferguson, 45 Ark. 157; 55 Am. Rep. 545.)
V. Appellants urge that we could never assert an independent leasehold title to the eastern
half of the ground without first surrendering possession to them, and they allege in their
complaint that they assumed that we were holding over until May 15th, when they
surrendered possession of the western half of the ground. Generally there is a presumption
that when a tenant is found in possession after the expiration of his term that he is holding
over. This is, of course, upon the assumption that no change has occurred in the title of the
lessor, and it is always rebuttable. (24 Cyc. 1014-15, 1019; Puckett v. Scott, 18 Tex. Civ.
App. 269; 100 S. W. 969.) To begin with, this places appellants in a peculiar position. We
held possession of the east half of the ground until July 15, 1907. If our original lease, as a
matter of law, could never go into effect until we had first surrendered possession to Burns,
would it not follow that we were still sublessees, after the expiration of the Burns lease on
May 15th, and until we finally quit on July 15th?
VI. Appellants say that there was error in the trial below, because oral evidence was
admitted to alter and contradict the written terms of the sublease. We deny that any attempt
was made or any evidence was introduced, which in any manner contradicted or altered the
terms of the sublease. Counsel seems, however, to confuse the terms of the sublease itself
with other collateral and independent agreements, with the consideration upon which the
sublease was executed and delivered and with agreements which were subsequent thereto.
The testimony which is objected to is proper because it is testimony not intended to alter the
terms of the sublease, but to show the consideration upon which it was entered into and
the real consideration may always be shown, even though it does vary the terms of the
original instrument.
intended to alter the terms of the sublease, but to show the consideration upon which it was
entered into and the real consideration may always be shown, even though it does vary the
terms of the original instrument. (17 Cyc. 648, par. 9; Lake v. Bender, 18 Nev. 385.) This
testimony was also admissible for another reason: It proved other agreements which were
wholly collateral and independent. (17 Cyc. 713, 717, 720; Durkin v. Cobleigh, 17 L. R. A.
270, and note on page 274; note in 2 Am. & Eng. Ann. Cases, 146; Windsor v. Railway, 37
Wash. 156; 3 Am. & Eng. Ann. Cases, 62; Travis v. Epstein, 1 Nev. 116.) It was admissible
for still another reason: The Burns lease prohibits any subletting without the written consent
of the lessor. The Burns-Loftus lease provides that this agreement and sublease shall be of
no force or effect until consented to in writing by the Goldfield Combination Fraction Mining
Company.
VII. Finally, we respectfully submit that if there was any error in the court below, it was an
error without prejudice to the appellants. There was no fraud or concealment of any nature or
kind on the part of the respondents. Everything done by them was done in an open, fair and
businesslike way. They scrupulously paid in full every cent that was due to the plaintiffs upon
every pound of ore that was extracted up to February 1, 1907. They paid their money to Burns
for the sublease and they agreed to pay him the 10 per cent royalty, which they afterwards
paid; and this was on the condition and in consideration of the fact that they were able to
obtain, in the form of an independent lease, additional time which Mr. Burns had tried to get
and in which he had wholly failed. We submit that the judgment of the district court was right
and that any other judgment would have been unjust and unfair, and we further submit that
after Burns had entered into the agreements which he did actually make, and after he had
reaped the benefit of those agreements and had obtained the money from the defendants, by
the expenditure of which he was enabled to obtain an extension of his lease upon that part of
the ground being worked by him, that it does not come with good grace for him to bring a suit
against the defendants, claiming further large amounts of money and basing his rights upon
technical legal definitions.
basing his rights upon technical legal definitions. The law looks to the substance and not to
the letter, and in determining the rights of the parties in this case we think the court should
remember that Qui haeret in litera, haeret in cortice.
Thompson, Morehouse & Thompson, for Appellants, in reply:
I. The main point of respondents' contention, that a tenant may dispute his landlord's title,
when the landlord's title has been extinguished, after the tenancy has been created, it will be
noticed that we admitted in our opening brief, but the respondents have not in any way
brought themselves within the rule. The true rule is that stated in Ashton v. Golden Gate
Lumber Co., 58 Pac. 1, and it will be seen that respondents have not brought themselves
within any exception to the rule that a tenant cannot dispute his landlord's title while he
remains in possession. The tenant has not been evicted, he has not obtained the original
lessor's title or any title, nor has he been compelled to pay rent to a superior title, nor has any
adverse demand been made upon them, nor did the original landlord put them in possession,
nor did they hold adversely to their immediate landlord, nor were they in any way disturbed in
possession, nor have they shown that the Burns title had terminatedthey have only shown
they got a lease in form from the original lessorbut did that lease terminate the Burns title?
We have shown clearly and they have not answered it, except to say: If this were the law it
would be unsafe, it would be impossible, to enter into a lease for a term to begin in future,
etc.; that they in fact had no lease, but only an interest in a term, because when their lease in
form was made the original lessor had already carved out an estate that he could not re-grant
until the reversion re-vested in him. During that time the original landlord had nothing to
grant.
By the Court, Talbot J. (after stating the facts):
This action was brought to recover $10,000, claimed to be due as royalty or percentage on
a sublease of mining ground. The appeal is from a judgment in favor of defendants, and from
an order denying a motion for a new trial.
A number of legal principles, which are correct in the abstract, have been urged in behalf
of the appellants, which do not fit the conditions shown by the record. Their theory of the
facts of the case, which was not adopted by the district court, cannot be considered as
affecting the result of the appeal. Under the practice so often stated that the testimony will not
be reviewed when the verdict or findings are supported by any substantial evidence, we are
limited to the facts found by the lower court. This means that, instead of applying the rule
which usually makes a tenant or subtenant liable when he holds over after the expiration of
the lease under which he went into possession, we must proceed upon the theory that Burns,
while managing the lease and carrying on negotiations for himself and associates, was
anxious to have defendants take a sublease upon one-half of the ground, and work it
extensively, and that, in order to induce the defendants to take the sublease, he used his
influence with the mining company to have the defendants allowed time after the expiration
of the Burns lease, as they exacted, before they would take the sublease, which resulted in the
execution of the lease by the mining company to the defendants for a period extending two
months beyond the time allowed the defendants for working under the sublease.
Therefore the controlling question is whether under the facts foundand more particularly
that plaintiffs, while holding a lease upon a piece of mining ground, gave a sublease to the
defendants upon half of it for the time remaining on the original lease, less the last day, and
that in contemplation of extensive work and placing machinery this sublease was taken by the
defendants only on condition that they should have further time, which, by lease to them from
the original lessor, was granted for sixty days beyond the period of the original lease, and that
the lessor later extended this lease to the defendants sixty days, and still later extended the
original lease to the plaintiffs sixty days; that the defendants paid the plaintiffs the royalties or
percentages for the ores extracted during the sublease and the additional day until the
expiration of the original leasethe plaintiffs can recover the percentages upon the returns of
ore extracted by the defendants during the sixty days' extension of the original lease to the
plaintiffs, or are the defendants entitled to retain this percentage under the lease
executed to them covering the period of the extension of plaintiffs' lease?
during the sixty days' extension of the original lease to the plaintiffs, or are the defendants
entitled to retain this percentage under the lease executed to them covering the period of the
extension of plaintiffs' lease? We feel constrained to consider the case on the hypothesis that
the lease to the defendants was obtained with the knowledge and assistance of Burns, and as
an inducement and consideration for the taking of the sublease by the defendants, and that his
associates were charged with knowledge and bound by his action, and consequently that they
surrendered any claim which otherwise they might have had to the ground after the expiration
of their lease.
Bearing in mind, in connection with the other circumstances, that the sublease was subject
to the conditions of the original lease to Burns, and that the lease to the defendants specified
that it was subject to the terms of the Burns lease, which fixed and limited the plaintiffs'
tenure, as all concerned must have been aware, the rights of the parties to the east one-half of
the ground vested in the defendants from the execution of the sublease for the remainder of
the period of the Burns lease, less twenty-four hours, during which the plaintiffs would have
been entitled to the possession, if demanded; but, as the possession was not demanded, in
holding over by acquiescence for this twenty-four hours the defendants became liable for 10
per cent of the ores extracted during that time, under the same terms as provided in the
sublease. If plaintiffs had demanded and received possession for the twenty-four hours, the
defendants would have been entitled to demand and receive possession at the end of the
twenty-fourth hour; but, as there was no surrender of the possession, after the expiration of
twenty-four hours defendants became entitled to possession under their own lease, according
to the agreement of the different parties at the time the sublease and lease to the defendants
were made.
Although the Loftus lease provided it should run from the time of its execution until
approximately two months beyond the determination of the Burns lease, being made subject
to the latter, it could not take effect, so as to give the defendants any right of possession under
it, until the expiration of the Burns lease on the 1st day of January, 1907, if the latter was
not sooner forfeited, and no forfeiture is shown or claimed.
Burns lease on the 1st day of January, 1907, if the latter was not sooner forfeited, and no
forfeiture is shown or claimed. As the Loftus or defendants' lease, under the findings, was
obtained by the consent, knowledge, and assistance of Burns, and as an inducement for the
defendants to take the sublease, and this sublease executed by the parties referred to the Burns
lease, which stated that it expired on the 1st day of January, and as the defendants' lease was
both made and extended prior to the extension of the Burns lease, the extension of the Burns
lease, obtained when he was aware that the mining company had previously given the lease or
extra time to the defendants on the east half of the ground for the period covered by the
extension of the Burns lease, only applied to, or affected that part of, the ground not covered
by the Loftus lease previously executed, and the plaintiffs are estopped and precluded from
claiming any right to the percentage of ores extracted during that part of the period of the
Loftus lease which ran after the termination of the original Burns lease.
After the defendants had taken the sublease on condition that they have more time from
the Combination Fraction Mining Company, which had been refused to the plaintiffs, and the
plaintiffs knew, or were charged with knowledge of the fact, that defendants would not take
the sublease, unless they could obtain more time from the company, plaintiffs could not, by
later obtaining an extension of their lease, deprive the defendants of the benefits of their
lease, which they had obtained as one of the conditions in the transaction by which the
plaintiffs received $1,000 and 10 per cent royalties during the life of the Burns lease.
The appellants are correct in their contention and application of the rule that the written
terms of the sublease cannot be varied by parol, except in so far as the testimony related to the
consideration. The statement of witnesses that they considered the sublease, and the
transaction in relation to it between the parties, as a sale of the plaintiffs' interest in the Burns
lease was improperly admitted, for the sublease was governed by its terms, which could not
be varied by parol in the absence of any allegation that it had been executed through mistake
or fraud, and in any event the testimony should relate to what was said and done, instead
of to the conclusions of the witnesses, who were not testifying as experts; but the
admission of this evidence was harmless error.
through mistake or fraud, and in any event the testimony should relate to what was said and
done, instead of to the conclusions of the witnesses, who were not testifying as experts; but
the admission of this evidence was harmless error. All the written conditions of the sublease
appear to have been fulfilled, including the payment of the consideration expressed of $1,000
cash and 10 per cent of the net values extracted.
The testimony that a further consideration or condition was exacted by the defendants in
the requirement that additional time be given to them after the termination of the Burns lease
was admissible to show a further and full consideration, which may generally be proven by
parol, in addition to, or contradiction of, the consideration stated in the instrument. (Guidery
v. Green, 95 Cal. 630, 30 Pac. 786.) This evidence was properly admitted to show that
plaintiffs were aware, or were warned, at the time they secured the extension of their lease,
that the defendants had already obtained a lease on the east one-half of the ground for the
time covered by the extension given later of plaintiff's lease, under which extension they now
base this action. This testimony was admissible to prove an estoppel, for if the defendants had
not entered into any sublease or contract with the plaintiffs, or if the plaintiffs had held no
leasehold or other interest in the premises, or if they had owned the mine in fee, but had
assisted or induced, or with knowledge allowed without objection, the defendants to take their
lease from the Combination Fraction Mining Company, and proceed with heavy expenditures
and development work upon the ground, and the company had been without any right or title
to the claim, the plaintiffs would still be precluded from recovering.
There is stronger reason for holding that plaintiffs cannot prevail when the benefits they
accepted and obtained through the transaction would not have been acquired, and the
defendants would not have taken the sublease, nor paid the $1,000, nor royalties to the
plaintiffs, if they had not been given the additional time under the lease to them. The ordinary
rules of estoppel, applied to the facts as found by the district court, are a bar to a recovery by
the plaintiffs. (Alexander v. Winters, 23 Nev. 475, 24
23 Nev. 475, 24 Nev. 146; Bishop v. Stewart, 13 Nev. 41; Sharon v. Minnock, 6 Nev. 377;
Corser v. Paul, 41 N. H. 31, 77 Am. Dec. 753; 2 Wigmore on Evidence, 1056; 16 Cyc. 787,
and cases cited.)
The judgment is affirmed.
____________
32 Nev. 70, 70 (1909) State v. Skinner
[No. 1773]
THE STATE OF NEVADA, Respondent, v. FRED
SKINNER, Appellant.
1. HomicideDegree of ProofSelf-Defense.
Under Comp. Laws, 4687, providing that, the homicide being proved, the burden of proving
circumstances that justify or excuse it is on accused, while the burden of establishing self-defense is on
accused, he is not required to do so beyond a reasonable doubt.
2. HomicideReviewHarmless Error.
Where an instruction, before modification by the court was the most important requested by defendant,
and vital to his theory of self-defense, and the modification so changed it as to charge that such defense
must be established by defendant beyond a reasonable doubt, the error was prejudicial.
Fred Skinner was convicted of murder in the first degree. From the judgment and an order
denying a new trial, he appeals. Reversed and remanded.
Bartlett, Thatcher & Gibbons, for Appellant.
R. C. Stoddard, Attorney-General, for Respondent:
I. Competent evidence for the purpose of showing the existence of a motive for the
commission of the offense charged, is none the less so because it is also proved the
commission of another crime. (3 Rice on Evidence, 217; supported by Pierson v. People, 79
N. Y. 424; Pontius v. People, 82 N. Y. 339.) We have cited these authorities because
appellant contends that crimes were proven other than the one charged in the indictment. The
testimony as to the Manhattan affair and the introduction of the woman's letter were not for
the purpose of showing the commission of distinct crimes that were related to and
connected with the crime alleged in the indictment, but for the purpose of showing the
illicit relationship between the defendant and the deceased, and thereby showing a
motive for the crime charged in the indictment.
letter were not for the purpose of showing the commission of distinct crimes that were related
to and connected with the crime alleged in the indictment, but for the purpose of showing the
illicit relationship between the defendant and the deceased, and thereby showing a motive for
the crime charged in the indictment. We contend that for either of the above purposes said
testimony was admissible. In People v. Young, 102 Cal. 411, it is said: A number of
exceptions were taken to the rulings of the court admitting evidence which showed to some
extent the relation existing between appellant and the woman killed of man and mistress. It is
contended that this evidence was inadmissible, because the effect of it was to bring appellant
into disrepute, and affect his good standing before the jury. The evidence, however,
necessarily appeared in the disclosure of facts pertaining to the case, and we do not think that
any error was committed in that regard, or that appellant was unjustly prejudiced thereby.
II. The mere lapse of time does not affect the res gestae. (Little's Case, 25 Grat. 951;
Jordan's Case, 25 Grat. 943; 1 Greenleaf, Ev. sec. 108.) On a trial for murder it is proper to
admit evidence of the previous relations existing between deceased and accused in
explanation of their conduct and motives. (21 Cyc. 912.) Evidence to show the motive
prompting the commission of the crime is relevant and admissible, notwithstanding it also
shows the commission by the accused of another crime of a similar or dissimilar character.
(12 Cyc. 410.)
III. Appellant vigorously contends that error was committed by the court in giving as an
instruction the statutory law as to when a person may kill in self-defense. We submit that a
statutory enactment may always be used as an instruction, if applicable to the case, provided
that it does not infringe upon the constitutional or inherent rights of the defendant. There is
nothing unreasonable or unjust about the instruction of which complaint is made. It does not
say that the defendant must show that the killing was necessary or was absolutely necessary,
but it says that it must appear absolutely necessary. Absolutely fixes the degree of
necessity. In every case of real danger to the life or person of an individual there is certainly
an absolute necessity that he should kill in defense of his life or person, or at least there
would appear to be an absolute necessity.
there is certainly an absolute necessity that he should kill in defense of his life or person, or at
least there would appear to be an absolute necessity. The term necessity or necessary
should be qualified and explained in some way. Certainly the term slight necessity or
possible necessity would be a dangerous term to use. When the defendant is allowed to act
upon appearances it is but just that appearances should be such that it would appear that the
killing was absolutely necessary to protect life or person. The law should fix the kind of
necessity that should appear, and not the individual actor in each case, and we believe it has
been intelligently fixed in this state, by statutory enactment, and as to this we stand upon the
statutory law. The argument of the district attorney was based upon the facts, and as to this
there was no error.
By the Court, Sweeney, J.:
Appellant was convicted of the crime of murder in the first degree, with penalty fixed by
the jury at life imprisonment, upon an indictment charging him with the murder of one Sadie
Isabel Heskett, at Rhyolite, in the County of Nye, on the 3d day of January, 1908. From the
judgment, and from an order denying his motion for a new trial, an appeal is taken to this
court.
A number of alleged prejudicial errors are urged upon the appeal, only one of which we
deem necessary to consider. The proof showed that the defendant and the decedent were
living together in an adulterous relationship in the said town of Rhyolite, and had been so
living in other towns in this state and prior to their coming hereto. At the time of the
homicide the decedent was a proprietress of a dance hall and the defendant a gambler by
vocation. The homicide occurred about the hour of 3:30 in the morning and shortly after the
return of the defendant to the home where the parties were living together. There were no
witnesses to the homicide, other than the parties participating. During the altercation which
resulted in the death of Mrs. Heskett, three bullets were fired into the body of the deceased
and two into that of the defendant.
Upon the trial the defendant admitted firing the shots which killed the decedent, but
interposed self-defense in justification. Upon the part of the defendant some testimony was
offered of prior threats by the deceased against his life in the event he should leave her or
attempt so to do. The defendant testified that on the night of the killing he told decedent that
he was going to return to Colorado, which precipitated the altercation; that decedent, who had
possession of his revolver, shot him twice; that he then took the revolver away from her, and
she started to go to another part of the room, where defendant knew there was another
revolver; and that thereupon he shot her, believing that his life was in danger. This, in brief, is
an outline of the defendant's case. While there was some evidence offered of intoxication,
defendant's main reliance was self-defense. The testimony, upon both sides, presented a case
for the jury to determine whether or not the homicide was justifiable. It was of vital
importance to the defendant's case that the jury be correctly instructed upon the law of
self-defense.
After giving a number of instructions to the jury, upon the request of defendant, correctly
defining the law of self-defense in the abstract, the court gave the following instruction: If
you believe from the evidence, beyond a reasonable doubt, that on the 3d day of January,
1908, and at the time of the shooting of the deceased, that Sadie Isabel Heskett made an
assault, or was about to make an assault, upon the defendant, and that defendant believed, and
that a reasonable man would under like circumstances and conditions have believed, that he
was at the time in great and immediate danger of death, or of having great bodily harm
inflicted upon him, by her, and if such appearances and circumstances were sufficient to
excite the fears of a reasonable person, situate as defendant was, and if the defendant really
acted under the influence of those fears, and not in a spirit of revenge, then I charge you that
the defendant was justified in acting upon these appearances and in taking the life of
deceased, and it is your duty, therefore, to acquit him. The instruction, with the exception of
the words italicized, was the same as requested by defendant. The trial judge, however, before
giving the instruction, inserted the words "beyond a reasonable doubt."
inserted the words beyond a reasonable doubt. The effect of this modification was to
instruct the jury that the defendant must establish his defense to their satisfaction beyond a
reasonable doubt.
That this is not the law is conceded by the attorney-general, and the proposition is too
manifest to require the citation of authorities that a defendant, interposing self-defense, is not
required to establish such a high degree of proof as will convince the jury beyond a
reasonable doubt.
Section 33 of the crimes and punishments act (Comp. Laws, 4687) provides: The killing
being proved, the burden of proving circumstances of mitigation, or that justify or excuse the
homicide, will devolve on the accused, unless the proof on the part of the prosecution
sufficiently manifests that the crime committed only amounts to manslaughter, or that the
accused was justified, or excused in committing the homicide.
While the burden of establishing self-defense was upon the defendant, it has never been
held that such defense must be established beyond a reasonable doubt. The state is required to
establish the charge in the indictment to the satisfaction of the jury beyond a reasonable
doubt, as that term is defined in the statute, and if such doubt exists the defendant is entitled
to the benefit thereof. The practical effect of the instruction was to reverse the rule in this
respect.
As this instruction, before modification, was the most important of all the instructions
requested by defendant and was vital to his theory of the case, and as the modification thereof
so changed the same as to give the jury an erroneous conception of the degree of proof
required of the defendant to establish his case, we are bound to hold the same to constitute
prejudicial error.
The judgment and order of the trial court appealed from are reversed, and the cause
remanded for a new trial.
____________
32 Nev. 75, 75 (1909) Burch v. Southern Pacific Co.
[No. 1830]
ROBERT M. BURCH, Respondent, v. SOUTHERN
PACIFIC COMPANY, Appellant.
1. JuryChallengeBias.
The general abstract bias which a juror may entertain when he expresses a sympathy for plaintiff in an
injury case, because of his unfortunate condition resulting from the accident, where he believes that he can
set aside such sympathy, and render a just verdict on the evidence and instructions, is not sufficient to
disqualify him, under civil practice act, sec. 164, subd. 7 (Comp. Laws, 3259), providing that challenges
for cause may be taken on the ground of the existence of a state of mind in the juror evincing enmity
against or bias to or against either party.
2. Appeal and ErrorReviewHarmless ErrorDenial of Challenge for Cause.
Even though the court errs in denying a challenge of a juror for cause, if the complaining party has
peremptory challenges remaining, the peremptory challenging of the same juror cures the error, unless the
party was thereby forced to exhaust its peremptory challenges, and was deprived of the substantial right to
use the challenge on some other juror.
3. Appeal and ErrorReviewDamages.
There being no absolute rule of compensation in personal injury actions, the supreme court should not
interfere with a verdict giving damages, unless it clearly appears that there has been a mistake of principles
on which the damages were estimated, or some improper motive or bias indicating passion or prejudice of
the jury.
4. Appeal and ErrorReviewVerdict.
After two or more successive and concurring verdicts, the appellate court will be strongly disinclined to
interfere with the last verdict, unless it is plain that the verdict is founded on evidence not tending to prove
a material fact necessary to recovery, or is in palpable disregard of the evidence.
5. DamagesPersonal InjuriesExcessive Damages.
Plaintiff when injured was thirty-seven years old, earning from $95 to $100 per month, and was gradually
advancing in defendant's employ. He was struck by a switch stand while boarding a caboose, was thrown
upon the track, the cars running over his left leg and right foot, necessitating amputation of the left leg three
inches above the knee and three toes of his right foot. He grew weaker physically, and lost from fifteen to
eighteen pounds. An artificial leg could be worn at times, but it irritated the stump and made it sore. His
right foot pains him severely if he rests his weight on it for any length of time. Held, that $20,000 damages
was not so great as to evidence passion or prejudice.
6. Appeal and ErrorReviewHarmless ErrorArgument of Counsel.
Argument of counsel in a personal injury action against a railroad, referring to the fact that defendant had
removed the case to the federal court, and that the circuit court of appeals had remanded it to the state
court, while improper, was not reversible error, where the jurors already knew that
the case had been removed, and the court in its instruction bound the jury to return
their verdict upon the evidence and law.
state court, while improper, was not reversible error, where the jurors already knew that the case had been
removed, and the court in its instruction bound the jury to return their verdict upon the evidence and law.
7. Master and ServantInjury to ServantActionsQuestion for JuryAuthority of Servant.
In an action by a servant against a railroad company for injuries from being struck by a switch stand
while boarding a car, whether a yardmaster and trainmaster had authority to promise plaintiff to repair the
switch stand so as to bind defendant, whether plaintiff notified them, and, if so, whether they promised to
repair, held, under the evidence, for the jury.
8. Master and ServantDefectsPromise to RepairDelegation of Master's Duty.
Where a servant is hired by those with authority to employ men for the master, and consequently with
power to promise, on behalf of the master, to repair defective machinery, and they are notified of a defect
by him and promise to repair, but neglect it, and the servant relying thereon continues at work and is
injured, the master is liable.
9. TrialInstructionsIssues Covered by Charges Given.
Where charges given fully cover the law in accordance with the issues raised by the pleadings and
evidence, the refusal of another charge is not error.
10. Master and ServantRules for Government of ServantsNon-observance.
Where a railroad company enacted a rule regarding the boarding of moving cars, which rule was
universally disregarded by servants to the knowledge of the company, and not enforced by the railroad
company, the company could not avoid liability for injuries to a servant while mounting a moving car
because of his disregard of the rule.
11. TrialInstructionsModification.
A court may refuse to give a partially erroneous instruction, and may so modify it as to conform to the
pleadings; and, where in an injury action against a railroad company the complaint alleged that plaintiff
was injured by striking a switch stand, and the answer denied it, a charge that if plaintiff attempted to board
defendant's caboose, missed his handhold thereon or footing upon the step, and by reason thereof fell or
was dragged along the track, and thereafter fell or struck the switch stand, defendant should recover, was
properly modified to state that, if plaintiff attempted to board defendant's car and missed his handhold
thereon or his footing upon the step and by reason thereof fell or was dragged along the track, and
thereafter fell, and the fall resulted in his injury, defendant should recover.
12. TrialInstructionsRequests Covered by Charges Given.
Requests covered by charges given are properly refused.
13. Appeal and ErrorReviewVerdict on Conflicting Evidence.
A verdict on conflicting evidence should not be disturbed, unless there is a clear preponderance of
evidence against it, or the court can say that the jury was swayed by improper motives from rendering a just
verdict.
14. Appeal and ErrorReviewRefusal of Nonsuit.
In considering the granting or refusing of a motion for nonsuit, the appellate court must take as proved
every fact which plaintiff's evidence tends to prove and which is essential to his recovery, and every
inference of fact that can be legitimately drawn therefrom, and give plaintiff the benefit of all legal
presumptions arising from the evidence.
15. NegligenceTaking Case from JuryContributory Negligence.
An injury case should not be withdrawn from the jury when reasonable men might fairly differ on
questions of fact whether plaintiff was guilty of contributory negligence, and the conclusion that follows as
matter of law, unless the testimony is so conclusive as to compel the court to set aside a contrary verdict.
Appeal from the District Court of the Second Judicial District of the State of Nevada,
Humboldt County; W. H. A. Pike, Judge.
Action by Robert M. Burch against the Southern Pacific Company. Judgment for plaintiff,
and defendant appeals. Affirmed. Petition for rehearing. Denied.
Guy v. Shoup and E. M. Bagley, for Appellant:
I. The court erred in denying the challenge of defendant of Juror Nofsinger, upon the
ground that the examination disclosed a frame of mind, wherein the juror said that the
crippled condition of the plaintiff created in his mind a feeling that would cause him to lean
towards the plaintiff and against the defendant; and defendant hereby refers to the testimony
of said juror as written out by the shorthand reporter, and, in support of such assignment of
error, defendant relies upon the grounds stated in the objection and exception noted to the
ruling of the court.
Juror Nofsinger's answers on his voir dire indicated a disqualifying state of
mindentertaining a feeling that plaintiff's misfortune (loss of a leg) would operate on his
sympathies, influence his judgment and cause him to lean towards the plaintiff. The legal
conception this layman was struggling to express, as indicated by his answers, showed that he
was an incompetent juror, and it was prejudicial error to deny defendant's challenge. His
answers indicated he would have been biased in favor of plaintiff and would not have been a
fair juror for defendant.
juror for defendant. The mere fact that the juror, after indicating a frame of mind evidencing
bias, says, as Nofsinger did in his answer to the last question of the court, that he could try the
case fairly, is not conclusive. To repeat the words of Hawkins, it is vain for a man to say, or
even believe, that he can judge impartially of a matter which he has already determined. In
Ry. Co. v. Chance, 45 Pac. 60, a juror stated that as between a railroad company and an
individual he would perhaps lean to the individual. The Supreme Court of Kansas said, at
page 62: The court erred in overruling defendant's challenge for cause of William Dye as a
juror. He seems to have been fair and straightforward in answering the questions of court and
counsel, and he might have been entirely fair in the consideration of the case; but as he felt
that it would require a continual effort on his part to deal with the railroad company in the
same way that he would an individual, and that, perhaps, he could not consider the case in an
impartial way, it was the duty of the court to excuse him. * * * The defendant having
exhausted all its peremptory challenges, the error will be considered material, although the
juror was afterwards discharged on peremptory challenge.
In Quill v. S. P. Co., 140 Cal. 268, the Supreme Court of California reversed a judgment in
favor of the railroad company where the court declined to excuse and plaintiff was compelled
to exercise a peremptory challenge to get rid of a juror (Farquharson) who stated on his voir
dire that he felt a prejudice against suits to recover damages, believing that many such were
brought without merit; * * * it might be that my state of mind might influence my
decision. * * * I admit that I might be affected unconsciously.
Speaking of a juror's assurance that, notwithstanding his feelings or notions, he could still
try the case fairly, the court said: Even in many of these cases, notwithstanding the positive
declaration of the juror, * * * this court has felt compelled to reverse the ruling of the trial
judge, because, upon a consideration of the whole testimony, it has seemed manifest that the
juror could not do that which he so positively declared his ability to do; for, as was said in
People v. Gehr, 8 Cal. 359, Few men will admit that they have no sufficient regard for truth
and justice to act impartially in any matter, however much they may feel in regard to it,
and every day's experience teaches us that no reliance is to be placed in such
declarations.'"
truth and justice to act impartially in any matter, however much they may feel in regard to it,
and every day's experience teaches us that no reliance is to be placed in such declarations.'
Even where by his formal answers a juror brings himself within the letter of the statutory
qualifications, if the court should discover the least symptom of unfairness or prejudice, he
should be rejected. (Omaha R. Co. v. Cook, 37 Neb. 435.)
The character of this action, the extent of plaintiff's injury, necessitated that greatest care
be exercised by defendant's counsel and the court to secure a fair and impartial jury. The
record shows defendant exhausted all its peremptory challenges, including the one on
Nofsinger; but we think the result shows it had need to exercise more.
We earnestly invite the court's attention to the recent case of Fitts v. Southern Pacific Co.,
86 Pac. 710, which upholds our contention that the error here discussed was prejudicial.
II. The damages awarded by the jury were excessive and were given under the influence of
passion and prejudice. The only means of discovering passion and prejudice is by comparing
the amount of the verdict with the evidence before the trial court. (Doolin v. Omnibus Cable
Co., 125 Cal. 141.) Where the amount of damages is in the discretion of the jury, it must be a
reasonable and not an unlimited discretion, and must be exercised intelligently and in
harmony with the testimony before them. (Sloane v. R. R. Co., 111 Cal. 768.)
The jury gave Burch $20,000, and if we compound the interest on this $20,000 judgment,
for twenty-nine years, according to the bankers' table of one dollar per annum, at compound
interest, we find that he has been awarded the equivalent of the princely sum of $141,231.34,
certainly a great deal more than any switchman, or, in fact, almost any man, is ever endowed
with after having lived two-thirds of his expectancy.
At legal interest the $20,000 judgment awarded Burch would allow him $116.66 a month,
or $1,400 a year, more than the total of his previous yearly earnings. For the period of his
expectancy the accruing interest on that sum would amount to $40,600. This, in addition to
the $20,000 judgment, or principal sum, which he would always have on hand, making his
money recovery on account of this accident $60,000.
ment, or principal sum, which he would always have on hand, making his money recovery on
account of this accident $60,000.
Plaintiff, according to his testimony, is forty-one years of age. At the time of the injury he
was earning as switchman $95 to $100 a month, between $1,100 and $1,200 a year. At the
time of the trial he was running a star mail route under contract for $600 a year, and farming
ground netting him $150 a year, making his net income now approximately $750 per annum;
that is, between four and five hundred dollars less in income a year by reason of his injury.
Assuming that he would live to the scriptural limit of three score and ten, he would lose
that difference for twenty-nine years, a total loss, figuring it at $500 per annum, of $14,500.
However, that is not the correct rule of ascertaining his money loss. Judgment was reversed in
St. L. & S. F. Ry. Co. v. Farr, 56 Fed. 994, in a personal injury case, where plaintiff's attorney
in his argument said that the jury should multiply plaintiff's yearly loss of earnings by his
expectancy, the court saying that that did not correctly state the rule and was unfair and
misleading.
To pay that sum now would be requiring defendant to pay now the total of what he would
admittedly only get in yearly installments, extending over a period of twenty-nine years. That
is not the true measure. The correct rule is, as was said in Burns v. Penn. R. Co., 68 Atl. 705:
Having thus ascertained the total sum, its payment must be anticipated and capitalized, and
the present worth obtained. (See 40 South. 290, for table.)
Burch lost his left leg a couple of inches above the knee and three toes off the right foot.
He uses an artificial limb and is able in this way to walk and to work. There is no serious
impairment of his general health or general physical capacity. As the court saw him he was in
good physical condition. It is a matter of impaired locomotion upon his artificial leg as
compared with his former capacity for movement.
In Brown v. S. P. Co., 7 Utah, 288, plaintiff, a brakeman, had one of his hands cut off and
also other bodily injuries. The jury returned a verdict of $12,000. On motion for new trial the
court reduced the judgment to $10,000. On appeal the supreme court said, at page 293:
"We think the damages awarded by the jury grossly excessive, and, even as reduced by
the court, the amount of plaintiff's recovery is greatly in excess of what he is justly
entitled to.
the supreme court said, at page 293: We think the damages awarded by the jury grossly
excessive, and, even as reduced by the court, the amount of plaintiff's recovery is greatly in
excess of what he is justly entitled to. The plaintiff testified that he was confined to the house
about two and a half or three weeks, most of the time in bed, on account of his injuries, and
that it was about a month before he could go out on the street, and that, after getting out on
the street, cold bothered his arm some; that he suffered pain longer with his left leg than with
his arm; that it was about three weeks before his leg healed up. He further testified that he had
been employed as a brakeman about two and a half months; that before he began work as a
brakeman he worked at home for his father on a farm; that he was in good health before he
was injured, and earned his living by physical labor, and was not educated for any profession.
He also testified that since he recovered from his injuries his health had been good, and that
he now is a strong, healthy man; that he works for his father on the farm, but that about all he
does is to do chores and work in the garden. He also testified that at the time he received the
injuries complained of he was receiving from the railroad $70 per month, and something
additional for extra time, making his wages at that time amount to $75 or $80 per month. A
railway company is entitled to have its rights and liabilities determined by the same rules of
law and justice that apply in suits between individuals. For an injury similar to the one
complained of in this case, if inflicted by an individual, no jury would find such a verdict as
was returned in this case. It is not claimed that the injury was wanton or wilful, and there was
therefore no room for vindictive damages. The injury to the plaintiff was merely an accident,
resulting, it is true, as found by the jury, from the carelessness of the defendant company, but
still an accident, in the sense that it was not intentional. While the injury to plaintiff is severe,
it only partially disables him, and there are many occupations in which he will be able to earn
nearly, if not quite, as much as he usually earned before the accident. By the verdict, as
rendered, the plaintiff was given a nice little fortune, more than the majority of men earn in a
lifetime, and vastly more than the majority of men accumulate by a life of toil and
privation.
than the majority of men accumulate by a life of toil and privation. The annual income he
would derive from the amount of the verdict, at the ordinary rate of interest, would be about
one-fourth more than he was getting when he was injured, and the interest on the judgment,
as finally modified, would exceed the highest wages he testified to ever having earned before
the accident. There can be no reasonable doubt that the heavy damages awarded by the jury in
this case were given under the influence of passion and prejudice, and, if passion or prejudice
swayed the minds of the jury in awarding damages, the same or other improper influences
may have operated upon their minds in determining the questions of fact necessary to fix the
liability of the defendant. Doubtless the twelve men who composed the jury were,
individually, honest men, but we are forced to the conclusion that they did not properly
appreciate their duties and responsibilities as jurors in this case. The popular prejudice against
railway corporations may not be wholly undeserved, but it should not be permitted to find
expression in unjust verdicts. When the prejudice against these corporations becomes so
strong as to taint the administration of justice, it becomes the duty of the courts to interfere.
However reluctant to disturb the verdict of a jury for such a cause, we think the verdict in this
case so excessive that it ought not to stand. While we consider it our duty to hold railway
companies to a strict accountability for damages caused by their negligent or wrongful acts,
yet we also feel it our duty to not permit a glaring injustice to be done them to satiate the
demands of popular prejudice. The judgment must be reversed, and the cause remanded.
In Needles v. C. & N. W. Ry. Co., 74 Wis. 239, a young boy sustained injuries
necessitating amputation of both legs. The jury gave him a verdict of $30,000. The supreme
court said: The motion to set aside the verdict and grant a new trial was based in part upon
the ground that the damages awarded were excessive. Of course there is a sense in which the
damages awarded cannot be regarded as excessive. In this sense the learned counsel for the
plaintiff is undoubtedly right in saying that, though this supreme court room were filled with
gold there is no rational human being in the State of Wisconsin who would change places
with this boy, maimed as he has been by the negligence of the defendant, and accept the
gold as compensation.' Yet no one would for a moment contend that such is the legal
measure of damages, even in a case like this.
sin who would change places with this boy, maimed as he has been by the negligence of the
defendant, and accept the gold as compensation.' Yet no one would for a moment contend
that such is the legal measure of damages, even in a case like this. Courts and juries must deal
with such questions in a deliberate and practical sense. Without going into any discussion of
the subject, we are constrained to believe that from some misconception of duty, misdirection
of the court, passion or prejudice, the jury awarded damages considerably in excess of what
the plaintiff was entitled to recover in any event. It follows that the motion to set aside the
verdict and grant a new trial should have been granted upon this ground.
The following are also a few of the many cases that could be cited in which damages were
held to be excessive by the appellate court:
Kennon v. Gilnor, 5 Mont. 257 (loss of foot, $20,500).
Pfeffer v. Buffalo Ry. Co., 4 N. Y. Misc. Rep. 465 (loss of foot, $20,000).
Barley v. Rome Ry. Co., 80 Hun. 4 (loss of leg, $16,000).
Tully v. N. Y. Steamship Co., 10 N. Y. App. Div. 463 ($25,000 for loss of leg).
Peri v. N. Y. Central Ry. Co., 87 Hun, 499 ($10,000 for loss of foot).
Melse v. Alaska Commercial Co., (Wash.), 84 Pac. 1127 ($20,000 for loss of leg and other
injuries).
Reynolds v. St. Louis Trans. Co., (Mo.), 88 S. W. 50 ($23,400 for injury resulting in
diabetes and paralysis of both legs).
Rucker v. Central Ry. Co., (N. J. L.), 61 Atl. 89 ($20,000 to locomotive fireman aged 38
earning $85 per month, for loss of leg and other injuries, reduced to $10,000).
Newcombs v. N. Y. Central (Mo.), 81 S. W. 1069 ($20,000, reduced to $10,000, where
man 62 years old had leg amputated).
Chicago Ry. Co. v. Jackson (Ill.), 8 Am. Rep. 661 ($18,000 damages for loss of both legs
by brakeman held excessive).
Where it clearly appears, as it does here, that the jury were influenced by passion or
prejudice, the wrong done is not redressed by a partial remission of the verdict, and the
moving party is entitled to have the entire verdict set aside and a new trial granted. (Southern
Pacific Co. v. Tomlinson, 163 U. S.
369; Adcock v. Ry. Co., 77 Pac. 78; Underberger v. Sharff, 51 Mo. App. 102, 109.)
Defendant respectfully submits that this verdict is so excessive and is so much more than
would have been given by the same jury in an action between private individuals, and
discloses that undoubtedly the same prejudice, passion, bias, sympathy for plaintiff, or
whatever you may choose to call it, that prompted this verdict, so impregnated the case and
clouded the judgment of the jurors on the issues in dispute, that it would be wrong to
foreclose the defendant by their findings on the question of fact. As was said in Olson v.
Northern Pacific Railway Company, 81 Pac. 152: We might follow our usual practice and
reduce the judgment to such sum as the respondent is entitled to recover in our view of the
facts, and require him to accept that amount or submit to a new trial; but the right of recovery
is doubtful at best, and the verdict discloses such passion and prejudice on the part of the jury
that it would be unjust to hold a litigant foreclosed by any of the findings. The judgment is
therefore reversed, and the cause remanded for a new trial.
III. The court erred in permitting plaintiff's counsel to refer, in his argument before the
jury, to the fact that defendant had secured a removal of the case to the United States Circuit
Court.
In Tucker v. Henniker, 41 N. H. 325, Fowler, J., delivering the opinion of the court, said:
When counsel are permitted to state facts in argument, and to comment upon them, the
usage of courts regulating trials is departed from, the laws of evidence are violated, and the
full benefit of trial by jury is denied. It may be said, in answer to these views, that the
statements of counsel are not evidence; that the court is bound so to instruct the jury, and that
they are sworn to render their verdict only according to evidence. All this is true, yet the
necessary effect is to bring the statements of counsel to bear upon the verdict with more or
less force, according to circumstances; and if they, in the slightest degree, influence the
finding, the law is violated, and the purity and impartiality of the trial tarnished and
weakened. If not evidence, then manifestly the jury have nothing to do with them, and the
advocate has no right to make them.
cate has no right to make them. It is unreasonable to believe the jury will entirely disregard
them; they may think they have done so, and still be led involuntarily to shape their verdict
under their influence. That influence will be greater or less, according to the character of the
counsel, his skill and adroitness in argument, and the force and naturalness with which he is
able to connect the facts he states with the evidence and circumstances of the case. To an
extent not definable, yet to a dangerous extent, they unavoidably operate as evidence which
must more or less influence the minds of the jury, not given under oath, without
cross-examination, and irrespective of all those precautionary rules by which competency and
pertinency are tested.
(a) Comment by Mr. MacMillan, in his address to the jury, on the fact that the defendant
had removed the case to the federal courtWhy did he remove it from here to the federal
court of the United States, where the jurors of this town, in which the witnesses lived, would
not be called upon to pass upon their credibility?was error.
1st. In Perkins v. Burley, 64 N. H. 524, counsel for the prevailing party, in his closing
argument, said to the jury, that if they knew how the plaintiff and his father and brother (who
were witnesses for him) were regarded in the vicinity in which they lived, he would be
willing to submit the case without argument. This was held to be sufficient ground for setting
aside the verdict.
2d. Fact that change of venue had been had must not be commented upon by counsel in
argument to the jury. And if such comment be made, and not checked by the court, or if it be
persisted in after being reproved by the court, it will be sufficient ground for reversing the
judgment. (Paulman v. Clay Comb, 75 Ind. 64; Campbell v. Maher, 105 Ind. 383; Worley v.
Moore, 97 Ind. 15; Devries v. Phillips, 63 N. C. 53; State v. Smith, 75 N. C. 306.)
In the case last cited, the prosecuting attorney said: The defendant was such a scoundrel
that he was compelled to move his trial from Jones County to a county where he was not
known. This was held to be highly improper.
In State v. Phillips, 24 Mo. 483, a new trial was granted because the state's attorney
read the proceeding on an application for change of venue, which was granted.
because the state's attorney read the proceeding on an application for change of venue, which
was granted.
3d. The defendant company conceived that it had a right to remove the case to the federal
court, and Judge Hawley agreed, as will be seen by reference to his opinion in 139 Fed. 350,
and its excuse of that right could not be commented on to its disadvantage and prejudice.
And the United States Supreme Court has, since the ruling on the Burch case (152 Fed.
168), held that the defendant could have rightfully continued on in the federal court had not
plaintiff made a motion to remand. (Western L. & S. Co. v. Butte & B. C. M. Co., June 1,
1908.)
Corson, J., in Lindsay v. Pettigrew, 52 N. W. 873-4, said: While great freedom should be
allowed to attorneys in the argument of their cases before a jury, such arguments should be
confined to the facts admitted in evidence, criticism and discussion of the same, and of the
proper and legitimate inferences to be drawn therefrom. If counsel can be permitted to make
assertions of facts not supported by the evidence, there is great danger that the jury will lose
sight of the issues in the case, and be improperly influenced by such statements, to the
prejudice of the adverse party. Within the limits of the testimony, the right of argument,
criticism, and comment is free; but when counsel makes assertions calculated to prejudice the
minds of the jury, not warranted by the testimony before them, he goes beyond the freedom of
discussion the law and the courts allow him. The only matters proper to be considered by the
jury are the issues raised by the pleadings and the evidence admitted by the court. The length
of time a cause has been pending in the court, the proceedings had to obtain a change of
venue, or had under such change or otherwise, and the fact of other litigation between the
parties and the result of the same, are not matters with which the jury have any concern. To
bring such matters, therefore, to the attention of the jury for the purpose of creating in their
minds a prejudice against a party and influencing their verdict, is to transcend the freedom
allowed counsel in the proper presentation of their cause to the jury. * * * Such statements
were well calculated to prejudice the jury against the defendant, and influence their verdict.
ant, and influence their verdict. * * * The learned counsel for the plaintiff, evidently in his
zeal for his client, in these various statements overlooked those great principles of
professional ethics that should govern and control counsel in the argument of their causes
before a jury. Counsel, as officers of the court, should never, in their zeal for their clients, so
far forget the duty they owe to the court as to improperly attempt to prejudice or influence the
jury in the discharge of their duties by bringing before them in argument matters not in
evidence in the case; and it is the duty of trial courts to see that no such improper statements
are permitted to be made to the jury.
(b) The court could not by instructions, admonition or rebuke entirely destroy the sinister
influence of counsel's remarks. Accordingly, it is held that, since it is the duty of the court,
upon its own motion, to keep arguments to the jury within legitimate limits, it is the duty of
the trial judge, if he believes any improper elements have been worked into the case by
improper and prejudicial appeals to the jury, to award a new trial if for such prejudicial matter
one be askedand this too even though no objection was made to such matter during the
trial. (North Chicago St. Ry. Co. v. Leonard, 67 Ill. App. 603; Brown v. Swineford, 44 Wis.
292.)
It is well settled that the presiding judge should, either by his own motion, or upon request
of counsel, check counsel in an improper line of argument. (Berry v. State, 10 Ga. 511;
Forsyth v. Cothran, 61 Ga. 278; Willis v. McNeil, 57 Tex. 474; Gulf Ry. Co. v. Butcher, 83
Tex. 309; Brown v. Swineford, 28 A. Rep. 587; Earll v. People, 99 Ill. 123; Little Rock Ry.
Co. v. Cavenesse, 48 Ark. 106; Hoxie v. Home Inv. Co., 33 Conn. 471; Killins v. State, 28
Fla. 313; Rushfield v. Waldron, 83 Mich. 116; Goodman v. Evans, 134 Ind. 46; Mehagun v.
McManus, 35 Neb. 633.)
The excuse given by plaintiff's counsel that his argument was in reply to Mr. Shoup, who
had said that defendant was not afraid to submit its case to jurors of this town in which the
witnesses lived, was not a valid justification for counsel's argument. Even an improper
argument by counsel on one side will not justify an improper argument in reply. Such a rule
would turn a court into a town meeting.
rule would turn a court into a town meeting. (Bennett v. State, 22 Am. St. Rep. 468.) But
plaintiff's counsel knew, as does every lawyer, that the reason why it would be to defendant's
advantage to remove the case to the federal court was because, in the latter court, the
concurrence of twelve jurors would be essential to a verdict, while in a state court the
concurrence of nine jurors would be all that would be necessary. The residence of the
witnesses did not have, and could not have, any relevancy upon the question of removal, so
that the justification offered was no better founded in fact than the right of counsel to
comment on the removal was founded in law; but the refusal of the court to prevent such
improper argument, and the fact that the prejudicial statements thus made were in plaintiff's
closing argument, to which defendant had no reply, necessarily left in the minds of the jury
the impression sought to be created by plaintiff's counsel that the right of removal was
exercised by defendant for the sole purpose of trying the case in a court where its witnesses
would not be known to the jury.
V. The court erred in permitting evidence to be introduced showing that the yardmaster
had authority to hire and discharge employees.
In an effort to show that the yardmaster had authority to bind the defendant by his promise
to repair the alleged defective switch stand, plaintiff introduced in evidence, over the
objection of the defendant, testimony tending to show that the yardmaster had authority to
employ and discharge employees.
Q. Do you know of your own knowledge whether or not the yardmaster hired and
discharged employees?
Mr. ShoupWe object to the question, your honor, upon the ground that the hiring and
discharging of men does not under any circumstances tend to show the vice-principalship of
the yardmaster; and upon the further ground that no proper foundation for such evidence has
been laid, in that the rules of the company are the best evidence of the vice-principalship of
the yardmaster.
The CourtIt tends to show the scope of the authority of the yardmaster. I think it is
admissible to show the scope of his authority for that purpose.
Mr. ShoupNote our exception upon the ground that the mere hiring and discharging of
servants does not make a servant a vice-principal, except as respecting the discharging and
hiring of and selecting competent and careful servants.
And in support of such assignment of error, defendant specified the grounds of objection
and exception as set forth in the foregoing statement on motion for new trial, reference being
hereby further made to the said transcript of the testimony.
The general rule is that the mere power to hire and discharge employees does not make a
servant a vice-principal. (Stevens v. S. F. Ry. Co., 100 Cal. 554; Lincoln Co. N. Co. v.
McNally, 15 Ill. App. 181; Hamilton v. Iron Mountain Co., 4 Mo. App. 565; Union Pacific
Ry. Co. v. Doyle, 50 Neb. 555; Gilnor v. Oxford Iron Co., 55 N. J. L. 39; Vogle v. American
Bridge Co., 180 N. Y. 373; Webb v. Richmond Ry. Co., 97 N. C. 387; Casey v. Penn. Paving
Co., 198 Pa. St. 348; Hanna v. Granger, 18 R. I. 507; Alaska Treadwell N. Co. v. Wheelan,
168 U. S. 86.)
It is of course conceded that where the alleged breach of duty was the employment or
retention of unfit servants, the evidential significance of a power to hire and discharge
subordinates is considered from a standpoint quite different from that which is appropriate
where the general agency of a delinquent employee is in question (Labatt, Master and
Servant, vol. 2, p. 1436), but, as already stated, there is no issue in this case as to the
employment or retention of unfit servants.
It is apparent from the uncontradicted testimony in this case that the yardmaster was
simply a mere foreman to oversee a batch of hands, direct their work under the supervision
of the master, see that they perform their duty, and, in case of dereliction, report them. This
does not, however, constitute a vice-principal who must have general power and control over
the business and not mere authority over a certain class of work or a certain gang of men.
(Labatt, sec. 519.)
VI. The court erred in refusing to give defendant's Instruction No. 4 to the effect that if the
jury believed from the evidence that plaintiff attempted to board the caboose contrary to the
rules of the company, and plaintiff knew of that rule, the jury should find for the defendant.
The court erred in refusing to give defendant's request for Instruction No. 4, for the reason
that said instruction correctly states the law, and the defendant excepts to the modification of
said instruction as stated in the court's instruction substituted for defendant's Instruction No.
4, in that said instruction authorizes the jury to find that the said rule in question was not
generally observed by the switchmen and employees of the defendant corporation, whereas
the rule of law is that where an act is dangerous in its character, it cannot be justified by the
fact that the act itself was generally practiced by employees, or that the rule was customarily
violated. The defendant further excepts to the said modification of said instruction upon the
ground that it requires the defendant to establish not only the existence of the rule itself to the
knowledge of the plaintiff, but also that said rule was not only generally observed, but was
generally enforced by the officers in authority for said corporation. The said defendant further
excepts to the instruction substituted for defendant's Instruction No. 4 in that it eliminates
from the jury's consideration the question of whether or not the defendant had knowledge that
said rule was not generally obeyed by its employees. The defendant further excepts to the said
instruction as substituted for defendant's Instruction No. 4 in that it takes from the
consideration of the jury the fact that plaintiff knew of the existence of said rule referred to in
said instruction. The defendant further excepts to said substituted instruction upon the
ground, first, that it reverses the order of proof with reference to the enforcement or
knowledge of said rule, and, second, that it does not correctly state the law with reference
thereto.
The following is defendant's Instruction No. 4 as requested by defendant: If you believe
that the plaintiff attempted to jump onto the forward end of the caboose coming towards him
while going at a rapid speed, and that the same was forbidden by the rules of the company,
and that plaintiff knew of that rule, then you must find for the defendant.
The following is the instruction substituted by the court for defendant's Instruction No. 4
and given to the jury: If you believe that the defendant attempted to jump on the forward
steps of the caboose coming towards him, while going at a speed of about eight miles an
hour, and that such act was forbidden by the rules of the company, because of its being
too high a rate of speed to allow a switchman to board an approaching caboose, and that
plaintiff knew, or working in the capacity of a switchman it was his duty to know, of that
rule, and you also believe from a preponderance of the evidence that the said rule was
generally observed by the switchmen employees of the defendant corporation, and was
generally enforced by the officers in authority for said corporation, then you should find
for the defendant.
believe that the defendant attempted to jump on the forward steps of the caboose coming
towards him, while going at a speed of about eight miles an hour, and that such act was
forbidden by the rules of the company, because of its being too high a rate of speed to allow a
switchman to board an approaching caboose, and that plaintiff knew, or working in the
capacity of a switchman it was his duty to know, of that rule, and you also believe from a
preponderance of the evidence that the said rule was generally observed by the switchmen
employees of the defendant corporation, and was generally enforced by the officers in
authority for said corporation, then you should find for the defendant.
Given. (Sgd.) W. H. A. Pike, Judge.
Although it does not appear that a servant has seen a rule, if it is accessible to him, and it is
his duty to examine it, he must be charged with knowledge of its existence. (O'Malley v. New
York R. Co., 67 Hun, 133, 22 N. Y. 48. See, also, Dobson v. United Collieries, 8 F. 241;
Alabama G. S. R. Co. v. Carroll, 84 Fed. 772; 52 U. S. App. 442; 28 C. C. A. 207.)
Knowledge of rules by a servant may, it seems, be presumed under certain states of facts
and circumstances from the length of service of the person to be charged. (Francis v. Kansas
City R. Co., 110 Mo. 397; 19 S. W. 935.) Thus, where one has been in the employ of a
railroad company as a section hand for many months, the presumption is that he is acquainted
with a rule for the regulation of his conduct. (Shenandoah Valley R. Co. v. Lucaso, 86 Va.
390, 10 S. E. 422.) And where a person has been employed as a car inspector for several years
he is chargeable, it seems, with knowledge of rules respecting the repair of cars. (Canadian
Pac. R. Co. v. Elliott, 137 Fed. 904, 70 C. C. A. 242.)
If a servant relies upon the abrogation of a rule by its habitual disregard it devolves upon
him to establish that fact. (Galveston R. Co. v. Gormley, 91 Tex. 393, 43 S. W. 877; Illinois
Cent. R. Co. v. Zerwick, 88 Ill. App. 651.)
The question whether the rules of a master have been nullified by their habitual disregard
is a question for the jury. (Tullis v. Lake Erie R. Co., 105 Fed. 554; McNee v. Coburn Trolley
Track Co.,
Trolley Track Co., 170 Mass. 285, 49 N. E. 437; Denver R. Co. v. Smock, 23 Colo. 456, 48
Pac. 681; Mohr v. Lehigh Valley R. Co., 55 N. Y. App. Div. 176, 66 N. Y. Supp. 899.)
Nowhere in the charge of the court was the jury told that if Burch hit the switch stand after
he had fallen from the steps by reason of missing his handhold or foot, the company would
not be liable. The court struck out of our requested instruction all reference to the switch
stand and left the jury to infer, and they probably did so decide, that just so long as he hit the
switch stand, even after falling, that made out his case.
Counsel for plaintiff endeavored to argue that the general charge of the court covered this
issue so that the jury could not have been misled, but they could not point out any instruction
wherein the attention of the jury had been called to this controlling point in the case, and the
court will see, by reviewing the instructions, that the jury were not given any clear
understanding of this company's defense. A general instruction of the court may give a correct
abstract proposition of law, but here we respectfully submit that we were entitled to have our
instruction go to the jury as a guide as to what the law was conforming to the facts in
evidence and defense urged by us. It is the duty of the court, when requested, to lay down the
law to the jury touching every hypothesis of fact presented by the evidence. The first duty is
to make the jury comprehend what is the question or fact in dispute between the parties. The
jury go wrong oftener from not understanding the true issue than from any wish to wrong or
do wrong in finding a verdict. And courts often fail in conveying to the minds of a jury the
exact facts in dispute, or the issue between the parties, through the fear of exceeding the
proper limits of a trial judge. In doing this the judge need express no opinion as to what the
truth is on the evidence; he can still leave this to the unbiased action of the minds of a jury.
But the court should never omit to charge on that first right of a partythat of making the
jury see the exact and naked point in dispute, and in leaving that dispute to be settled by the
yea or nay of the jury. Unless a charge succeeds in doing this, it has done very little, if any,
good.
VIII. The evidence is insufficient to justify the verdict, and the verdict is against law.
and the verdict is against law. The defendant moved the court for a new trial in this case upon
the grounds: First, insufficiency of evidence to justify the verdict; second, the verdict is
against law. The Statutes of 1907, p. 360. provide that: In such case, where it appears that
the evidence taken all together does not support the verdict, or decision, or judgment, or
decree of the court, a new trial shall be granted, or, upon appeal, the case shall be reversed
without regard to whether there are express findings upon all the issues, or whether the
specifications particularly point out the finding or findings, either express or implied, that are
not supported by the evidence or are contrary thereto.
Whether incited to it by the inflammatory statements of counsel, or blinded by their
sympathy for plaintiff in his unfortunate condition, or, as would appear from the grossly
excessive verdict, acting under the influence of prejudice and passion, the fact remains that
the jury absolutely disregarded the facts and merits of the case.
Taking this case by its four corners, we find that the whole case rests upon the alleged
complaints of Burch to Kitto and Fridley and their alleged promises to repair, but the
testimony of Burch himself, and of his witness, Burney, and the record of the company
introduced in evidence, absolutely negative the correctness of his story.
While the appellate courts have said many times that they would not disturb the verdict or
finding of a trial court upon disputed questions of fact, the appellate courts have also
recognized that the contradiction and inconsistency in the testimony of witnesses are more apt
to be visible to the appellate court than to the trial court, as the appellate court has the
advantage of more deliberate consideration. (Davidson v. Ross, 24 Grant Ch. U. S. 22, 50;
Faulkner v. Simms, 94 N. W. 113; Bordeaux v. Bordeaux, 80 Pac. 6; The Columbian, 100
Fed. 991.)
The well-known tendency of juries, in controversies between individuals and corporations,
to disregard the facts has received judicial recognition. (Herring v. N. Y. Ry. Co., 13 Bar. 9;
Wright v. Southern Express Co., 80 Fed. 85; Collins v. Albany Ry. Co., 12 Bar. 402;
Underhill v. N. Y. Ry. Co., 21 Bar. 489; Cookson v. Pittsburg, 179 Pa. St. 1S4; Lewis v.
Long Island Ry. Co., 65 N. Y. Supp.
Cookson v. Pittsburg, 179 Pa. St. 184; Lewis v. Long Island Ry. Co., 65 N. Y. Supp. 595.)
IX. The evidence shows that any risk arising by reason of the switch stand was assumed by
plaintiff.
Switches near track are within ordinary risks assumed. (Dacey v. N. Y. & C. R. Co., 168
Mass. 479; Bell v. N. Y. & C. R. Co., 168 Mass. 447.)
Where a fence about four feet from track was a permanent visible structure, a brakeman
was held to take a chance of running against it in descending from a passing car. (Ryan v. Ry.,
169 Mass. 267.)
Where an employee continued in service of company two years after platform was built
between tracks in such manner as to leave only a few inches between it and a passing car, he
knew, or might have known with ordinary care, of defect, he assumes risk. (Pingo v. Ry. Co.,
52 Iowa, 276.)
X. The court erred in denying defendant's motion for a judgment of nonsuit.
At the close of plaintiff's case, the defendant moved the court for a nonsuit. One of the
grounds for the nonsuit was that the evidence showed that whatever injury plaintiff sustained
while attempting to board or in boarding any of defendant's cabooses was caused by his own
negligence and fault, and that his own negligence and fault was contributory to the accident
and said injuries, and that the proximate cause of plaintiff's injuries was the result of his own
negligence and lack of proper care. The motion was denied, to which defendant excepted
upon the grounds: First, the evidence failed to show that plaintiff had notified the proper
officials of the defendant of any defect in the switch stand, and that therefore he assumed the
risk arising therefrom; second, that the evidence shows, without conflict, that plaintiff was
guilty of contributory negligence in attempting to board the moving caboose at the time, and
in the place, and in the manner that he did.
In the case at bar the plaintiff on cross-examination testified that, although he knew about
the dangerous condition of the switch and had passed it a number of times the day of the
accident, he attempted to board a moving car from a position but a few feet away from the
dangerous switch in a situation where the forward movement of the car was such as to
inevitably bring him into contact with the switch.
position but a few feet away from the dangerous switch in a situation where the forward
movement of the car was such as to inevitably bring him into contact with the switch. He
sought to excuse this rash act upon the ground that at the moment of boarding the car he had
forgotten about the switch. It must be remembered that, according to his own testimony, he
had no duties to perform at that time. No act upon his part was necessary, except the simple
act of boarding the car, an act which had been performed by him so many times that it must
necessarily have become purely mechanical. Yet he says he forgot about the switch stand
although he must have almost brushed against it before he stopped to wait for the
approaching car. Conceding, however, that his testimony as to his forgetfulness is true, and
that his act of boarding the car as he did was not due to the willingness on his part to take a
chance, the mere fact that he forgot the danger will not relieve him.
In Labatt on Master and Servant, sec. 281, it is said: Temporary forgetfulness of a known
danger at the time of the accident: It would clearly be inconsistent with the rationale of the
defense of assumption of risks to regard it as being applicable in cases where, through mere
inadvertence at the time of the accident, the servant failed to recollect or to observe the
existence of a risk previously known to and appreciated by him. Accordingly, forgetfulness of
and inattention to such a risk, when they are not brought about by any cause which the
average man would consider adequate to justify the mental status thus designated, are
universally regarded as insufficient reasons for excluding defense. A lapse of memory or the
inaction of the faculties of observation, under such circumstances, may fairly be regarded as a
conclusive proof of negligence, the result being that the servant is incapacitated from
recovering, either on that ground or on the ground that he was constructively chargeable with
a knowledge of the risk during the fatal period of forgetfulness or inattention, and that his
responsibility for such injuries as might result from that risk was continuous and
uninterrupted.
The court has passed directly on the question. The act of March 2, 1893, providing that
any employee of any interstate carrier who may be injured by any car used in interstate
traffic by reason of the same not having been equipped with an automatic coupler device,
coupling by impact, shall not be deemed to have assumed the risk thereby occasioned,
though continuing in the employment of the carrier after the unlawful use of the car has
been brought to his knowledge, did not relieve an employee injured by a car not so
equipped from liability for his own contributory negligence.
carrier who may be injured by any car used in interstate traffic by reason of the same not
having been equipped with an automatic coupler device, coupling by impact, shall not be
deemed to have assumed the risk thereby occasioned, though continuing in the employment
of the carrier after the unlawful use of the car has been brought to his knowledge, did not
relieve an employee injured by a car not so equipped from liability for his own contributory
negligence.
Plaintiff, a skilled switchman, was injured while attempting to couple two cars equipped
with link-and-pin couplers, with which he was perfectly familiar. The engineer was under his
directions at the time, and backed the train so slowly that it hardly moved. Plaintiff took hold
of the link of the approaching car with his left hand to guide it, and, having done so, left his
hand between the drawheads until his fingers were crushed by the impact. Held, that under
the particular facts appearing in the case the plaintiff was guilty of contributory negligence as
a matter of law.
It cannot be assumed that by the passage of the salutary law, designed for the protection
of those engaged in a hazardous occupation, Congress intended to offer a premium for
carelessness or to grant immunity from the consequence of negligence. The reasonable
conclusion is that the defense of contributory negligence is as available to a railroad company
after as before the passage of the act of Congress, although it has not complied with its
requirements. (D. & R. G. R. Co. v. Arrighi, 129 Fed. 347.)
XI. The court erred in submitting to the jury the question as to whether or not the plaintiff
had complained to the proper person about the defective switch stand.
One of the grounds for a nonsuit was that the evidence was insufficient to show that the
plaintiff complained to the defendant of any defective switch or switch stand, or that
defendant promised or agreed to repair the same.
Plaintiff relied upon the alleged promise of the yardmaster and station agent and
trainmaster to repair the defect. Conceding for the sake of argument that the evidence is
sufficient to show that both Mr. Fridley, the yardmaster, and Mr. Kitto, the station agent and
trainmaster, had authority to order the defective switch stand repaired, it does not follow
from the evidence that they, or either of them, were the proper persons to whom
complaint should be made, or whose promise to repair was binding upon the company.
defective switch stand repaired, it does not follow from the evidence that they, or either of
them, were the proper persons to whom complaint should be made, or whose promise to
repair was binding upon the company. The evidence introduced by the plaintiff himself
affirmatively established the fact that the person in the employ of the company who should
have been notified by plaintiff of this defective switch stand was the section foreman at
Winnemucca and the superintendent at Ogden.
Rule 309 is as follows: Yardmen, trainmen and other employees are directed to report to
the superintendent any defects in the construction of the yard tracks whereby accident might
happen to men in the discharge of their duties.
Rule 334 is as follows: It is the duty of every employee, regardless of department, to
report defects in road or bridges, or obstructions of any kind, to the superintendent, and, if
possible, to the nearest section foreman.
These rules were introduced in evidence by plaintiff and they constitute a part of plaintiff's
case.
In passing upon this part of the motion for a nonsuit, after ruling that the question as to
whether or not the yardmaster and the station agent were proper parties to notify should be
submitted to the jury, the trial court said: It is very evident, from the testimony so far had in
this case, that there was only one other party around the Winnemucca yards or establishment
that he could properly report to, and that would have been the section foreman, and he said he
did not report to the section foreman, and as to why he did not is a matter of mere
conjecture.
Plaintiff did not testify, nor claim, that he was not familiar with these rules. Instead of
notifying the section foreman, who was directly responsible for the safe condition of the
switch stand, he notified the yardmaster, who was not responsible for such defect, and the
station agent, who was not responsible either. As neither the yardmaster nor the station agent
was responsible, the matter did not impress itself upon their attention as it would have
impressed itself upon the section foreman, with the result, if plaintiff's testimony be true, that
the promises given by the yardmaster and station agent were forgotten; and this, in turn,
brought about the accident which would have been prevented had the rules of the
company been complied with.
agent were forgotten; and this, in turn, brought about the accident which would have been
prevented had the rules of the company been complied with.
It is respectfully submitted that the judgment and the order denying defendant's motion for
a new trial should be reversed.
H. H. Henderson and H. R. MacMillan, for Respondent.
This is an action instituted March 24, 1905, in the District Court of the Fifth Judicial
District, in and for the County of Humboldt, for the recovery of $26,700 damages for
personal injuries sustained by plaintiff while in the employ of the defendant in its railroad
yards at Winnemucca, Nevada, as a yard switchman, on October 26, 1903, at which time
plaintiff sustained injuries necessitating the amputation of his left leg three inches above the
knee and three toes of his right foot. The trial of the cause before a jury at Winnemucca on
December 23, 1907, resulted in a verdict for the plaintiff for $20,000 damages. A motion for
a new trial was demanded and denied, and from the order denying the motion for a new trial
defendant appeals on many grounds, which we will hereinafter consider.
Plaintiff contends that, while attempting to board the front end of a caboose backing
toward him, he was struck by a defective switch stand, and knocked from the step of the
caboose under the wheels. The defendant denies that plaintiff was knocked off the caboose by
coming in contact with the switch stand, and contends that he did not hit the switch stand
until after falling from the caboose, which he attempted to board, thereby relieving the
defendant of any responsibility, by reason of the accident being caused by the plaintiff's fault
and negligence.
In order to maintain this action plaintiff alleged, first, that he was in the employ of the
defendant as a switchman in its Winnemucca railroad yards; second, that he was injured in
the course of his employment by a defective switch stand in the yard; third, that the defendant
was notified of, and had promised to repair, the defect in the switch stand; fourth, that
plaintiff, relying on the promise of the defendant to repair the defective switch stand,
continued in the employ of the defendant; fifth, that the defendant did not keep its
promise to repair; and sixth, that the defect in the switch stand was the proximate cause
of his injuries.
that plaintiff, relying on the promise of the defendant to repair the defective switch stand,
continued in the employ of the defendant; fifth, that the defendant did not keep its promise to
repair; and sixth, that the defect in the switch stand was the proximate cause of his injuries.
The defendant admitted that plaintiff was in its employ as a yard switchman at the time of the
accident, but denied that he was injured by a defective switch stand, or that there was any
defective switch stand in its yards; denied any promise to repair; denied that plaintiff had
suffered any injuries due to the negligence of the defendant; alleged that the rules of the
company required all employees to report to the superintendent any defect in the construction
of the yard tracks whereby any accident might happen to the employees, and further alleged
that the proximate cause of the plaintiff's injuries was his failure to secure a firm handhold on
the caboose while the caboose was in motion, and thereby lost his balance, was thrown under,
and run over by, the wheels of the caboose. The issues being thus made, the parties went to
trial, and after a warmly contested suit upon many interesting and important points of law and
fact, raised and ably pressed and resisted by counsel on both sides, and a mass of conflicting
testimony for and against the issues as contended for, the jury arrived at a verdict in favor of
the plaintiff.
As to the important issues of fact submitted to the jury on which the liability of the
defendant was established, this court, after a careful examination of the testimony adduced, is
of the opinion that there is sufficient substantial evidence in the record to support the verdict
of the jury, and, in harmony with the well-settled rule established in this court in the recent
case of Murphy v. Southern Pacific Company, 31 Nev. 120, and many other cases, that where
there is a substantial conflict of testimony upon any material issue, the verdict will not be set
aside, we prefer to follow, rather than to establish, a new rule. The evidence touching on the
material and vital points involved we will consider later, and during the course of the opinion,
and will proceed to consider and pass upon the errors assigned and relied on by counsel for
the defendant in the order in which they have presented them.
1. Appellant assigns as its first error that the court erred in denying the challenge of
defendant to Juror Nofsinger, upon the ground that the examination disclosed a frame of mind
wherein the juror said that the crippled condition of the plaintiff created in his mind a feeling
that would cause him to lean towards the plaintiff and against the defendant. This challenge
was made under subdivision 7 of section 164 of our civil practice act (Comp. Laws, 3259).
That section provides: Challenges for cause may be taken on one or more of the following
grounds: * * * (7) The existence of a state of mind in the juror evincing enmity against or bias
to or against either party.
In the light of this ground for challenge, let us examine the testimony of Juror Nofsinger
on his voir dire, and see if he so disqualified himself as to bring himself within the pale of a
disqualified juror:
Q. Have you reached any opinion that concerns the merits of the case that would take
evidence to remove it? A. No, sir.
Q. You are entirely unbiased and unprejudiced? A. Yes, sir.
Q. Are you acquainted with Mr. Burch? A. I am not.
Q. Well, are you acquainted with Mr. Burney? A. Whom?
Q. Mr. Burney? A. No, sir.
Q. Are you acquainted with Mr. Kitto? A. Yes, sir. * * *
Q. Do you know of any reason why you should not sit on this jury? A. No, sir; I do not
know of any. * * *
Q. You know the defendant is a corporation? A. Yes, sir.
Q. Have you any prejudice at all against corporations in general? A. No, sir.
Q. Have you any prejudice or feeling against the Southern Pacific, this defendant, for any
cause? A. No, sir.
Q. If taken as a juror, would the Southern Pacific stand equally as well with you as the
plaintiff, who is an individual? A. I think so.
Q. Then you are conscious of no feeling or prejudice that would cause you to lean against
the defendant if taken as a juror? A. No, sir.
Q. Would the fact that the plaintiff to this action lost his leg, and his foot was injured,
create any sympathy in your mind that would lead you to lean towards him and against the
company at the trial of this case? A. It might.
mind that would lead you to lean towards him and against the company at the trial of this
case? A. It might.
Q. It might? A. Yes, sir.
Q. You naturally have sympathy for a man in this condition? A. Yes, sir.
Q. And you feel that that sympathy would influence your mind in case you were taken as a
juror? A. Well, I don't think it would.
Q. You don't think it would? A. No, sir.
Q. Of course we would like to know. A. It would.
Q. What say? A. It would.
Q. It would? A. Yes, sir.
Q. You could not then entirely disabuse your mind of that fact? A. No, sir.
Q. You would go into that box with a feeling of sympathy and friendliness towards the
plaintiff owing to his condition that would influence your mind in making up your verdict, if
you were taken as a juror? A. Yes, sir.
Q. Are you firmly convinced of that, that you are settled in your opinion? A. Well, no, sir;
I am not. I could not say that I am firmly convinced, but I believe it would.
Q. Still you have in your mind that feeling now? A. Yes, sir.
Q. Strong enough, is it, you are as to that impression? A. Yes, sir.
Q. That your sympathy for his condition would influence you in this matter in case you are
taken as a juror? A. Yes, sir; it would.
Q. Then I would take it, in a measure, and the way that is, that you would lean against the
defendant owing to his unfortunate condition? A. I don't know as it would be exactly against
the defendant; it perhaps wouldyes, sir.
Q. It would be against the defendant and in favor of the plaintiff? A. Yes, sir.
Q. You feel conscious in that, do you? A. I do.
Judge MackWe challenge the juror for cause under the seventh subdivision of the
section we read yesterday.
Mr. HendersonI would like to ask one question. Supposing the evidence in this case
would show that the plaintiff himself was negligent, and that the company was not to
blame at all, would you say that that sympathy for the plaintiff would overdo what the
evidence showed? A. I don't know whether it would or not.
posing the evidence in this case would show that the plaintiff himself was negligent, and that
the company was not to blame at all, would you say that that sympathy for the plaintiff would
overdo what the evidence showed? A. I don't know whether it would or not.
Q. You think you would be guided entirely by the evidence? A. Yes, sir.
Q. And you could a true and just verdict render according to the evidence? A. Yes, sir.
Q. And if the evidence should be against the plaintiff, you could bring in a verdict for the
defendant? A. Yes, sir.
Q. Now, if you were called as a juror in this case, would you put aside that feeling of
sympathy, and try it upon the evidence, and the instructions of the court? A. I would.
Q. And render your verdict accordingly. A. Yes, sir.
Mr. HendersonWe deny the challenge.
The CourtThe challenge is on the ground that there is a prejudice already existing?
Judge MackPrejudice towards one and in favor of the other.
The Court(Q.) You think, Mr. Nofsinger, that the plaintiff in this case is considerably
injured, and crippled for life; do you think that would have any influence over you in
rendering your verdict? A. I do not think it would.
The CourtChallenge denied.
A careful study of the questions propounded and answers given by the juror, which, it is
alleged, disqualifies him, read in connection with the entire examination, which should
always be done before passing upon the qualification of a juror, leads us to the conclusion
that the juror was not disqualified. It is apparent to us that what the juror was trying to
express, as indicated by his answers, as influencing the mind of the juror toward a verdict in
favor of the plaintiff, was that he entertained a feeling of brotherly sympathy toward the
plaintiff because of his misfortune, which is not at all unnatural, and, in fact, would be
unnatural if otherwise, but that, notwithstanding this sympathy which he entertained for the
plaintiff, he could put aside any such feeling of sympathy, and try the case upon the evidence
and the instructions of the court.
instructions of the court. The examination discloses to our mind that he did not thoroughly
comprehend the answers he was making to defendant's counsel, which they assert disqualifies
him, and this is evidenced by his answers to both counsel for the defendant and plaintiff, and
the court, after he thoroughly comprehended what was legally required of him in the
discharge of his duty as a juror. No place in the examination of this juror did he testify that he
could not do his duty in a fair and impartial manner toward both the plaintiff and defendant,
but repeatedly stated that, if accepted as a juror, if the evidence warranted a verdict against
the plaintiff, he would bring in a verdict for the defendant; would put aside any feeling of
sympathy he entertained for the plaintiff, and render a true and just verdict according to the
evidence and under the instructions of the court.
The Supreme Court of California, in the case of Fitts v. Southern Pacific Co., which was
an action against the railroad company for damages for injuries sustained, in commenting
upon the qualification of a juror who had long been in the employ of the railroad, but had
ceased his employment, and who stated, in effect, that because of his past association with the
railroad he knew that many of this character of cases against the railroad were caused through
the carelessness of the employees themselves, and therefore his sympathies were with the
railroad, said: It is true that a general abstract bias which a juror may entertain to a class of
litigation will not of itself disqualify him from trying a cause, when it appears that,
notwithstanding he entertains that feeling, he can set it aside, and can and will fairly and
impartially decide the particular case solely upon the evidence and the instructions of the
court. (149 Cal. 310, 86 Pac. 710, 117 Am. St. Rep. 130; Baker v. Borello, 136 Cal. 166, 68
Pac. 591; Graybill v. DeYoung, 146 Cal. 422, 80 Pac. 618.) And, analogously to the
reasoning of this rule laid down by the Supreme Court of California, we believe it is proper to
state, as a correct rule in cases of this character, regarding the general abstract bias which a
juror may entertain when he expresses a sympathy for the plaintiff because of his unfortunate
condition by reason of an accident, but believes and positively states that he can set aside any
sympathy which he entertains toward plaintiff, and render a true and just verdict on the
evidence at the trial and the instructions as given by the court, that a general expression
of sympathy for a plaintiff in this class of cases, such as disclosed by the above
examination, would not be sufficient to disqualify him as a juror under the exception
proposed.
aside any sympathy which he entertains toward plaintiff, and render a true and just verdict on
the evidence at the trial and the instructions as given by the court, that a general expression of
sympathy for a plaintiff in this class of cases, such as disclosed by the above examination,
would not be sufficient to disqualify him as a juror under the exception proposed.
The Supreme Court of the United States, in the case of Reynolds v. United States, said:
The theory of the law is that a juror who has formed an opinion cannot be impartial. Every
opinion which he may entertain need not necessarily have that effect. * * * It is clear,
therefore, that upon the trial of the issue of fact raised by a challenge for such cause the court
will practically be called upon to determine whether the nature and strength of the opinion
formed are such as in law necessarily to raise the presumption of partiality. The question thus
presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like
any other issue of that character, upon the evidence. The finding of the trial court upon that
issue ought not to be set aside by a reviewing court, unless the error is manifest. (98 U. S.
145, 25 L. Ed. 244.)
The Supreme Court of Nevada, in the case of State v. Simas, in considering a similar
question to the one now under consideration, said: The jurors being examined in the
presence of the judge of the trial court, and subject to his observation and examination, and
the judge in most instances being personally acquainted with the jurors, where there is not a
dense population from which the jurors are summoned, his judgment as to the qualification of
the jurors is entitled to great weight, and should not be overruled by the appellate court,
unless it is clearly manifest that he has erred in his rulings upon the challenge interposed. It
devolves upon the appellant to affirmatively and clearly show error. (25 Nev. 451.)
Viewed in the light of these opinions, we believe the trial court properly denied the challenge
for cause to the juror Nofsinger. This juror, however, was later peremptorily excused from the
jury, and was not one of the twelve jurors who tried this cause and unanimously agreed on
this verdict. It is well settled by this and other courts that, even though the court erred in
denying a challenge for cause, if the complaining party peremptorily challenges the juror
complained of, and he is excused, and the complaining party has peremptory challenges
remaining, even if error were committed by the trial court in denying a challenge for
cause, the peremptory challenging and excusing of the same juror cures the error
committed, and would be deemed error without injury.
the court erred in denying a challenge for cause, if the complaining party peremptorily
challenges the juror complained of, and he is excused, and the complaining party has
peremptory challenges remaining, even if error were committed by the trial court in denying a
challenge for cause, the peremptory challenging and excusing of the same juror cures the
error committed, and would be deemed error without injury. (Fleeson v. Savage M. Co., 3
Nev. 157; State v. Raymond, 11 Nev. 98; 1 Thompson on Trials, sec. 115; State v. Hartley, 22
Nev. 342.)
In the present case it is urged that the defendant was obliged to use one of its peremptory
challenges on the juror complained of, thereby depriving it of the right to exercise its full
quota of peremptory challenges upon objectionable jurors, and that there was one
objectionable juror on the jury whom it would have peremptorily challenged had it not been
obligated to exercise one of its peremptory challenges on Juror Nofsinger, and had no
peremptory challenges remaining. We believe if the challenging for cause had not been
properly denied by the court, that, under the circumstances in the present case, it would have
been reversible error to have forced the defendant to use a peremptory challenge in getting the
objectionable juror off the panel, thereby exhausting all of its peremptory challenges and
depriving it of the substantial right to have used the challenge on any other juror who might
have been objectionable to it. (Hubbard v. Rutledge, 57 Miss. 12, citing 3 Blackstone's Com.
363; 2 Graham & Watterman's New Trials, 245, et seq.; State v. Fourchy, 51 La. Ann. 228,
25 South. 109; State v. Brown, 15 Kan. 400; People v. McQuade, 110 N. Y. 284, 18 N. E.
156, 1 L. R. A. 273; C., R. I. & P. Ry. Co. v. Downey, 85 Ill. App. 179; People v. Casey, 96
N. Y. 123; Ward v. State, 102 Tenn. 734, 52 S. W. 996; Dowdy v. Com., 9 Grat. 727, 60 Am.
Dec. 322; Fletcher v. Crist, 139 Ind. 126, 38 N. E. 472; State v. Rutten, 13 Wash. 203, 43
Pac. 30; Hartnett v. State, 42 Ohio St. 568; Thurman v. State, 27 Neb. 628, 43 N. W. 404;
Miller v. State, 29 Neb. 445, 45 N. W. 451; Theisen v. Johns, 72 Mich. 291, 40 N. W. 727;
Polk v. State, 45 Ark. 165; Huntley v. Territory, 7 Okl. 60, 54 Pac. 314; State v. McQuaige, 5
S. C. 429; Dolan v. U. S., 116 Fed. 578, 54 C. C. A. 34; U. S. v. Schneider, 21 D. C. 3S7;
People v. Weil, 40 Cal. 26S; Grand Lodge v. Taylor, 99 Pac. 570; Robinson v. Randall, S2
Ill. 521; Railway Company v. Chance, 57 Kan.
U. S. v. Schneider, 21 D. C. 387; People v. Weil, 40 Cal. 268; Grand Lodge v. Taylor, 99
Pac. 570; Robinson v. Randall, 82 Ill. 521; Railway Company v. Chance, 57 Kan. 40, 45 Pac.
60; Houghton v. Mkt. St. Ry. Co., 1 Cal. App. 581, 82 Pac. 972.) Of course, if defendant had
exercised all its peremptory challenges, and succeeded in removing all jurors which it deemed
objectionable, and it was entirely satisfied with the jury as composed, and did not desire to
exercise another peremptory challenge, under such circumstances, though error, it might not
be considered reversible error.
2. Defendant assigns as error that the damages awarded by the jury were excessive, and
were given under the influence of passion and prejudice. The very nature of the proposition
involved makes it manifest to any one who gives the subject a moment's reflection that there
can be no fixed rule as to the amount of damages a person may be entitled to in cases of this
character, and that every case must be considered separately, and all the conditions and
circumstances surrounding the accident and the injured party investigated and viewed in the
light of the testimony given at the trial, before the amount of damages awarded an injured
party can be determined as being just or excessive, or whether the verdict was influenced by
passion or prejudice. This court, recognizing the solemnity of the verdict of twelve jurors, to
whom, under our system of jurisprudence, is awarded the special province of determining the
amount of compensation which should be given a plaintiff, has, very succinctly we believe,
laid down the proper rule for appellate courts to follow in consideration of verdicts, in the
following language: There being no absolute fixed legal rule of compensation, appellate
courts ought not to interfere with a verdict, unless it clearly appears that there has been such a
mistake of the principles on which the damages were estimated, or some improper motive of
bias indicating passion or prejudice upon the part of the jury. (Solen v. Railway Co., 13 Nev.
138.) The same rule was laid down by this court in Taylor v. Nevada Ry. Co., 26 Nev. 415,
where a verdict of $15,500 awarded by the jury was sustained.
The Supreme Court of California, in Aldrich v. Palmer, 24 Cal. 516, speaking upon this
question, stated: In actions for personal torts the law does not attempt to fix any precise
rules for the measure of damages, but from the necessity of the case leaves their
assessment to the good sense and unbiased judgment of the jury.
for personal torts the law does not attempt to fix any precise rules for the measure of
damages, but from the necessity of the case leaves their assessment to the good sense and
unbiased judgment of the jury. Their verdict, as in all other cases, is subject to review by the
court, but it will never be disturbed unless the amount of damages is obviously so
disproportionate to the injury proved as to justify the conclusion that the verdict is not the
result of cool and dispassionate consideration of the jury. * * * Hence the courts have always
sparingly exercised the power of granting new trials in such cases. Where the law furnishes
no rule of the measure of damages, their assessment is peculiarly within the province of the
jury, and the court will never interfere with the verdict merely on the ground of excess. Upon
such question the court has no right to substitute its opinion for that of the jury, merely
because it happens to differ from theirs. (Christensen v. Floriston P. Co., 29 Nev. 552;
Powell v. N. C. & O. Ry., 28 Nev. 305.)
The case under consideration was tried before three juries, each composed of twelve men, and
in each of the trials a unanimous verdict was returned in favor of the plaintiff. The accident
occurred nearly six years ago, and a suit for the recovery of damages for injuries sustained
was first instituted in a Utah court, wherein a verdict of $7,000 was awarded the plaintiff.
This suit was reversed, and the action dismissed in the Utah court without prejudice. It was
thereafter reinstituted in the District Court of Humboldt County, Nevada, and on motion of
the plaintiff was remanded to the federal court, wherein it was tried before Judge Hawley,
sitting with a jury, and a verdict for $18,000 returned in favor of the plaintiff. This trial was
nullified by the Circuit Court of Appeals on jurisdictional grounds (152 Fed. 168, 82 C. C. A.
34), and the cause remanded to the district court, wherein a verdict for $20,000 in favor of the
plaintiff was rendered, two years after the $18,000 verdict. The plaintiff at the time of the
accident was a man thirty-seven years of age, in the employ of the defendant, earning from
$95 to $100 per month. The evidence showed that he had occupied several positions for the
defendant in the repair department, then as switchman, night switchman, day switchman,
and finally as foreman of one of the crews, and that he was gradually advancing in his
positions in the employ of the defendant.
as switchman, night switchman, day switchman, and finally as foreman of one of the crews,
and that he was gradually advancing in his positions in the employ of the defendant. The
evidence also disclosed that he had temporarily acted as yardmaster for the defendant.
Plaintiff testified that he was torn from the caboose and thrown down upon the track, and
that the cars ran over his left leg and right foot, and that he became unconscious; that it ran
over his left leg just below the knee, and diagonally across the toes of the right foot, being the
big toe and the next two adjoining it; that he was picked up, and put into the caboose, where
he remained until he was placed on one of the passenger trains, and went to the company's
hospital in San Francisco. There his left leg was amputated three inches above the knee, and
three toes of his right foot were also amputated. The amputation of the leg above the knee
was about three inches above the knee joint. The toes were all taken off at the body of the
foot, being the big toe and the next two toes to it. He was in the hospital about four months.
He further testified that he was not as strong as he used to be; that he was weaker physically.
I feel a decline falling upon me, and I am not able to accomplish anything as I undertake to
do in the way of work, or to do anything, so that I know I am handicapped that way
physically. He weighed about fifteen to eighteen pounds less than at the time of the accident.
He testified that he could wear an artificial leg at times, but that it irritated the stump and
made it sore, and that he had to lay it aside to get relief. That when he walks his right foot
pains him severely if he is on it a while, and that he has to rest and relieve the weight on it.
That since his injury he only began to earn anything about a year prior to the time of the trial,
when he secured a star mail route running from Ogden to Ogden Valley, a distance of
nineteen miles one way. That his contract figures for this position were $60 a month or about
$700 a year. That he is required to have four horses and wagon, running two teams
practically, and that after feeding his horses and paying expenses, etc., he earns $12 or $15 a
month net. That he owns a small place, eleven and a half acres of farming land, hay, and
grain just outside of Ogden, from which he derives about $150 per year.
a half acres of farming land, hay, and grain just outside of Ogden, from which he derives
about $150 per year.
Dr. Samuels, a witness for the defendant, and whose evidence had never been introduced
in any of the former trials, testified that he was called to wait upon Burch, and found him
lying upon the floor of the caboose at the depot. That his left leg was crushed from the ankle
to the knee. That the muscles were torn completely loose from the bone of the left leg. The
flesh was broken open, and the whole business was lacerated and torn to pieces; all injured,
torn, and lacerated and full of cinders. That there were shreds of flesh there. He was bleeding
moderately. That the more laceration there is the less chance there will be for a hemorrhage.
That he removed his clothing, dressed the leg, washed all the cinders out; the cinders being
mixed with dirt. That there was plenty of roadbed in the leg. He used hot water and bichloride
of mercury, and cotton for a sponge, allowing the water to run over the injury. He also used a
swab to swab out whatever dirt he could, and after cleaning it he dressed it, and applied a
rubber bandage above the knee to control the hemorrhage and prevent any further bleeding.
The right foot was crushed, and he treated that precisely as he did the leg, having had the shoe
and stocking removed. That the right foot was crushed so badly that he told a bystander and
the plaintiff that there was no possibility of saving the foot. That opinion was formed from
the condition of the foot at the time. There was some shock, and plaintiff was suffering pain,
and he gave him some medicine to relieve the pain, but that while he was dressing the
wounds plaintiff had no medicine, and that he undoubtedly suffered pain even after the leg
was taken off.
In passing upon this same point urged by appellant against the $18,000 judgment rendered
in the circuit court, Judge Hawley, in denying the motion for a new trial, said: It must be
admitted that the jury were exceedingly liberal in the amount of damages allowed and
marched up near the border line; but I do not feel authorized to say that the amount is so
excessive as to indicate passion or prejudice on the part of the jury, which seems to be the
only ground that gives authority for the court to interfere with the amount of a verdict."
which seems to be the only ground that gives authority for the court to interfere with the
amount of a verdict. (Burch v. Southern Pacific, 145 Fed. 443.) There is a line of authorities
which support the following rule stated in 3 Cyc., at page 355, in the following language: As
a general rule, after two or more successive and concurring verdicts, the appellate court will
be strongly disinclined to interfere with the last verdict, and findings under such
circumstances are usually accepted as final if the evidence is conflicting, and there are any
tending to support the verdict, unless it is plain that the verdict is founded on evidence which
does not tend to prove a material fact necessary to a recovery, or is in palpable disregard of
the evidence. (Todd v. Demeree, 15 Colo. 88, 24 Pac. 563; Browns v. Lutin, 16 Colo. App.
263, 64 Pac. 674; Egbers v. Egbers, 177 Ill. 82, 52 N. E. 285; Jacksonville Ry. v. Neff, 36 Fla.
584, 18 South. 765; Windsor v. Cruise, 79 Ga. 635, 7 S. E. 141; Davis v. Smith, 30 Ga. 263;
Gruver v. Dixon, 85 Ill. App. 79; Chicago Ry. v. Kelly, 80 Ill. App. 675; Hill v. Bahrns, 158
Ill. 314, 41 N. E. 912; Peacocke v. Mauck, 42 Ind. 478; Ross v. Ross, 5 B. Mon. 20; Meguiar
v. Feslar, 42 S. W. 920; Haycroft v. Walden, 14 Ky. Law Rep. 892; Louisville Ry. v.
Connelly, 7 S. W. 914; Womack v. Fudikar, 47 La. Ann. 33, 16 South. 645; Bowman v.
Flower, 11 La. 513; Brownell v. Fuller, 60 Neb. 558, 83 N. W. 669; Mo. Pac. Ry. Co. v. Fox,
60 Neb. 531, 83 N. W. 744; Archer v. N. Y. R. R. Co., 106 N. Y. 589, 13 N. E. 318; Cole v.
Fall Brook Coal Co., 87 Hun, 584, 34 N. Y. Supp. 572; Ry. Co. v. Waldhaur, 84 Ga. 706, 11
S. E. 452; McNeil v. Lyons, 22 R. I. 7, 45 Atl. 739; Duggan v. Cole, 2 Tex. 381; Daisley v.
Dun, 107 Fed. 218; Russ v. Steamboat War Eagle, 14 Iowa, 363; Peoria Ry. Co. v. Rice, 46
Ill. App. 60; Holmes v. Jones, 69 Hun, 346, 23 N. Y. Supp. 631; Johnson v. Hannahan, 3
Strob. 425; Giese v. Schultz, 69 Wis. 521, 34 N. W. 913; Linss v. Ry. Co., 91 Fed. 964, 965;
Village v. Rowe, 66 Ill. App. 55; McDonald v. Postal Tel. Co., 22 R. I. 131, 46 Atl. 407;
Loker v. Ry., 94 Mo. App. 481, 68 S. W. 373; Shaw v. Boston Ry. Corp., 8 Gray, 45.)
While we believe that the rule cited in Cyc., relative to successive verdicts, is a correct rule
in so far as it may be considered as a circumstance to be regarded by the appellate court going
to determine the righteousness of appellant's cause, yet in no wise binding upon the
court, because a defendant is entitled to have his cause tried any number of times until it
is tried in accordance with law and before a fair and impartial jury, the $20,000 verdict in
this case, when considered in the light of all the facts and circumstances, is not so great
as to convince us that it is excessive, or given under the influence of passion or prejudice,
and therefore we do not feel inclined or warranted in disturbing the verdict.
going to determine the righteousness of appellant's cause, yet in no wise binding upon the
court, because a defendant is entitled to have his cause tried any number of times until it is
tried in accordance with law and before a fair and impartial jury, the $20,000 verdict in this
case, when considered in the light of all the facts and circumstances, is not so great as to
convince us that it is excessive, or given under the influence of passion or prejudice, and
therefore we do not feel inclined or warranted in disturbing the verdict. (Railway Co. v.
Nesbit, 43 Tex. Civ. App. 630, 97 S. W. 825; Retan v. Railway Co., 94 Mich. 146, 53 N. W.
1094; Williamson v. Railway Co., 53 App. Div. 339, 65 N. Y. Supp. 1054; Texarkana Ry. Co.
v. Toliver, 37 Tex. Civ. App. 437, 84 S. W. 375; Railway Co. v. Topliff, 18 Ohio Cir. Ct.
Rep. 709; Strand v. Railway Co., 101 Minn. 85, 111 N. W. 958; Fonda v. Railway Co., 77
Minn. 336, 79 N. W. 1043; Caldwell v. N. J. Steamboat Co., 47 N. Y 282, 297; Railway Co.
v. Brazzil, 78 Tex. 314, 14 S. W. 609; Smith v. Railway Co., 92 App. Div. 213, 86 N. Y.
Supp. 1087; Bourke v. Butte Co., 33 Mont. 267, 83 Pac. 740; Commonwealth El. Co. v.
Rooney, 138 Ill. App. 275; Mo., K. & T. R. Co. v. Bailey, 115 S. W. 601; Whitehead v.
Wisconsin Co., 103 Minn. 13, 114 N. W. 254; Union Pac. R. Co. v. Connolly, 77 Neb. 254,
109 N. W. 368; Tex. & N. O. R. Co. v. Parsons, 109 S. W. 240, 113 S. W. 914; Williams v.
Spokane R. Co., 42 Wash. 597, 84 Pac. 1129; Reeve v. Gas Co., 152 Cal. 99, 92 Pac. 89;
Railway Co. v. Shelton, 30 Tex. Civ. App. 72, 69 S. W. 653; Erickson v. Brooklyn Ry. Co.,
11 Misc. Rep. 662, 32 N. Y. Supp. 915; Ehrman v. Railway Co., 60 Hun, 580, 14 N. Y. Supp.
336; Hall v. Railway Co., 46 Minn. 439, 49 N. W. 239; Engler v. Western Union Tel. Co., 69
Fed. 185; Bugge v. Seattle Elec. Co., 103 Pac. 825.)
3. Appellant assigns as error the court's permission of plaintiff's counsel to refer in his
argument before the jury to the fact that defendant had secured a removal of the case to the
United States Circuit Court. The defendant secured a removal of the case from Humboldt
County to the Circuit Court for the District of Nevada, upon the ground that both plaintiff and
defendant were nonresidents of Nevada. The United States Circuit Court held that defendant
was entitled to such removal.
to such removal. (139 Fed. 350.) Subsequently the United States Circuit Court of Appeals
reversed the Circuit Court, and held that the federal court had no jurisdiction of the cause.
Thereupon plaintiff had the case remanded to the district court in Humboldt County.
During the closing argument of plaintiff's counsel the following proceedings were had:
Mr. MacMillanMr. Shoup stood before you and told you how fair and how square he
thought you werewhat accomplished jurors he thought you would make; then throwing his
hands into the air, and shaking his hands in an eloquent way, he says: We are not afraid to
bring our witnesses before this jury for this trial where those witnesses have lived. We are not
afraid to have the credibility of our witnesses tested by men who have seen them, and have
lived here, and who have known them in their daily life.' Oh, Mr. Shoup, how different is the
tale you sing here tonight to the one that you sang here some time ago to this court. I hold this
in my hand which would convict counsel for having changed their minds
Mr. ShoupI object to any reference to any record of this case, not in evidence and before
the jury.
Mr. MacMillanPart of the files; and I consider that I have a right to use them before the
jury.
The CourtProceed with the argument.
Mr. ShoupWe except, if your honor please.
Mr. MacMillanIf that was the case, why did he remove it from here to the federal court
of the United States, where the jurors of this town in which the witnesses lived would not be
called upon to pass upon their credibility?
Mr. ShoupThat is also subject to the same ruling, objection, and exception. We renew
our objection to the statement of counsel, and assign the statement to the jury as error.
Mr. MacMillanFor the purpose of the record, I wish to state that this reply is simply
made because Mr. Shoup stated to the jury they were not afraid to submit the testimony of the
witnesses to the jurors of this town in which the witnesses lived.
Mr. ShoupWill the Court rule on the matter? The CourtI do not think there is any
ruling to be made.
The CourtI do not think there is any ruling to be made.
Mr. ShoupTo the overruling of such objection we take our exception.
These remarks of plaintiff's counsel were certainly improper, and the trial court should
have immediately sustained the objection of the defendant's counsel. While we believe such
remarks to be error, yet in this particular case, in view of the fact that the jurors already knew
that the case had been removed to the United States court, and in view of the trial court later
in its instructions to the jury binding them to return their verdict upon the evidence and the
law, which palliated, but did not excuse entirely, the language of respondent's counsel, or the
court's failure to promptly check the improper remarks in reference to the cause being
remanded, yet we believe, under all the circumstances in the present case, that it was not
sufficient to amount to reversible error. It is not every case where the court has considered the
remarks of counsel, or the action of the court thereon, to be error that a reversal of the
appellate court has been awarded therefor. The question in each case must be determined
from it own particular facts.
4, 5. Counsel further complains that the court erred in permitting plaintiff to introduce
evidence to the effect that he had complained to Yardmaster Fridley about the defective
switch stand, when it was not shown that Fridley had authority to promise that such defect
would be repaired, and also that the court erred in permitting evidence to be introduced
showing that the yardmaster had authority to hire and discharge employees. We agree with
counsel for appellant that the plaintiff, in order to sustain his case, should show that the
defective switch stand was the proximate cause of his injury, also that it was incumbent upon
him to show that a promise to repair such defect had been made by one representing the
defendant, with authority to make such a promise, and further that, relying upon such
promise, he had continued in the employ of the defendant. The question arises, if a notice of
the defective switch stand was made to the yardmaster and trainmaster, and they promised to
cause the same to be repaired, whether or not such notice to these parties in authority and
their promise was of such a character as to bind the defendant.
parties in authority and their promise was of such a character as to bind the defendant. After a
careful review of the evidence and the authorities we are impressed conclusively that if such a
notice was given to these parties, and they promised to see the defect remedied and failed to
do so, their action in not so doing was sufficient to render the defendant liable for any
damages which might occur by reason of their failure.
When the case was before the circuit court on a motion for a new trial, Judge Hawley, in
passing upon the authority of the yardmaster to order repairs or cause them to be made, in
denying the motion (145 Fed., at page 444, et seq.), said:
At the trial I was impressed by the testimony of the witnesses that there was some conflict
as to whether or not the yardmaster was given authority to make repairs when notified that
anything in his department was in a defective and dangerous condition. Mr. Burch, the
plaintiff, testified:
Q. To whom had you made that report (defect of the switch stand)? A. To the yardmaster
on one occasion when working by the switch.
Q. Who was the yardmaster you made the report to? A. Mr. Fridley, William Fridley, I
believe.
Q. Do you know what the duties of the yardmaster were? A. Well, he has to exercise a
general jurisdiction over the yard work.
Q. Does he hire and discharge men? A. Yes, sir.
Q. Does he have authority to order repairs? A. Yes, sir.
Q. I will ask you, do you know of your own knowledge whether the yardmaster ever
ordered repairs? A. Yes, sir.
Q. You say you know of your own knowledge of the yardmaster giving orders for
repairs? A. Yes, sir.
Q. Do you know whether afterwards the repairs were made? A. Yes, sir; they were
afterwards made.
Mr. Fridley, the yardmaster, testified as follows:
Q. As yardmaster there will you explain to the jury what your duties were? A. I was
supposed to look after the business that was carried on in the yard there during these
particular hours that I was on duty, and to hire and discharge the men.
Q. Was one of your duties to order repairs made? A. Yes, sir.
Q. You never had any specific instructions as to what your duties were out there in the
yard? A. No, sir.
Q. And you assumed the duties there that you had seen other men assume? A. Yes, sir.
Q. Was that the custom there in that yard? A. Yes, sir.
Q. That the yardmaster gave instructions for repairs? A. Yes, sir.
Q. And you followed out that custom? A. I did, sir.
Without quoting any further testimony I am still of the opinion that there was sufficient
evidence to justify the leaving of this question to the jury. * * * The charge given by the court
in Parody v. Chicago M. & St. P. Ry. Co. 15 Fed. 205, 206, supports the instruction under
review. Judge Nelson, among other things, said: There is evidence tending to show that the
drawbar was an improper one, and not in ordinary use by the company in the yard, that the
switch engine on which plaintiff worked when first employed did not have it attached, and
that shortly after he worked upon this engine he complained to the yardmaster, telling him
that it was dangerous, who promised to remove it, but did not, and that he remained at work
after complaint and unfulfilled promise until he was injured. In regard to the notice required
to inform defendant of this, it is sufficient that notice was given to that agent or servant of the
defendant who made a requisition for the appliances necessary to be used in the yard of the
defendant, and whose duty it is to guard against injurious consequences of defects in the
particular appliances used therein. Such a person is the yardmaster. He represents the
company, and since it delegated to him the authority to make requisitions for engines, etc., for
the use of the yard, notice to him of dangerous drawbars will be notice to the defendant. He is
the proper person; and, if after such notice he promised to remedy it, a failure to do so is the
negligence of the defendant.' In Pieart v. Chicago R. I. & P. Ry. Co., 82 Iowa, 148, 159, 47
N. W. 1017, 1019, the court said: But plaintiff claims that deceased protested against using
the engine without such board, and that the agent of the defendant promised that that
engine should soon be removed, and that deceased should not be required to work but a
short time with it, and, by promises and assurances given, induced him to continue in his
position as switchman.
board, and that the agent of the defendant promised that that engine should soon be removed,
and that deceased should not be required to work but a short time with it, and, by promises
and assurances given, induced him to continue in his position as switchman. Appellant
contends that there is evidence of such promise, and that the court erred in submitting that
question to the jury. Numerous authorities are cited to show that there must have been an
express or implied promise, and, upon the other hand, that a mere assurance upon which the
employee relied is sufficient. If, upon objection to the employer or one authorized to act for
him, the employee is given to understand that the defect will be remedied, he has the right to
act upon that assurance. This brings us to inquire whether complaint was made to one having
authority in such matters. The two conversations relied upon were with Cain, the yardmaster,
under whose orders deceased performed his duties as switchman. It appears that the
yardmaster had no authority to direct repairs on the engine, but if an engine furnished him
was lacking some appliances necessary for switching, it was his duty to report to the
trainmaster, who would determine the advisability of furnishing whatever was required. We
think under this showing the yardmaster was the proper person to whom deceased should
complain. * * * Defendant's business is transacted by many officers, agents and servants of
different grades. It being the duty of the yardmaster to report such complaints to another, the
complaint was properly made to him, though he may not have had the authority to remedy the
difficulty complained of. * * * No particular form of words is required to constitute a
complaint or assurance. If by any acts or expressions the deceased gave the proper agent of
defendant to know that he was unwilling to continue in the employment without running
boards on the engine, that was a sufficient complaint; and if by any acts or expressions the
agent gave the deceased person to believe that running boards would be furnished, that was a
sufficient assurance or promise. * * * If such assurance were made, and deceased was
induced thereby to continue in the employment, then, as we have seen, the defendant assumed
the risks incident to the performance of the work without running boards until such boards
should be furnished.
until such boards should be furnished. The foregoing views of the law are so uniformly
sustained by the authorities that we do not deem it necessary to make citations. We think
there was no error in submitting the inquiry as to the complaint and promise or assurance to
the consideration of the jury.'
In 1 Labatt on Master and Servant, cited by the defendant at section 420, under the head
of Whose Promise is Binding on the Master,' the author said: The question whether the
employee in question was authorized to make the alterations requisite to secure the servant's
safety is for the jury, whenever evidence has been adduced which is reasonably susceptible of
the construction that he was so authorized.'
In the present case we believe the testimony upon these points was even stronger than in
trial before Judge Hawley. Mr. Burch, the plaintiff, testified in part upon these questions as
follows:
Q. Do you know whether while you were working there, whether the yardmaster ordered
repairs to be made, and if the repairs were made in pursuance of those orders? A. Yes, sir.
Q. Do you know of your own knowledge whether or not the yardmaster hired and
discharged employees? A. Yes, sir; I do.
Q. Did he? A. Yes, sir.
Q. Do you know who was the head officer of the Southern Pacific Company at
Winnemucca, who represented the company here? A. Yes, sir.
Q. Who was it? A. Mr. Kitto, the station agent. * * *
Q. Now will you explain to the jury, when that caboose came along there, how you made
your mount on the steps? A. Well, I made the mount in the usual manner as the car came to
me. I proceeded to get to that point just southwest as the car came up, and I just judged about
the proper distance to get ready to mount the car, and as it came by I grabbed the handhold,
and threw my left foot upon the step to mount in the usual manner, and was carried by the
switch when I was struck. I was struck by the top part of the switch.
He further testified that he notified the yardmaster that the switch stand was defective and
needed to be repaired, and that the yardmaster promised him that he would repair it, and
that he relied upon this promise; that he also advised Mr.
and that the yardmaster promised him that he would repair it, and that he relied upon this
promise; that he also advised Mr. Kitto, the trainmaster and station agent, of the defect in the
switch stand; that he was promised by the trainmaster that it would be fixed, and that he also
heard the trainmaster direct the yardmaster to have it attended to; that the trainmaster was the
head officer of the defendant at Winnemucca, who represented the company; that there was a
scar on his hip, back of the hip bone, caused by reason of coming in contact with the switch
stand; that at the point where the scar is on his hip, he is five or six inches through; that he
relied upon the promise of Kitto, the trainmaster, that he would have the switch stand fixed;
that he was never furnished with a copy of the rules, never had a book of rules in his
possession; and that he never was required to pass an examination upon the rules.
Mr. Dwyer upon this question testified as follows: I worked for the Southern Pacific
Company as yardmaster at Winnemucca, where this accident occurred, for a period of twenty
years, and was the yardmaster at the time the accident occurred, though I was temporarily on
a vacation.
Without any objection from the defendant he testified that as yardmaster he had full charge
of the yards at Winnemucca.
Q. You may state whether or not all of the duties of the yardmaster which you exercised
during the twenty years you were yardmaster of the defendant company here at Winnemucca
were prescribed by the book of rules. A. No, sir.
Mr. Dwyer also testified that during the time he was yardmaster up to the time of this
accident, as such yardmaster he frequently employed and discharged switchmen in the
Winnemucca yards; that during the time he was yardmaster, and up to the time that Mr. Burch
received his injury, it was the custom of the yardmaster in the Winnemucca yards to order
repairs made of anything that was out of order or defective; that there was no general rule,
and that there was no special rule under the head of Duties of Yardmaster in the book of
rules, which provided or prescribed the duties of the yardmaster with reference to repairs or in
regard to ordering repairs. The duties which were prescribed in the book of rules did not
include any duties with reference to repairs being made.
rules did not include any duties with reference to repairs being made.
Q. Then I will ask you to state whether or not you did, during the time that you were
yardmaster, up to the time of this accident to the plaintiff, when the plaintiff was injured,
order repairs to be made. A. I most certainly did, sir.
Q. Who was in immediate charge of the switchmen in the yards at Winnemucca during the
time you were employed there? A. The yardmaster.
Q. To whom were the switchmen required to report during that time? A. In what way?
Q. In any way. A. To the yardmaster concerning their duties.
Q. Concerning their duties or anything they had to do about the yards? A. Yes, sir; their
work.
Q. Now, when the night yardmaster was present in the yard, state whether or not his duties
were the same as those of the day yardmaster? A. Yes, sir.
Q. And if there was a temporary yardmaster placed in charge of the work, what, if any,
difference was there in the duties he had to perform? A. No difference.
Q. The same duties as the regular yardmaster? A. Yes, sir.
Q. And the same authority? A. Yes, sir; same authority.
Q. When you ordered repairs to be made, state whether or not they were made? A. Yes, sir.
The testimony of Mr. Dwyer, found on page 269 of the transcript, to the effect that while
he was yardmaster he ordered repairs to be made, and the testimony found on pages 262 and
270 to the effect that the yardmaster had full charge of the yards at Winnemucca, and that the
switchmen were required to report to the yardmaster, was all introduced without any
objection on the part of the defendant.
Mr. Dwyer further testified, on pages 298, 299, and 300 of the transcript, that while he was
yardmaster at Winnemucca up to the day of the accident, it was the general practice of the
yardmasters in the Winnemucca yards to employ and discharge men, and that it was, during
such period of time, the general practice of yardmasters to order repairs to be made where
defects were found in the yards, such as switch stands; and on page 301 of the transcript he
further testified that, while he was employed as yardmaster up to the date of this
accident, he had ordered repairs to be made of defective switch stands in the yards at
Winnemucca whenever the occasion required it, and that he did this quite often; that the
yardmasters who were generally employed in the yards up to the date of this accident
other than himself also ordered repairs to be made; that the directions to make the
repairs would be given by the yardmaster to representatives of the department that made
the repairs on track equipment, the section foreman in charge at Winnemucca.
and on page 301 of the transcript he further testified that, while he was employed as
yardmaster up to the date of this accident, he had ordered repairs to be made of defective
switch stands in the yards at Winnemucca whenever the occasion required it, and that he did
this quite often; that the yardmasters who were generally employed in the yards up to the date
of this accident other than himself also ordered repairs to be made; that the directions to make
the repairs would be given by the yardmaster to representatives of the department that made
the repairs on track equipment, the section foreman in charge at Winnemucca.
Q. State whether or not, when orders were given by the yardmaster to make these repairs
that you have testified to, if the repairs were made. A. There certainly was no question in
regard to that.
Mr. Dwyer also testified that, when the yardmaster employed men or discharged men,
reports were made direct to the superintendent of their action in that regard, and that the
action of the yardmaster in employing and discharging men was invariably sustained,
provided their personal records went through and proved to be all right; that when the
yardmaster employed men they would continue in their employment after the superintendent
was notified just the same as though the men were employed at the superintendent's office.
Mr. Dwyer further testified that Mr. Kitto, the station agent and trainmaster at Winnemucca,
at and prior to the time of this accident, had the right to employ and discharge men, and also
that he ordered repairs to be made where defects were found in the yards during that period of
time, and that when repairs were ordered to be made by him, they were made without
question. Further Mr. Dwyer testified without objection from the defendant, and on
cross-examination of defendant's counsel, that he had the authority and right to discharge the
section foreman in the yards at Winnemucca.
Mr. Riley, who was the section foreman at Winnemucca at the time of this accident and
for many years prior thereto, testified as follows:
Q. You were not under the control of Mr. Kitto? A. No, sir.
Q. The trainmaster or agent? A. Not exactly; no, sir.
Q. You were under his control to this extent: If he directed you to make repairs to switch
stands, you would have to do it? A. Exactly, if it was out of fix.
Q. And if the yardmaster directed you to make repairs to a switch stand, you would have to
do it? A. Yes, sir.
Q. And it was your duty to do it? A. Yes, sir; if he reported it to me, of course I would.
This testimony was introduced without any objection from the defendant.
Mr. Thomas Fitzgerald, who at the time of the accident was the resident engineer and
assistant superintendent of the Southern Pacific Company over the division from Wadsworth,
Nevada, to Ogden, Utah, and who resided at that time at Ogden, Utah, testified as follows:
Q. Then will you state whether or not it would be the duty of the yardmaster to order
repairs made in the yards at Winnemucca, particularly such as a defective switch stand? A. It
might be his duty to report it.
Q. To whom? A. To the section foreman.
On cross-examination Mr. Fitzgerald further testified as follows:
Q. And now, then, as assistant superintendent, you performed the duties of the
superintendent? A. Yes, sir.
Q. And if the switchman had any complaint to make, he should make it to the yardmaster,
and then the yardmaster would sent it to you? A. No, sir; the yardmaster didn't deal direct
with me, not while there was a trainmaster there, as he was at the head of it.
Q. Doesn't your rules prescribe that the yardmaster is under the direction of the
superintendent? A. He is under the direction of the superintendent.
Q. And should make reports to him? A. In this case he made it through the trainmaster.
Q. Is there any rule, or have you any rule, where the yardmaster should make reports to the
trainmaster? A. The trainmaster, the trainmaster of Winnemucca, was appointed; he was
appointed there to take charge of the yards and station, and the yardmaster should report to
him direct.
Q. Well, it was the custom in that yard if the switchman had to make any complaint, he
would make it to the yardmaster, his immediate superior, would he not? A. Yes, sir; to the
yardmaster or to the trainmastereither.
Q. Who was Mr. Kitto? A. Mr. Kitto was the trainmaster.
Q. And the station agent? A. Yes, sir.
Q. Did he have control over Mr. Riley? A. No, sir.
Q. Could he not order and direct him to do anything? A. He could not direct him in his
general work. If there was something wrong, he could tell him to go and fix it.
Q. It would be the duty of Riley to do it? A. Yes, sir.
Q. And so in that case Mr. Kitto, as the trainmaster and agent, could direct and order the
section foreman to make repairs? A. Yes, sir.
Mr. Fitzgerald further testified that there were a great many repairs that could be done in
the yards at Winnemucca, and not be reported to himself as resident engineer or assistant
superintendent, or to the trainmaster; that such was customary in those yards in the year 1903,
and, further, that Mr. Kitto had the right to employ and discharge men. He further testified as
follows:
Q. And Mr. Kitto had a right to order repairs to be made? A. Yes, sir.
Q. And he had that authority in the year 1903? A. Yes, sir.
On the question whether it was the yardmaster's duty to order repairs to be made he further
testified as follows:
Q. It would be his duty to order repairs to be made if it was necessary for the security of
those yards? A. It was his duty to report it.
Q. To whom? A. The section foreman.
Q. And upon that report the repairs would be made? A. Yes, sir.
Mr. Fitzgerald also testified that if the yardmaster should report a defect to the section
foreman, and request him to remedy it, and the section foreman should refuse so to do, it
would then be the duty of the yardmaster to report it to the superintendent, whereupon the
section foreman, refusing to do his duty, would be discharged or disciplined.
his duty, would be discharged or disciplined. And further on page 433, as follows: Q. Is it
not customary, and is it not the duty in those yards, for an inferior to report to their immediate
superiors? A. Yes, sir.
In the case of Swift v. O'Neill, the Supreme Court of Illinois, speaking on this question,
said: Manifestly, in a case of this kind, the defendant being a corporation, and acting only
through agents, there must be found somewhere among its employees persons who so far
represented it that notice to them, and their promises, will be binding on the master. And
while we are not prepared to say the evidence is entirely satisfactory to that effect, yet we do
not think that it so far tended to prove that the superintendent occupied such a position, and
that he was notified of the plaintiff's complaint, and promised to furnish additional lights, as
that the question was properly submitted to the jury. (187 Ill. 337, 343; 58 N. E. 416, 417.)
In the case of Homestake Mining Co. v. Fullerton, 69 Fed. 923, 928, 929, 16 C. C. A. 545,
550, 551, the contention was made that a promise, given by the foreman of the mine, to have
repairs made was insufficient, for the reason that the evidence did not establish authority in
such foreman to promise repairs. The court, speaking through Circuit Judge Thayer, answered
this contention as follows: We apprehend that if it was fairly within the scope of Treweek's
authority, as foreman, to cause a board covering to be placed over the coupling of the line
shaft, then a promise made by him to a subordinate servant to cover the coupling, in response
to a complaint that it was dangerous, must be given the same effect as a like promise made by
the defendant itself. And it must be conceded that a like promise made by the defendant
would serve to rebut the presumption that the plaintiff intended to assume the risk which he
had pointed out. The question is not whether Treweek was a vice-principal in such sense that
the defendant would be liable to its employees for all of his negligent acts, but whether his
functions were such that he had the right, in the discharge of his duties and in the exercise of
his judgment and discretion, to cause the shaft coupling to be covered. If he had such right,
then we think that the plaintiff could properly address his complaint to Treweek, and rely on
the latter's promise to remedy the existing defect without preferring his claim to, or
seeking a promise from, any one higher in authority."
Treweek, and rely on the latter's promise to remedy the existing defect without preferring his
claim to, or seeking a promise from, any one higher in authority.
And, continuing, Judge Thayer further said: It was an act which did not require a previous
conference either with the general superintendent or the master mechanic, because it did not
involve any alteration of the machinery, or interfere to any extent with its operation. When
the defendant company appointed Treweek as its foreman, it no doubt intended that he should
exercise his judgment and discretion with respect to the propriety of placing a covering over
the exposed parts of the machinery, of which complaint was made to him that they
endangered the safety of those employees who frequently had occasion to pass in close
proximity to the same. Unless he had such authority in his capacity as foreman, he would be
powerless to guard the company's interest as it is doubtless expected that they would be
guarded. At all events, we entertain no doubt that it was within the apparent scope of
Treweek's authority to hear complaints touching such a defect as was pointed out by the
plaintiff, and that it was also within the apparent scope of his authority to promise that it
would be remedied.
In the case of Ray v. Diamond State Steel Co., 2 Pennewill (Del.) 525, 528, 47 Atl. 1017,
1018, the court held that: Notice of defects given to the foreman having charge of that
particular work and department is notice to the company, and a promise to remedy the defect,
made by such foreman, is a promise of the company in law.
In the case of Chapman v. S. P. Co., 12 Utah, 40-41, 41 Pac. 551, 555, where the same
question was involved, the court stated: In other words, whoever represented the defendant
there on the ground at that time, if notice was given to such person of such defect, that would
be notice to the defendant; and if a promise to repair it was made by that person, that would
be the promise of the defendant, within the meaning of the instruction I have already given
you. In the absence of Whalen, McComie represented the defendant, and his negligence in the
construction of the platform would be the negligence of the principal. (Andreson v. Depot
Co., S Utah, 12S, 30 Pac.
8 Utah, 128, 30 Pac. 305; Reddon v. Railway Co., 5 Utah, 344, 15 Pac. 262; Ryan v. Bagaley,
50 Mich. 179, 15 N. W. 72, 45 Am. Rep. 35; Railroad Co. v. Stevens, 20 Ohio, 415; Railroad
Co. v. Babcock, 154 U. S. 198, 14 Sup. Ct. 978, 38 L. Ed. 958; Malone v. Hathaway, 64 N.
Y. 5, 21 Am. Rep. 573.)
We believe it to be a question of fact for the jury to determine in the light of all the
evidence whether or not the yardmaster and trainmaster had authority to make such a promise
as would bind the defendant, and whether or not notice of the complained-of defect was made
to them, and, if so made, they promised to have the same repaired. We believe the testimony
unquestionably sufficient to sustain the verdict of the jury that the yardmaster and trainmaster
had authority to cause defective switch stands to be repaired, and that in being notified and
promising, but failing, to have the same repaired, they rendered the defendant liable for such
damages as could be legally proven to have arisen by reason of this neglect. We do not
believe that the court erred in permitting evidence to be introduced showing that the
yardmaster had authority to hire and discharge employees.
Judge De Haven very tersely, and we believe correctly, states the law in the case of In re
Calif. Nav. & Imp. Co., 110 Fed. 673, upon Master and Servant as follows: A master
employing a servant impliedly engages with him that the place in which he is to work, and the
tools or machinery with which he is to be surrounded, shall be reasonably safe. (Railroad Co.
v. Baugh, 149 U. S. 368, 386, 13 Sup. Ct. 914, 921, 37 L. Ed. 772, 780.) * * * The master
cannot escape from the obligation of his positive duty by the delegation of its performance to
an agent or servant employed by him. * * * That such is the law upon this point is well
settled. (Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Fuller v. Jewett, 80 N. Y. 46,
36 Am. Rep. 575; Ford v. Railroad Co., 110 Mass. 240, 14 Am. Rep. 598.)
This court in the case of Taylor v. N. C. O. R. R. Co., properly laid down the following
rule: The general rule applicable to cases of this character, established by the great weight of
authority, is that if the servant, noting a defect in the machinery, complains to the master of
such defect, who promises that such defect shall be remedied, the servant may, in reliance
upon the promise, continue in the service for a reasonable time thereafter without
thereby assuming the risk, provided the danger is not of so imminent and immediate a
character that a person of ordinary prudence would refuse to continue in the service."
ises that such defect shall be remedied, the servant may, in reliance upon the promise,
continue in the service for a reasonable time thereafter without thereby assuming the risk,
provided the danger is not of so imminent and immediate a character that a person of ordinary
prudence would refuse to continue in the service. (26 Nev. 415, 427.)
The transcript discloses sufficient testimony to have warranted the jury in finding that the
defendant authorized the yardmaster and trainmaster to employ men and make repairs such as
fixing defective switch stands in the yard, and this authority naturally carried with it the right
to promise, on behalf of the defendant, to repair defective machinery for those whom they
employed, and it necessarily therefore follows that Burch, having been employed by those in
authority to employ men for the defendant, and they having been notified as the authorized
representatives of the defendant of the defective switch stand, and having authority to repair
it, and promising to do so, but neglecting it, and plaintiff, relying on that promise, continuing
to work for the defendant, it became the duty of the defendant to have remedied the defective
switch stand, and by reason of its neglect in not so doing, it is responsible in damages to the
injured employee. (Dells Lbr. Co. v. Erickson, 80 Fed. 257, 25 C. C. A. 397; Chicago
Housewrecking Co. v. Birney, 117 Fed. 72, 54 C. C. A. 458; Barney Dumping Boat Co. v.
Clark, 112 Fed. 921, 50 C. C. A. 616; Cunard Steamship Co. v. Carey, 119 U. S. 245, 7 Sup.
Ct. 1360, 30 L. Ed. 354; Lyttle v. Railway, 84 Mich. 289, 47 N. W. 571, 573; Eureka Co. v.
Bass, 81 Ala. 200, 8 South. 216, 218; Boyd v. Blumenthal, 3 Pennewill, 564, 52 Atl. 330;
Simone v. Kirk, 173 N. Y. 7, 65 N. E. 739; Vogel v. Bridge Co., 88 App. Div. 68, 84 N. Y.
Supp. 799; Hair Co. v. Mueller, 203 Ill. 558, 68 N. E. 51, 52; Jernigan v. Ice Co., 33 Tex.
Civ. App. 501, 77 S. W. 260; Aetna Indem. Co. v. Ladd, 135 Fed. 637, 68 C. C. A. 274;
Stephens v. Railway, 86 Mo. 221; St. Louis Railway Co. v. Holman, 53 Ill. App. 617; Kane v.
Railway Co., 128 U. S. 91, 9 Sup. Ct. 16, 32 L. Ed. 339.)
6. The appellant assigns as further error that the court erred in refusing to give to the jury
defendant's Instruction No. 4, which reads as follows: If you believe that the plaintiff
attempted to jump onto the forward end of the caboose coming towards him while going
at a rapid speed, and that the same was forbidden by the rules of the company and that
plaintiff knew of that rule, then you must find for the defendant."
tiff attempted to jump onto the forward end of the caboose coming towards him while going
at a rapid speed, and that the same was forbidden by the rules of the company and that
plaintiff knew of that rule, then you must find for the defendant.
The following instruction given by the court, in view of the evidence in the case, we
believe, relieves the court from any error in refusing to give the instruction requested: If you
believe that plaintiff attempted to jump on the forward steps of the caboose coming towards
him, while going at a speed of about eight miles an hour, and that such act was forbidden by
the rules of the company, because of its being too high a rate of speed to allow a switchman
to board an approaching caboose, and that the plaintiff knew, or working in the capacity of a
switchman it was his duty to know, of that rule, and you also believe from a preponderance of
the evidence that the said rule was generally observed by the switchmen employees of the
defendant corporation, and was generally enforced by the officers in authority for said
corporation, then you should find for the defendant.
Instruction No. 14 given by the court also relieves the refusal of the court to have given the
instruction proposed, as the instruction as given and this instruction fully covers the law in
accordance with the issues raised by the pleadings and evidence in the record.
Defendant introduced in evidence the following rule which it maintained and claims
relieved it from liability in the present case:
Every employee is required to exercise the utmost precaution to avoid injury to himself or
to others, especially in the switching or other movement of trains.
Employees are warned not to attempt to get on the front or rear of an engine, or on the
end of a car as it approaches them, or to jump on or off trains and engines in rapid motion, or
to go between cars in motion to uncouple them. These and all similar imprudent acts are
forbidden.
The evidence in this case discloses that it was the custom and practice for switchmen and
other employees to mount running cars at the place of the accident, at the time, and for years
prior to the time of, the accident. Mr. Dwyer, who was yardmaster and had full charge of
the yard at Winnemucca, so testified, and also testified that it had been frequently done
in the presence of the superintendent, assistant superintendent, and the trainmaster.
years prior to the time of, the accident. Mr. Dwyer, who was yardmaster and had full charge
of the yard at Winnemucca, so testified, and also testified that it had been frequently done in
the presence of the superintendent, assistant superintendent, and the trainmaster. So also did
defendant's witnesses Williams and McDermott testify such to be the custom and practice.
The assistant superintendent and trainmaster referred to by Mr. Dwyer were called and
testified, but neither denied the custom or the testimony of Mr. Dwyer. Mr. McDermott,
defendant's witness, testified to this custom. So also did defendant's witness Williams. It was
not error for the court to have permitted evidence tending to show that this rule was
commonly violated and not enforced, and that those in authority for the railroad acquiesced
by their nonenforcement of the rule in commonly and notoriously allowing it to be violated,
without any action on their part to enforce its provisions. Defendant, therefore, in the present
case, was not in position to shield itself of any liability by pleading this rule. (Hunn v.
Railway, 78 Mich. 513, 44 N. W. 505, 7 L. R. A. 500; White v. Railway, 72 Miss. 12, 16
South. 249; Lowe v. Railway, 89 Iowa, 420, 56 N. W. 521; Horan v. Railway, 89 Iowa, 328,
56 N. W. 508; Strong v. Railway, 94 Iowa, 380, 62 N. W. 801; Barry v. Railway, 98 Mo. 62,
11 S. W. 309, 14 Am. St. Rep. 610; Railroad Co. v. Nickels, 1 C. C. A. 625, 50 Fed. 718;
Railway v. Springsteen, 41 Kan. 724, 21 Pac. 776; Prather v. Railway, 80 Ga. 427, 9 S. E.
530, 12 Am. St. Rep. 263; Hissong v. Railway, 91 Ala. 514, 8 South. 777; Bonner v. Bean,
80 Tex. 152, 15 S. W. 799; Flanders v. Chicago Co., 51 Minn. 193, 53 N. W. 544; Lawson v.
Truesdale, 60 Minn. 410, 62 N. W. 546; Wright v. So. Pac. Ry. Co., 14 Utah, 383, 46 Pac.
374; Lowe v. Railway, 89 Iowa, 420, 56 N. W. 520.)
In the case of Francis v. Kansas City Ry. Co., 127 Mo. 675, 26 S. W. 846, 847, the court
said: There was no error in permitting plaintiff to prove that it was a common custom and
thing for the switchmen and other employees, after the promulgation of the special order of
May 12, 1887, to get on the footboard of the engine from the front, when it was in motion;
that it was done with the actual knowledge of Smith, the yardmaster, and Cummings, the
foreman of the roundhouse, and there was evidence that the office of the trainmaster,
Jeffries, was in the yards where the men worked, and that he was required by his position
often to be in these yards, and was there, and that the men were never reprimanded for
breaking the rule.
and there was evidence that the office of the trainmaster, Jeffries, was in the yards where the
men worked, and that he was required by his position often to be in these yards, and was
there, and that the men were never reprimanded for breaking the rule. This evidence tended to
prove that the rule was habitually violated with the knowledge of the officers of the
defendant. It was competent and relevant to show that the rule was not in force, nor is there
any merit in the objections to the evidence, tending to show Preston's general incompetency
as an engineer, and his ignorance of signals and general incapacity. (See 127 Mo. 658, 30 S.
W. 130.)
We cannot say, in view of the evidence and the instruction as given by the court in this
case, that because Burch violated this rule, which was commonly not lived up to, and which
was not enforced by the defendant or its officers whose duty it was to see that it was enforced,
and who knew that it was being commonly violated, the plaintiff was guilty of such
contributory negligence as would preclude him from recovering. Undoubtedly the comments
of the court when the rule was first introduced in evidence were improper remarks, but in
view of the fact that the rules were afterwards admitted in evidence, and the following
statement made by the court to the jury upon his remarks formerly made, we believe his
remarks do not amount to reversible error:
The CourtGentlemen of the jury, this is the rule that the court yesterday refused to admit
in evidence, and in ruling upon it the court passed some remarks concerning it. I wish you,
gentlemen of the jury, to absolutely disregard the remarks of the court yesterday about this
rule. It is admitted this morning without objection on the part of the defendant as evidence in
this case. The objection will be overruled to the question. Witness, answer the question.
Viewing the evidence and instructions as we do, the other objections of defendant under
this assignment of error, if error at all, would be harmless.
7. Appellant assigns as error that the court erred in refusing the following instructions:
The jury are instructed that if they believe from the evidence that plaintiff attempted to board
one of the defendant's cabooses on October 26, 1903, and missed his handhold on said
caboose, or his footing upon the step of said caboose, and by reason thereof fell, or was
dragged alongside of the track and thereafter fell or struck against the switch stand or
target in question, your verdict should be for the defendant."
and missed his handhold on said caboose, or his footing upon the step of said caboose, and by
reason thereof fell, or was dragged alongside of the track and thereafter fell or struck against
the switch stand or target in question, your verdict should be for the defendant.
The court modified this instruction complained of, giving the following instruction, which,
in view of the pleadings and the evidence, we believe was proper, and that the court did right
in refusing the instruction complained of: The jury are instructed that if they believe from
the evidence that the plaintiff attempted to board one of the defendant's cabooses on October
26, 1903, and missed his handhold on said caboose, or his footing upon the step of said
caboose, and by reason thereof fell, or was dragged alongside of the track, and thereafter fell,
and such fall resulted in his injury, for which he now brings this suit, your verdict should be
for the defendant.
If the instruction complained of had been given as offered by appellant, it would have been
practically an instruction for the jury to return a verdict for the defendant. The complaint
alleged that the plaintiff struck against the switch stand in question, the answer denied it, and
the jury found in favor of the plaintiff.
Counsel for respondent we believe very clearly show the fallacy of this instruction offered
by the appellant in their reply brief, wherein they segregate the instruction refused and
complained of, as follows: The jury are instructed that if they believe from the evidence that
plaintiff attempted to board one of the defendant's cabooses on October 26, 1903, and (1)
missed his handhold on said caboose; (2) or his footing upon the step of said caboose and by
reason thereof fell; (3) or was dragged alongside of the tracks and thereafter fell; (4) or struck
against the switch stand or target in questionyour verdict should be for the defendant.
Now, if we leave out the clauses 1, 2, and 3, we have a request to instruct the jury in this
language: The jury are instructed that if they believe from the evidence that plaintiff
attempted to board one of the defendant's cabooses on October 26, 1903, and * * * struck
against the switch stand or target in question, your verdict should be for the defendant.
This court has repeatedly held that it is not error for a court to refuse to give an instruction
which is in part wrong, and may so modify the instruction as to conform to the pleadings.
(State v. Anderson, 4 Nev. 265; Beaver v. Taylor, 93 U. S. 54; 23 L. Ed. 797; Thompson v.
Powning, 15 Nev. 195.)
The court, however, in Instructions Nos. 5, 6, 7, 8, and 10 sufficiently covered the law and the
evidence to protect the defendant's interests. Where the court properly covers the substance of
instructions which are asked by counsel but refused, it is not error to refuse to give
instructions in the language of counsel, which have already been covered in other instructions
given. (State v. Buralli, 27 Nev. 54; State v. Ferguson, 9 Nev. 106; U. P. R. Co. v. Jarvi, 53
Fed. 71, 3 C. C. A. 433; State v. Johnny, 29 Nev. 204.)
8. Appellant assigns as error that the evidence is insufficient to justify the verdict, and the
verdict is against law. The defendant moved the lower court for a new trial in this case, upon
the grounds, first, insufficiency of evidence to justify the verdict; second, the verdict is
against law. The statute of this state (Stats. 1907, p. 360, c. 164) provides that: In such case,
where it appears that the evidence taken altogether, does not support the verdict, or decision,
or judgment, or decree of the court, a new trial shall be granted, or, upon appeal, the case
shall be reversed without regard to whether there are express findings upon all the issues, or
whether the specifications particularly point out the finding or findings, either express or
implied, that are not supported by the evidence or are contrary thereto. Our examination of
the record in this case shows that there is substantial evidence to support the verdict of the
jury, and we cannot say that there is such a clear preponderance of evidence in favor of the
issues of fact as contended by the appellant, and therefore do not feel warranted in setting
aside the verdict in this case. Where there is a conflict of evidence on certain points, juries,
having the opportunity to observe the demeanor and character of witnesses while testifying,
are in nearly all cases better judges of fact than are courts or judges, and their verdict should
not be disturbed unless there is a clear preponderance of evidence, or the trial court can say
that the jury were swayed by improper motives from rendering a just verdict upon the
evidence adduced at the trial.
were swayed by improper motives from rendering a just verdict upon the evidence adduced at
the trial.
As we previously observed elsewhere in this opinion, we believe that the evidence at the
present trial was much stronger for the plaintiff's case than in the trial which took place before
Judge Hawley, wherein a verdict for $18,000 was rendered in favor of the plaintiff. A motion
for a new trial was made before Judge Hawley upon the same grounds as now urged in this
assignment of error, and, in passing upon the question in denying the motion, Judge Hawley
said: Can it judicially be said that there was a clear preponderance of evidence' against the
verdict? The court instructed the jury that it devolves upon the plaintiff in making out his
case to establish by a preponderance of evidence all of the essential affirmative allegations in
his complaint which are denied in the answer.' Again, You are the sole judges of the
credibility and weight that is to be given to the different witnesses who have testified upon
this trial,' and further instructed the jury as to the methods they should use in judging the
credibility of the respective witnesses in this case, there being a conflict upon some points.'
The testimony of the plaintiff was clear, direct, and positive upon all the material points in the
case. There was nothing in his manner, conduct, or appearance to reflect upon his credit. It
may be admitted, as is claimed, that this could not be said of all the witnesses who testified in
his favor. The jury might, under the instructions, have disbelieved, and for that reason have
discarded, some of their statements, but this is a matter solely within the province of the jury.
The preponderance of the evidence does not depend upon the number of witnesses. This is
not the governing question. The truth is there was a direct conflict upon the controlling point
as to whether the plaintiff gave notice to an agent of the defendant of the defective switch
stand, who was authorized, or whose duty it was, to see that the repairs were made. There was
ample evidence to sustain the verdict. In such cases the courts would not, in my opinion, be
justified in granting a new trial upon the ground stated. (Burch v. S. P. R. R., 145 Fed. 144.)
In Watt v. N. C. R. R. Co., 23 Nev. 171, 172 (62 Am. St.
Rep. 772), this court says: Where there is a substantial conflict in the testimony, the
appellate court should undoubtedly not substitute its judgment for that of the trial court, and
should only interfere where, upon all the evidence, it is clear that a wrong conclusion has
been reached. (Murphy v. S. P. R. R., 31 Nev. 120; Sacramento and Meredith M. Co. v.
Showers, 6 Nev. 296; Solen v. V. & T. R. R. Co., 13 Nev. 106; Scott v. Haines, 4 Nev. 426;
Barnes v. Sabron, 10 Nev. 217, 236; Winter v. Fulstone, 20 Nev. 260, 266; Devencenzi v.
Cassinelli, 28 Nev. 222; Myers v. Railroad Co., 95 Fed. 406, 414, 37 C. C. A. 137; People v.
Garbutt, 17 Mich. 9, 97 Am. Dec. 162.)
9. Appellant assigns as further error that the evidence shows that any risk arising from the
defective switch stand was assumed by plaintiff. The rulings we have already made on
questions of fact and law which bear upon this point, together with the requested instruction
of the defendant, numbered 11, wherein the court instructed the jury properly upon the law
regarding the liability of the defendant, providing that if the jury believed from the evidence
that the defendant was notified of the defective switch stand, and promised to repair the same
and did not, etc., make it manifest that there is no error in this assignment. (Taylor v. N. C. O.
R. R. Co., 26 Nev. 415; Ry. Co. v. Moseley, 56 Fed. 1010, 6 C. C. A. 225; Walton v. Railway
Company, 56 Fed. 1008, 6 C. C. A. 223.)
10. Appellant assigns as error that the court erred in denying defendant's motion for
judgment of nonsuit. One of the grounds for the nonsuit was that the evidence showed that
whatever injury plaintiff sustained while attempting to board, or in boarding, any of
defendant's cabooses was caused by his own negligence and fault, and that his own
negligence and fault were contributory to the accident and said injuries, and that the
proximate cause of plaintiff's injuries was the result of his own negligence and lack of proper
care. The motion was denied, to which defendant excepted upon the grounds: First, the
evidence failed to show that plaintiff had notified the proper officials of the defendant of any
defect in the switch stand, and that therefore he assumed the risk arising therefrom; second,
that the evidence shows, without conflict, that plaintiff was guilty of contributory negligence
in attempting to board the moving caboose at the time, and in the place, and in the
manner that he did.
ing to board the moving caboose at the time, and in the place, and in the manner that he did.
The rule has been well established in this and other courts that in considering the granting or
refusing of a motion for nonsuit the court must take as proven every fact which the plaintiff's
evidence tended to prove, and which was essential to his recovery, and every inference of fact
that can be legitimately drawn therefrom, and give the plaintiff the benefit of all legal
presumptions arising from the evidence, and interpret the evidence most strongly against the
defendant. (Fox v. Meyers, 29 Nev. 183; Patchen v. Keeley, 19 Nev. 409; Hanley v. Calif.
Bdg. Co., 127 Cal. 237, 59 Pac. 577, 47 L. R. A. 597; Lowe v. Salt Lake City, 13 Utah, 91, 44
Pac. 1050, 57 Am. St. Rep. 708; Brown v. Warren, 16 Nev. 228; Railway Co. v. Lowery, 74
Fed. 363, 20 C. C. A. 596; Ins. Co. v. Rhea, 123 Fed. 9, 60 C. C. A. 103.)
The rule has been well established that a case should not be withdrawn from the jury when
reasonable men might fairly differ on questions of fact as to whether or not a plaintiff was
guilty of such negligence as to constitute contributory negligence, and the conclusion that
follows as a matter of law, unless the testimony is so conclusive as to compel the court to set
aside a contrary verdict. (Solen v. Railway Co., 13 Nev. 127; Linden v. Anchor Co., 20 Utah,
134, 58 Pac. 358; C. & N. W. R. Co. v. De Clow, 124 Fed. 142, 61 C. C. A. 34; Texas Ry. Co.
v. Cox, 145 U. S. 606, 12 Sup. Ct. 905, 36 L. Ed. 829; Phoenix Assur. Co. v. Lucker, 77 Fed.
243, 23 C. C. A. 139; Phoenix Mut. Life Ins. Co. v. Doster, 106 U. S. 32, 1 Sup. Ct. 18, 27 L.
Ed. 65; Conn. Ins. Co. v. Lathrop, 111 U. S. 615, 4 Sup. Ct. 533, 28 L. Ed. 536; Gunther v.
Livermore Assur. Co., 134 U. S. 116, 10 Sup. Ct. 448, 33 L. Ed. 857; Haines v. McLaughlin,
135 U. S. 598, 10 Sup. Ct. 876, 34 L. Ed. 290.) In considering this assignment it is worthy to
note that in passing upon this same question both Judge Marshall and Judge Hawley, in two
previous trials to this, considered the evidence and issues sufficient to submit to the jury. In
the light of this rule, and the opinion we entertain and have expressed on the other
assignments of error herein considered, we are of the opinion that the trial court did not err in
denying the motion of nonsuit interposed by the defendant.
err in denying the motion of nonsuit interposed by the defendant.
11. Appellant's last assignment of error that the court erred in submitting to the jury the
question as to whether or not the plaintiff had complained to the proper person about the
defective switch stand we have already passed upon adverse to appellant's contention in
considering the former assignments of error herein.
After a most careful examination of the record presented in this case, and authorities cited
in the able arguments and briefs of both counsel for appellant and respondent, in view of the
foregoing reasons assigned, we are of the opinion that the judgment and order of the lower
court denying appellant's motion for a new trial should be affirmed.
It is so ordered.
____________
32 Nev. 136, 136 (1909) Ex Parte Woodburn
[No. 1856]
Ex Parte WOODBURN
1. Constitutional LawEncroachment on Judiciary.
The act of March 13, 1909 (Stats. 1909, p. 98, c. 96), providing for greater credits to prisoners for good
behavior than were authorized by prior acts, is void so far as it attempts to commute any part of a sentence
imposed prior to its passage, because it interferes with the functions of the judiciary.
2. CourtsRules of Decision.
Courts are only justified in overruling former decisions where the same are deemed to be clearly
erroneous.
Application by W. Woodburn, in behalf of Edward Hall, for a writ of habeas corpus for
the discharge of Edward Hall from imprisonment. Denied.
William Woodburn, for Petitioner.
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for
Respondent.
By the Court, Norcross, C. J.:
The said Edward Hall, upon whose behalf the petition was filed, is held in confinement in
the state prison under a commitment, issued on the 4th day of May, 1907, ordering him to be
imprisoned for the term of three years. He claims that he is entitled to be discharged from
confinement under the provisions of an act of the legislature entitled An act to provide for
the government of the state prison of the State of Nevada and repealing other acts, so far as
they conflict with the provisions of this act, approved March 13, 1909 (Stats. 1909, p. 98, c.
96.)
It is conceded that by reason of the good conduct of the said Hall he is entitled to be
discharged, providing the said act of 1909 is applicable to his case. By the provisions of the
last-mentioned act a prisoner serving a three-year sentence is entitled to eight months' credits
for good behavior, while under the act in force at the time the prisoner was committed he
would only be entitled to seven months' credits. The precise question here involved came
before this court in the case of Ex Parte Darling, 16 Nev. 98, 40 Am. Rep. 495. In that case it
was held that the legislature was without power to pass an act which, in effect, would
commute any portion of the sentence imposed by the court prior to the time the act took
effect, for the reason that the same interfered with the functions of the judiciary, and
hence was violative of the constitution.
32 Nev. 136, 137 (1909) Ex Parte Woodburn
it was held that the legislature was without power to pass an act which, in effect, would
commute any portion of the sentence imposed by the court prior to the time the act took
effect, for the reason that the same interfered with the functions of the judiciary, and hence
was violative of the constitution.
To hold with petitioner's contention in this case, we would be compelled to overrule the
decision of this court by Hawley, J., in the Darling case, supra. Courts are only justified in
overruling former decisions where the same are deemed to be clearly erroneous. Our attention
has not been called to the decision of any court taking a contrary view to that heretofore
expressed by this court in the Darling case, and we see no sufficient reason for reversing the
former decision of this court upon the question here involved.
The prayer of the petitioner is denied.
____________
32 Nev. 138, 138 (1909) State v. Simpson
[No. 1835]
STATE OF NEVADA, Respondent, v. J. W. SIMPSON,
Appellant.
1. BurglaryStatutory OffensesElements.
The offense of housebreaking under the statute (Comp. Laws, 4713), making every person who in the day
time shall enter a dwelling-house, with intent to steal, guilty of housebreaking, is complete when the house
is entered with the specific intent to steal, and the actual stealing or attempt to steal property therein is but
evidence of such intent, and the allegation in the indictment of ownership of the property in the house is
mere surplusage.
2. Criminal LawErroneous Admission of EvidenceHarmless Error.
Where, on a trial for housebreaking, accused, in explaining his flight from the immediate vicinity of the
house, after the breaking and entry thereof had been discovered, testified that he ran away because he had a
dirk knife in his possession, and that he was afraid if arrested that he would be in danger of conviction for
carrying a concealed weapon, the error, if any, in admitting the dirk knife in evidence, was not prejudicial.
Esmeralda County; Peter J. Somers, Judge.
J. W. Simpson was convicted of housebreaking, and he appeals. Affirmed.
Clarence C. Ward, for Appellant:
I. The court erred in admitting over defendant's objection and exception, incompetent,
irrelevant and immaterial evidence, which evidence, so admitted, was prejudicial to the rights
of the defendant. Under this heading we refer particularly to testimony admitted in reference
to property found upon the defendant at the time he was searched by the jailer, after being
brought to the county jail at Goldfield, for incarceration. It not being shown that the property
testified to as having been found on the defendant at the time mentioned was in any way
connected with the alleged crime, or the perpetration thereof, it was wholly irrelevant, and
such testimony had no place in the trial of the cause. A fact is relevant to a fact in issue if it
logically tends in any degree to show the existence or nonexistence of that fact. (Clark Crim.
Proc.
503.) A wound having been inflicted with a knife or dagger, the fact of defendant having in
his possession, either proximately before or proximately after the commission of the alleged
assault, an instrument capable of inflicting the wound suffered in the assault, would be
material, as a circumstance, requiring explanation.
II. In the case at bar, the possession of a knife or dagger was not essential to the
commission of the crime charged in the indictment; nor was it alleged, or proved, that a
dagger or knife was in any way used in the commission of the crime alleged; hence the fact
that the defendant had a knife in his possession at the time the crime is alleged to have been
perpetrated, is a wholly irrelevant and immaterial fact. And the admission of proof to that
effect was wholly improper, and could serve no legitimate purpose in this trial; but, on the
contrary, was calculated to wrongfully excite and prejudice the jury against the defendant.
III. We recognize the fact that the crime sought to be charged in the indictment might have
been completely alleged, under the statute, as well as under the rules of the common law,
without having charged that the intent was to steal the property of John Doyle, or of any other
person; but we insist that the state, having chosen thus to particularize, and to specially allege
that the intent was to steal the property of John Doyle, situate and being therein, is held
strictly to its proof of that allegation; and any failure to complete this proof is failure to prove
an essential element of the crime charged, and fatal.
The general rule is: In indictments for offenses committed upon property, real or personal,
the name of the general or special owner must be accurately stated. (Clark Crim. Proc. 227.)
The allegation of ownership is essential to the charge, in indictments for offenses in relation
to personal property, and must be supported by the proof. (Id. 338.)
Corpus delictiTo establish the Corpus delicti all the circumstances proved must be
consistent with each other; consistent with the hypothesis that the accused is guilty, and at the
same time inconsistent with the hypothesis that he is innocent, and with every other rational
hypothesis except that of guilt. (12 Cyc.
Cyc. 488.) If the evidence is consistent with the theory of defendant's innocence, the verdict
of guilt ought to be set aside. (Block v. State, 112 Ga. 29; 12 Cyc. 489.)
IV. The verdict is the result of improper conduct on the part of the district attorney in his
address to the jury. District attorneys occupy the position of representatives of the people in
criminal prosecutions. It is no more their duty to try to convict an innocent man than it is to
defend the guilty. When a district attorney has duly presented all the evidence available to
him concerning the commission of a crime in his jurisdiction, or so much thereof as he may
deem necessary and proper to a due presentation of the case, and has summed up or discussed
that which has been produced on both sides, to the jury, he has properly discharged his duties.
When he goes outside the record in his argument, and either intentionally or unintentionally
injects elements or testimony into the case which have not properly been developed at the
trial, he exceeds his authority and violates the law. In this case the issue was, Did the
defendant enter the house described, with intent to steal the goods of John Doyle? There was
no direct testimony on the subject at all. The entire case was made up of circumstantial
evidence. Not a witness in the entire trial testified that the defendant herein was, on the 18th
day of July, 1908, or any other date, or ever, in the Doyle house. Not a witness testified that
any person, except Mrs. Doyle, was in that house on the date named in the indictment.
V. It is reversible error for the prosecuting attorney in his argument to the jury to assert
facts and circumstances as being in the case which are not shown by the evidence, or to
comment upon such facts, or to draw inferences from them unfavorable to the accused. (12
Cyc. 574, citing numerous cases.) Where the prosecution obtains a conviction by going
outside the record in argument to the jury, the verdict so obtained should be set aside. (State
v. Gutekunst, 24 Kan. 252; State v. Comstock, 20 Kan. 650.) In a criminal prosecution it is
irremediable error for the prosecuting attorney, in addressing the jury, to refer to matters
outside the evidence produced at the trial. (People v. Bower, 79 Cal. 415; People v. Treat, 77
Mich. 348; State v. Ulrich, 110 Mo. 350; Holder v. State, 58 Ark. 473; State v. Irwin, 9
Idaho, 35, citing with approval, 5S Ark. 473; Invey v. State, 113 Ga. 1062; Wilson v.
Territory, 9 Okla. 331; State v. Balch, 31 Kan.
State v. Irwin, 9 Idaho, 35, citing with approval, 58 Ark. 473; Invey v. State, 113 Ga. 1062;
Wilson v. Territory, 9 Okla. 331; State v. Balch, 31 Kan. 465.)
I. The principal point raised by appellant is that the intent as alleged in the indictment was
not proven. The indictment alleges that the defendant did enter the dwelling-house of John
Doyle with intent then and there in said dwelling-house to steal the goods and chattels of
said John Doyle, situate and being therein. The proof is ample that the house was the
dwelling-house of John Doyle, but appellant insists that it should have been proven that John
Doyle was the owner of goods and chattels situate therein. This was unnecessary. All that the
state needed to prove was that defendant, the appellant herein, entered said dwelling-house
with intent then and there in said dwelling-house to steal, and proof of this was sufficient to
sustain the indictment.
II. Where the conviction is for burglary only, and not for larceny the allegation of
ownership is surplusage, and a variance is immaterial. (6 Cyc. 230.) Assuming that proof of
ownership of the goods and chattels in the dwelling-house of John Doyle had to be
established in him, as alleged in the indictment, it was so established, in point of law, by
proving ownership in his wife. John Doyle was the bailee of the personal property of his wife
situate in said dwelling-house. But it is also settled that goods in the possession of a bailee
may be laid as his property. (State v. Wincroft, 76 N. C. 40.) Another point raised by
appellant is in regard to evidence admitted by the trial court that the defendant, the appellant
herein, at the time of his arrest, had in his possession a dagger or knife. This was properly
admitted for the purpose of showing intent. (12 Cyc. 394.)
III. The appellant has also raised the point of misconduct of the district attorney, and has
cut out certain portions of the address of the prosecuting officer which he considers error. We
do not attack the authorities cited by him, but we submit that they have no application to the
case now under consideration. The district attorney endeavored to be absolutely fair, and an
examination of his address to the jury and of the entire record in the case refutes the
contention of misconduct.
and an examination of his address to the jury and of the entire record in the case refutes the
contention of misconduct.
The appellant was convicted of the crime of housebreaking upon an indictment charging
that the said defendant on the 18th day of July, 1908, or thereabouts, at the County of
Esmeralda, did then and there in the daytime enter the dwelling-house of John Doyle, and
occupied by said John Doyle, with the intent then and there, and in said dwelling-house, to
steal the goods and chattels of the said John Doyle situate and being therein. From the
judgment of conviction and the order denying his motion for a new trial, the said Simpson
appeals.
There was proof showing, or tending to show, that the appellant herein entered the
dwelling-house occupied by the said John Doyle and his wife, and while therein opened the
trunk of the said Mrs. Doyle, and was engaged in going through the same when frightened
away by the return of Mrs. Doyle. It is contended by counsel for appellant that there is a fatal
variance between the allegation in the indictment and the proof, in that there was no evidence
that the defendant in any way disturbed any property belonging to the said John Doyle, and
hence no evidence of an intent to steal the property of the said John Doyle. The
attorney-general in his brief has cited authorities which he contends supports the position that,
even though it were necessary to establish ownership of property in the said John Doyle, the
fact that he was in the occupancy and control of the building was sufficient to make him in
law a bailee of all of the property situate therein, and that as such bailee he would be regarded
as having sufficient title to the property to support an allegation of ownership thereof for the
purposes of the indictment. In the case of Kidd v. State, 101 Ga. 528, 28 S. E. 990, the court
said: It is not essential that an indictment for burglary, which charges that the accused broke
and entered a house with intent to commit a larceny therein, should distinctly describe the
larceny in question. * * * In the present case it was alleged that the goods which the accused
intended to steal belonged to the prosecutor, and the proof showed that the title to the
same was in his wife.
prosecutor, and the proof showed that the title to the same was in his wife. We do not think
this constituted a variance between the allegata and the probata. It did appear that the goods
were in the possession of the husband and under his custody and control; and according to the
principle laid down in Goode v. State, 70 Ga. 752, this was sufficient to authorize the
allegation that the goods belonged to the prosecutor.
The statute under which the defendant was convicted provides: Every person who, in the
daytime, shall enter any dwelling-house, * * * with intent to steal, or to commit any felony
whatever therein, is guilty of housebreaking. * * * (Comp. Laws 4713.) It is unnecessary,
under this statute, to specifically allege ownership of property, and such allegation in the
indictment may be rejected as surplusage. The offense is complete when the house or other
building is entered with the specific intent designated in the statute. The actual stealing or
attempt to steal property therein is only evidentiary of the criminal intent. When it is
necessary to allege the ownership of goods, which it is alleged defendant intended to steal or
stole, the ownership must be proved as laid; but according to the better opinion, when such an
allegation is unnecessary, and the conviction is for burglary only, and not larceny, the
allegation of ownership is surplusage, and a variance is immaterial. (6 Cyc. 230; Harris v.
State, 61 Miss. 304; James v. State, 77 Miss. 370, 26 South. 929, 78 Am. St. Rep. 527; State
v. Tyrrell, 98 Mo. 357, 11 S. W. 734; State v. Hutchinson, 111 Mo. 257, 20 S. W. 34; Reg. v.
Clarke, 1 C. & K. 421, 47 E. C. L. 421.)
Appellant assigns error in the admission over objection of a dirk knife and sheath taken
from the defendant at the time of his arrest. Without determining the question whether the
knife was admissible as evidence upon the part of the state, as contended by the
attorney-general, it is sufficient answer to appellant's contention to state that the defendant at
the trial testified that he based his defense upon the dirk knife in question. As an explanation
of his flight, after the breaking and entering of the house had been discovered and himself
found in the immediate vicinity thereof and charged with the offense, he testified that the
reason he ran away was because he had this particular knife in his possession, and that he
was afraid, if arrested, he would be in danger of conviction for carrying a concealed
weapon, and that to avoid such possibility he ran from the scene of the crime, and
attempted to escape from his pursuers.
this particular knife in his possession, and that he was afraid, if arrested, he would be in
danger of conviction for carrying a concealed weapon, and that to avoid such possibility he
ran from the scene of the crime, and attempted to escape from his pursuers. Evidence upon
which the defendant testifies he bases his main defense could hardly be regarded as
prejudicial.
Counsel for appellant next assigns prejudicial error committed by the district attorney in
his concluding argument to the jury. We have heretofore in numerous cases, and especially in
the recent case of State v. Rodriquez, 31 Nev. 342, had occasion to comment upon the
limitations which should control prosecuting attorneys in their arguments before the jury. In
this case, however, after an examination of the alleged objectionable language used by the
district attorney, we are unable to find anything therein that could be considered
objectionable. We find no reference to facts not brought out in the evidence introduced upon
the trial nor the statement of conclusions which may not legitimately follow from the facts
disclosed by the evidence.
No error appearing in the record, the judgment and order of the trial court are affirmed.
____________
32 Nev. 145, 145 (1909) State v. Clark
[No. 1813]
THE STATE OF NEVADA, Respondent, v. C. CLARK,
Appellant.
1. EscapeIndictment.
Comp. Laws, sec. 4208, provides that an indictment is sufficient if it can be understood therefrom that it
is entitled in a proper court; that it was found by a grand jury of the proper district; that defendant is named
or described; that the offense was committed at some place within the court's jurisdiction, and at some time
prior to the time of finding the indictment; that the offense charged is clearly set forth in ordinary and
concise language, and stated with such certainty as to enable the court to pronounce judgment upon a
conviction. Section 4840 provides that every person lawfully confined in a county jail who shall escape or
attempt to escape shall be punished. Accused was indicted for the crime of attempting to escape from a
county jail, in that, while accused was lawfully confined in the jail of said county under an indictment for
burglary, he did wilfully, unlawfully, and feloniously attempt to break out of said county jail and in
pursuance of said attempt did wilfully, unlawfully, and feloniously break out of a cell in said county jail in
which he was confined, and assaulted and overpowered a jailer of said jail, contrary to the statute, etc.:
Held, that the indictment sufficiently alleged that the acts complained of were done with the intent to
escape, as the word feloniously means done with intent to commit a crime, and with a design on the
part of the accused to commit the felony with which he is charged, and the word attempt implies both an
intent and an endeavor to accomplish it, and that the indictment complies with the requirements of section
4208.
2. EscapeAdmissibility of Evidence.
In a prosecution for escape, evidence to establish the acts of accused in making the attempted escape as
charged in the indictment are admissible to prove his criminal intent, as the logical deduction is that a
person intended to do what he did.
3. Criminal LawEvidencePresumptionOfficial Duty.
Where no irregularities appear, it will be presumed that public officers do as the law and their duties
require them.
4. EscapeNature and Element of Offenses.
Where a person is confined in a jail under an indictment regularly brought against him for a crime and he
attempts to escape, he commits a crime, although the bench warrant under which he was arrested was
irregularly issued, but, when the imprisonment is unlawful, the right to liberty is absolute, and the one who
is confined is not guilty of the offense of escape by regaining it.
Appeal from the District Court of the First Judicial District of the State of Nevada,
Esmeralda County; F. P. Langan, Judge.
C. Clark was convicted of an attempt to escape from jail, and appeals. Affirmed.
32 Nev. 145, 146 (1909) State v. Clark
I. Proof of all the acts charged against the defendant in the indictment would not establish
the crime charged in the indictment. The crime charged in the indictment is the crime of
attempt to escape from a county jail; the acts set out and alleged in the indictment as having
been committed by defendant are that the said defendant while lawfully confined in the
county jail of Esmeralda County, State of Nevada, did wilfully, unlawfully and feloniously
attempt to break out of said county jail, and in pursuance of said attempt did wilfully,
unlawfully and feloniously break out of a cell in said county jail, in which he was confined,
and assault and overpower a jailer of said county jail. Proof that the defendant was lawfully
confined in a county jail and did attempt to break out of said county jail would not be proof
that the defendant attempted to escape from a county jail. Proof that the defendant was
lawfully confined in a county jail and while so confined did break out of a cell in said county
jail, would not be proof that the defendant attempted to escape from a county jail. Proof that
the defendant was lawfully confined in a county jail and while so confined did wilfully and
unlawfully assault and overpower a jailer of said county jail would not be proof that the
defendant attempted to escape from a county jail, nor would proof that the defendant while
lawfully confined in a county jail did attempt to break out of said county jail and did break
out of a cell in said county jail and did overpower and assault a jailer in said county jail,
establish the commission of a crime to escape from a county jail.
II. The court erred in admitting, over defendant's objection, incompetent and immaterial
evidence offered by the state. In the testimony of W. A. Ingalls, the so-called bench warrant
offered was incompetent, for the reason that there was no showing that said bench warrant
was issued by any due and lawful authority. If the court deem that the facts stated in the
presentment constitute a public offense, triable within the county, it shall direct the clerk to
issue a bench warrant for the arrest of the defendant. (Comp. Laws, 4186.) The clerk, on
application of the district attorney, may, accordingly, at any time after the order, whether
the court be sitting or not, issue a bench warrant under his signature and the seal of the
court into one or more districts.
32 Nev. 145, 147 (1909) State v. Clark
at any time after the order, whether the court be sitting or not, issue a bench warrant under his
signature and the seal of the court into one or more districts. There is nothing in the record to
show that a bench warrant was ever ordered issued by the court.
III. The bench warrant referred to in said testimony was incompetent, for the reason that
the said bench warrant was not on the first day of August, 1908, the date of the alleged
commission of the crime charged in the indictment, a live bench warrant and in force and
effect for the purposes for which it was issued, as appears from the testimony of the said
witness, Ingalls. A warrant remains in full force until it is returned, but after it has been
returned it is functus officio. (State v. Queen, 66 N. C. 615.) After a warrant of arrest has been
executed and return made, it is functus officio and no longer of any validity. (Com. v. Roark,
8 Cush. 210; Tubbs v. Turkey, 3 Cush. 438.) In the absence of a showing that the bench
warrant was still in force and effect upon the date named in the indictment, it will not be
presumed that it was in force and effect, and if it was not in force and effect, then it was
incompetent and immaterial for any purpose whatever. Said bench warrant was incompetent
and immaterial to any issue in this cause, for the reason that the testimony of the same
witness showed that there was no connection between the confinement of the defendant in the
jail and the bench warrant, the witness stating that all he knew about it was that he had a
bench warrant in his pocket and the defendant in jail, not being able to say whether defendant
was being at the time held in custody under the bench warrant or not.
IV. The court erred in excluding competent, relevant and material evidence offered on
behalf of the defendant at the trial. The testimony cited under this heading of the appellant's
bill of exceptions clearly shows that it was competent and material to the defendant's defense
at the trial.
V. The court erred in refusing to give to the jury the instruction offered by defendant at the
close of the testimony on the part of the state, advising the jury to return a verdict acquitting
the defendant. We submit that the record herein shows that the state had not produced
evidence sufficient to establish the crime charged in the indictment herein against the
defendant.
32 Nev. 145, 148 (1909) State v. Clark
establish the crime charged in the indictment herein against the defendant. There was no
proof that the defendant was lawfully in custody at the time of the alleged commission of the
acts set out in the indictment. For a person to commit the offense of escape, it is essential that
he should have been held in lawful custody. (People v. Ah Tung, 92 Cal. 424.) To establish
the crime of escape, the state must show by competent and relevant testimony that the
defendant was lawfully imprisoned. (State v. Whalen, 98 Mo. 222.) If the warrant of arrest or
commitment was void, a prisoner is not liable to escape. (State v. Leach, 7 Conn. 452; State
v. Lewis, 19 Kan. 260.)
VI. The court erred in refusing to give to the jury instruction number five offered by the
defendant. This indictment sets forth the elements necessary to constitute the crime of attempt
to escape from a county jail, and as the matters therein set out were not covered by any other
instruction given by the court, it was error for the court to refuse this instruction. In support of
this we refer to the citations heretofore set out herein under the discussion of lawful
confinement, overt act and intent; and further, these elements (intent and overt act) must
coexist in order to constitute an attempt to commit the crime. No degree of intent will of itself
suffice, no matter how evil or malignant it may be; and so an attempt cannot be effected by
any act alone, no matter how well adapted it might be to effect the criminal result if coupled
with the intent. This is an elementary rule and recognized by all the authorities. (Com. v.
Wilson, 30 Conn. 500; Cunningham v. State, 49 Miss. 702; Cox v. People, 82 Ill. 191;
Thompson v. People, 96 Ill. 158; State v. Lung, 21 Nev. 209; People v. Stites, 75 Cal. 570;
Com. v. Clark, 6 Grat. 675; State v. Colvin, 90 N. C. 717.)
VII. The verdict of the jury is contrary to the law and the evidence. On this point we
submit the record and urge that the testimony produced was not sufficient to establish the
crime charged in the indictment.
VIII. The court erred in overruling defendant's motion in arrest of judgment. The
indictment herein does not state facts sufficient to constitute a crime punishable at law.
32 Nev. 145, 149 (1909) State v. Clark
(1) The acts set out in the describing parts of the indictment are not such as would constitute
the crime charged in the charging part of the indictment. (2) There is no allegation in the
indictment that the acts alleged to have been done by the defendant were done with the intent
to escape from a county jail or that said acts were done with the intent to accomplish any
other unlawful act. Vide the authorities heretofore cited.
R. C. Stoddard, Attorney-General, for Respondent.
The appellant, having been tried and convicted of an attempt to escape from a county jail,
and sentenced to ten years' imprisonment, now seeks the intervention of this court for a new
trial. He contends that the trial court erred in admitting any testimony in the cause, for the
reason assigned that the indictment is fatally defective because it is not specifically alleged in
the indictment that the defendant did the acts complained of with the intent to escape, and,
further, that the bench warrant, not having been legally issued, was insufficient to place the
defendant in legal custody. A review of the record in this case will show that neither of these
positions is well taken. The crime for which defendant was indicted reads thus: Every person
lawfully confined in a county jail, or in the custody of any officer or person, under a lawful
arrest, who shall escape or break away from such officer or person, or shall escape from or
break out of, or attempt to escape from or break out of, such jail, shall, on conviction thereof,
be punished. * * * And in case such person is under arrest, or confined in jail, upon a charge
of felony, and so escape, or break away from, such arrest, or escape from, or break out of, or
attempt to break out of, such jail, then, upon conviction, he shall be punished by
imprisonment in the state prison not less than one nor more than ten years. (Comp. Laws,
4840.)
The indictment, after due entitlement of court and cause, is as follows: Defendants, C.
Clark, Harry May, and W. O. Grady, above named, are accused by the grand jury of
Esmeralda County, State of Nevada, by this indictment found this 4th day of September,
A. D. 190S, of a felony, to wit, the crime of attempt to escape from a county jail,
committed as follows: Said defendants, C.
32 Nev. 145, 150 (1909) State v. Clark
ralda County, State of Nevada, by this indictment found this 4th day of September, A. D.
1908, of a felony, to wit, the crime of attempt to escape from a county jail, committed as
follows: Said defendants, C. Clark, Harry May, and W. O. Grady, and each of them, on the
1st day of August, A. D. one thousand nine hundred and eight, or thereabouts, and before the
finding of this indictment, at the County of Esmeralda, State of Nevada, were and each of
them was lawfully confined in the county jail of Esmeralda County, State of Nevada, under
an indictment returned by the grand jury of Esmeralda County, State of Nevada, charging
them, and each of them, with the crime of burglary, and the said defendants, and each of
them, while lawfully confined in the said county jail as aforesaid, at the time and place
aforesaid, did wilfully, unlawfully, and feloniously attempt to break out of said county jail,
and in pursuance of said attempt did wilfully, unlawfully, and feloniously break out of a cell
in said county jail in which they and each of them were confined, and assault and overpower a
jailer of said county jail; all of which is contrary to the form, force, and effect of the statute in
such case made and provided, and against the peace and dignity of the State of Nevada. A. H.
Swallow, District Attorney of Esmeralda County, Nevada.
This court has held that, where a specific intent is required by statute to constitute the
crime, such specific intent, being an essential ingredient of the crime itself, must be alleged
and proved beyond a reasonable doubt. (State v. Rodriquez, 31 Nev. 342.) The supreme court
of this state, in line with the overwhelming weight of authority has, however, also held that
when the statute forbids the doing of a certain thing, and is silent concerning the intent with
which it is done, a person doing the unlawful act forbidden by law is guilty of the crime
charged, even though he had no wrongful intent beyond that which is involved in the doing of
the acts prohibited. (State v. Zichfeld, 23 Nev. 304, 34 L. R. A. 784, 62 Am. St. Rep. 800.)
So, in the present case, admitting but not conceding, because we believe with the jury
otherwise, that the defendant had no intention of escaping, the indictment sufficiently charges
and record substantiates the charges that he did those things charged in the indictment
especially made criminal and forbidden by law.
32 Nev. 145, 151 (1909) State v. Clark
charged in the indictment especially made criminal and forbidden by law. (Commonwealth v.
Mash, 7 Metc. (Mass.) 472; State v. Voight, 90 N. C. 741; Commonwealth v. Conley, 163
Mass. 539, 40 N. E. 862; Myers v. State, 1 Conn. 502; State v. Anderson, 3 Nev. 256; State v.
Johnson, 9 Nev. 178; State v. Angelo, 18 Nev. 425; State v. Goodenow, 65 Me. 30; Hood v.
State, 56 Ind. 263, 26 Am. Rep. 21; Davis v. Commonwealth, 13 Bush, 318; Wharton's
Criminal Evidence, 8th ed. sec. 725.)
The Supreme Court of Oregon, in passing upon an indictment of a similar nature of crime
to the one under consideration, very aptly observes and correctly quotes in support thereof
authorities which sustain its position as follows: The information charges that the defendant
assisted Bland in an attempt to escape by doing certain specific acts. As he could not assist in
an attempt to escape unless such attempt was actually made, the allegation is sufficient, after
verdict, that Bland in fact attempted to escape, and, as an attempt to escape necessarily
involves an intent to do so, it follows that he had such an intent. There is, of course, a
distinction between an intent and an attempt. Intent is a qualify of the mind and implies a
purpose only, while an attempt implies an effort to carry that purpose into execution; but
there can be no attempt until there has been an intent. Mr. Bishop says: An attempt always
implies a specific intent, not merely a general mental culpability. When we say that a man
attempted to do a thing, we mean that he intended to do specifically it, and proceeded a
certain way in the doing. The intent in the mind covers the thing in full. The act covers it only
in part.' (1 Bish. Cr. Law, 5th ed. sec. 729.) An attempt, therefore, embodies both the intent to
do a thing, and a direct ineffectual act done toward its commission. (1 McClain Cr. Law. sec.
222.) Hence the charge of an attempt necessarily includes and is equivalent to a charge of an
intent to accomplish what was intended. (Johnson v. State, 14 Ga. 55; Prince v. State, 35 Ala.
367.) We are of the opinion, therefore, that the information sufficiently charges that Bland
had an intent to escape. (State v. Daly, 41 Or. 515, 70 Pac. 707.)
The single word attempt' carries the double idea of both of an intent and the endeavor to
accomplish it; a proposition everywhere held."
32 Nev. 145, 152 (1909) State v. Clark
everywhere held. (2 Bish. New. Cr. Procedure, sec. 91.) The word feloniously has been
defined by Webster and by innumerable authorities in a legal sense to mean done with intent
to commit a crime, and when the word feloniously in an indictment is interpreted, it means
that the act was done with the intent to commit a crime and with a design on the part of the
perpetrator to commit the felony with which he is charged. (State v. Hughes, 31 Nev. 270;
State v. Douglas, 53 Kan. 669, 37 Pac. 172; People v. Willett, 102 N. Y. 251, 6 N. E. 301;
State v. Noland, 111 Mo. 473, 19 S. W. 715; Phelps v. People, 72 N. Y. 334; People v.
Butler, 1 Idaho, 231; People v. Conroy, 97 N. Y. 68; State v. Rechnitz, 20 Mont. 488, 52 Pac.
264; State v. Boyle, 28 Iowa, 522; Hamilton v. State, 142 Ind. 276, 41 N. E. 588; State v.
Smith, 31 Wash. 248, 71 Pac. 767; State v. Halpin, 16 S. D. 170, 91 N. W. 605.) The
indictment, tested by the requirements of the law of this state (Comp. Laws, 4208), and the
authorities herein cited and reasons given, is sufficient without the specific allegation of
intent. As the supreme court of this state in the case of State v. McGinnis, 6 Nev. 109, has
properly held that criminal intent can only be proven as a deduction from declarations or
acts, when the acts are established the natural and logical deduction is that defendant intended
to do what he did do, and, if he offers no excuse or palliation of the act done, such deduction
becomes conclusivethe evidence admitted over defendant's objection which tended to
establish the acts of defendant in making the attempted escape as charged in the indictment
from which the jury deduced its verdict of guilty, was all properly admitted in evidence.
(State v. Rigg, 10 Nev. 288; State v. Angelo, 18 Nev. 425.)
2. The defendant in the present case, while convicted of an attempt to escape from a county
jail, was at the time of the outbreak held under an indictment regularly brought against him
for burglary. The defendant has not shown any informalities or irregularities in the
commitment which would justify this court in presuming that the clerk did not issue the
bench warrant complained of in accordance with law. No irregularities appearing, the
presumption is that public officers do as the law and their duties require them. (Lawson on
Presumptive Evidence, pp.
32 Nev. 145, 153 (1909) State v. Clark
on Presumptive Evidence, pp. 34, 53.) We believe, however, that the defendant was legally
held by the bench warrant issued under sections 4224, 4225, Comp. Laws. Even though
conceding appellant's contention that the bench warrant was irregularly issued, yet the
defendant was legally in custody on the burglary indictment, and hence appellant's contention,
if granted, would avail nothing. The Supreme Court of California in the case of People v. Ah
Tung, 92 Cal. 425, 28 Pac. 578, 15 L. R. A. 190, properly stated the law of escape when it
said: An escape is classed as a crime against public justice, and the law, in declaring it to be
an offense, proceeds upon the theory that the citizen should yield obedience to the law; that
when one has been, by its authority or command, confined in a prison that it is his duty to
submit to such confinement until delivered by due course of law, no matter whether he was
committed to await a future trial, or as punishment after judgment of conviction, or for any
other purpose authorized by law. But, when the imprisonment is unlawful, and is itself a
crime, the reason which makes the flight from prison an offense does not exist. In such a case
the right to liberty is absolute, and he who regains it is not guilty of the technical offense of
escape.
The indictment being substantially sufficient, and no error appearing to the prejudice of
defendant's rights, the judgment of the lower court is affirmed.
It is so ordered.
____________
32 Nev. 154, 154 (1909) State v. Grady
[No. 1816]
THE STATE OF NEVADA, Respondent, v. W. O. GRADY,
Appellant.
1. EscapeTrialQuestion for Jury.
Questions of fact as to the intention of accused in making an attempted escape, with which he was
charged, were for the jury.
2. Criminal LawTrialInstructionPresumption of Innocence.
An instruction that accused at the beginning of the trial is presumed to be innocent, the fact that an
indictment had been found was not to be taken against him, and that it was the duty of the jury to reconcile,
if possible, the evidence produced with the presumption of accused's innocence, is not prejudicial to
accused.
Esmeralda County; F. P. Langan, Judge.
W. O. Grady was convicted of an attempt to escape from jail, and appeals. Affirmed.
I. The trial court erred in admitting over defendant's objection incompetent, irrelevant and
immaterial evidence offered by the state. To be admissible either for or against a defendant,
evidence must tend to prove some fact in issue or some fact relevant to some fact in issue,
and it must not be so remote as to be immaterial. (Stevens's Digest, Ev. Art. 2.) No evidence
can be admissible which does not tend to prove or disprove the issue joined; and this rule is
stronger in criminal prosecutions than in civil trials. (Dyson v. State, 26 Miss. 362; Hudson v.
State, 3 Caldw. 355.)
II. There was no foundation laid showing that a lawful bench warrant was ever issued for
the arrest of the defendant herein. If the court deem that the facts stated in the presentment
constitute a public offense, triable within the county, it shall direct the clerk to issue a bench
warrant for the arrest of the defendant. (Comp. Laws, 4186.) The clerk, on application of the
district attorney, may, accordingly, at any time after the order, whether the court be sitting or
not, issue a bench warrant, under his signature and the seal of the court, into one or more
districts. (Comp. Laws, 4187.) Failure to show that the issuance of the bench warrant was
ordered by the court is failure to show that the issuance of said bench warrant was lawful.
32 Nev. 154, 155 (1909) State v. Grady
the court is failure to show that the issuance of said bench warrant was lawful.
III. The instruction offered by defendant at the close of the state's case should have been
given by the court, for the reason that the testimony produced by the state was not sufficient
to constitute proof of the commission by defendant of a crime punishable at law. There was
no proof that defendant was lawfully in custody at the time of the alleged commission of the
acts testified to. If the warrant of arrest or commitment was void, a prisoner is not liable for
escaping. (State v. Leach, 7 Conn. 452; State v. Lewis, 19 Kan. 260.) A fortiori, where there
is a void warrant of arrest and no commitment. Where the imprisonment is illegal, as, for
instance, where it is under a void warrant, the offense (attempt to escape) is not committed.
(State v. Leach, 7 Conn. 452.) For a person to commit the offense of escape, it is essential
that he should have been held in lawful custody. (People v. Ah Tung, 92 Cal. 424.) To
establish the crime of escape, the state must show by competent and relevant testimony that
the defendant was lawfully imprisoned. (State v. Whalen, 98 Mo. 222.)
IV. Specific intent, when an essential element of the crime charged, must be alleged and
proved; it cannot be implied, except in cases of completed acts, wherein the doer of the acts is
presumed to have intended to do that which in fact he does do. (Morgan v. State, 33 Ala. 413;
Moore v. State, 26 Tex. App. 322; Pruett v. State, 20 Tex. App. 129; Harrell v. State, 13
Tex. App. 374; Davies v. State, 2 Humph. 439; Com. v. Wilson, 30 Conn. 500; Bowden v.
State, 12 Tex. Ct. App. 246; White v. State, 12 Tex. Ct. App. 259; Gillespie v. State, 13 Tex.
Ct. App. 415.) An essential ingredient of the offense of escape from prison is that there
should have been an intent on the part of the prisoner to escape. (Riley v. State, 16 Conn. 51;
State v. Murphy, 10 Ark. 74.) An attempt to commit a crime is an act done in part execution
of a criminal design, and possessing, except for failure to consummate, all the elements of the
substantive crime. (Burrill's Law Dict.)
V. The court erred in instructing the jury on matters of law. We have but to view
instruction number two, given by the court of its own motion, to observe the two defects
therein as claimed by appellant in his bill of exceptions herein.
32 Nev. 154, 156 (1909) State v. Grady
as claimed by appellant in his bill of exceptions herein. The language quoted in said
instruction is not the language of any statute of Nevada, and does not announce any correct
principle of law to the jury. The same view of the instruction discloses that it is meaningless
at law. The jury being by this instruction left to a wide range of conclusions, it cannot be
presumed that they were not persuaded by this instruction to reach a conclusion
disadvantageous to defendant and against his legal rights. An ambiguous instruction should
not be given. (State v. Anderson, 4 Nev. 265; Fountain v. State, 98 Ala. 40; State v. Petit, 119
Mo. 410; State v. Hawley, 63 Conn. 47; Conrad v. State, 132 Ind. 254.) An instruction which
incorrectly states the law is erroneous, and, unless it is clear that no prejudices could have
resulted, will cause a conviction to be set aside. (Clark Cr. Proc. 469; Plummer v. State, 34 N.
E. 968; State v. Brumley, 53 Mo. App. 126.)
VI. The court erred in pronouncing and affixing the penalty which was pronounced and
affixed by the court on the defendant herein. The verdict herein was to find the defendant
guilty as charged in the indictment. The charging part of the indictment charges the defendant
with having wilfully, unlawfully, and feloniously attempted to break out of a county jail, and
having in pursuance of said attempt assaulted and overpowered a jailer of said county jail;
which charge, if it constitutes anything, constitutes a charge of assault, which, we submit, will
not support the judgment and sentence of the court as rendered herein.
I. In State v. Rechnitz, 20 Mont. 453, 52 Pac. 264, it is said: It has been long settled that
in an indictment for a common-law felony it is necessary to aver that the act charged was
done feloniously'. (Hawkins's Pleas of the Crown, book 2, c. 25, sec. 55.) It means that the
act was done with a mind bent on doing that which is wrong, or as it has been sometimes
said with a guilty mind. (Hawkins, J., in Queen v. Folsom.) The word felonious' when
used in an indictment means that the act was done with the intent to commit the crime; that is,
the act was done with the design on the part of the perpetrator to commit the felony with
which he is charged."
32 Nev. 154, 157 (1909) State v. Grady
the perpetrator to commit the felony with which he is charged. (State v. Boyle, 22 Iowa,
522.) The word felonious' properly alleges the intent. (Hamilton v. State, 142 Ind. 276, 41
N. E. 538.) The word feloniously' means with intent to commit crime.' (Webster's Dict.;
State v. Smith, 31 Wash. 248; 71 Pac. 767.)
II. The lawfulness of the commitment does not depend upon the guilt or innocence of
defendant. (State v. Lewis, 10 Kan. 280.) In Rex v. Waters, 12 Cox C. C. 390, the prisoner
was arrested without a warrant, taken before a magistrate and remanded for three days. He
broke out of the lockup and returned to his house, but appeared before the magistrate at the
day fixed for his examination, and was discharged because there was no evidence against
him. He was, however, tried and convicted of an escape and the conviction was sustained.
III. In this case there was a valid indictment upon which the appellant was arrested under a
bench warrant, and was being duly held thereunder at the time of his attempt to escape. His
being held in custody was absolutely lawful. The testimony was ample and the verdict of the
jury was the only verdict that could have been rendered in the face of undisputed facts. The
judgment and proceedings of the trial court should be affirmed.
The defendant was indicted jointly with C. Clark and Harry May for the crime of attempt
to escape from the county jail. He was granted a separate trial, and he has appealed from the
judgment directing his incarceration in the state prison for ten years. At the time he attempted
to escape and in connection with such attempt joined in an assault upon the jailer, he was
confined in the county jail under a bench warrant upon an indictment for burglary. So far as
appears, the indictment and commitment were regular and the confinement proper. Questions
of fact and relating to the intention of the defendant in connection with the attempted escape
were for the jury which found him guilty as charged in the indictment. The specifications of
error presented are substantially the same as those this day determined in the case of State v.
Clark, 32 Nev. 145
32 Nev. 154, 158 (1909) State v. Grady
in the case of State v. Clark, 32 Nev. 145, who was convicted under the same indictment, and
the decision in that case is conclusive in this one.
Exception was taken to Instruction No. 2 given by the court, which stated that the
defendant at the beginning of the trial was presumed to be innocent, that the fact that an
indictment had been found was not to be taken against him, and that it was the duty of the
jury to reconcile, if possible, the evidence produced with the presumption of the defendant's
innocence. This instruction was quite favorable to the defendant, and in no way detrimental to
him.
Exception was also taken to the introduction of evidence, but, as the indictment and
commitment were sufficient, the testimony was properly admitted.
The judgment of the district court is affirmed.
____________
32 Nev. 159, 159 (1909) Bradley v. Esmeralda County
[No. 1838]
J. F. BRADLEY, Respondent, v. ESMERALDA COUNTY,
Appellant.
1. TaxationSheriff and Ex Officio AssessorCompensation.
Under the act of March 15, 1905 (Stats. 1905, p. 210), providing that the sheriff shall receive as ex
officio assessor $1,200 per annum, which act did not go into effect until two and one-half months after the
sheriff's term had commenced, the sheriff was not entitled to full compensation, but only the proportionate
part thereof, where he had duties to perform under the act during the entire year.
2. LicensesCollectionOfficersCompensation.
The general revenue act (Stats. 1891, p. 174, sec. 115, Comp. Laws, 1187) provides that the sheriff in the
several counties of the state shall be ex officio collector of licenses, and section 133 authorizes him to
retain six per cent of the gross amount of each business license sold as compensation. The act of March 11,
1885 (Stats. 1885, pp. 85, 88), provides, in sections 1 and 8, the compensation of a sheriff as sheriff and as
ex officio assessor, which compensation shall be in full for all services performed by himself or deputies.
The act of March 19, 1891 (Stats. 1891, p. 96), provides that the compensation fixed for such offices of
sheriff and ex officio assessor shall be in full for all his services as sheriff and as ex officio assessor. The
act of March 15, 1905 (Stats. 1905, p. 210), containing a general repealing clause, provides that the sheriff
shall receive a fixed salary as sheriff and as ex officio assessor, and makes no mention of collector of
licenses. Held, that the quoted clause in the act of 1885 could not be made applicable to the acts of 1905 so
as to preclude compensation to the sheriff as collector of licenses, since the act of 1885 was in conflict with
the acts of 1891 and 1905, and hence repealed, and especially since the office of collector of licenses has
been regarded in all revenue laws as a distinct office.
Action by J. F. Bradley against Esmeralda County. From a judgment for plaintiff,
defendant appeals. Modified and affirmed.
Augustus Tilden, District Attorney, and George Springmeyer, for Appellant:
I. The Esmeralda salary act of 1905 does not allow the sheriff, as ex officio license
collector, any commissions for the collection of licenses. The first and most important
question is whether the plaintiff was entitled to reserve and retain, as ex officio license
collector of defendant county, six per cent of the amount of business licenses collected by
him.
is whether the plaintiff was entitled to reserve and retain, as ex officio license collector of
defendant county, six per cent of the amount of business licenses collected by him. The act of
1905 does not mention the compensation of the sheriff as ex officio license collector, and
therefore he is entitled to the same compensation, if any, for such services that he received
prior to the act of 1905. In the lower court counsel for Mr. Bradley strenuously urged that the
compensation of the sheriff as ex officio license collector was not affected by the Esmeralda
salary act of 1905 (Stats. 1905, p. 210), for the following reasons: Section 1 provides that
* * * the county officers of Esmeralda County, State of Nevada, named in this act, shall
receive the following salaries and fees in full compensation for their services; that the ex
officio license collector is not named, and hence that act does not affect his compensation. It
may be added that the repealing clause of the act of 1905 repeals only acts or parts of acts in
conflict. Counsel stated that this fact, viz: that the office of ex officio license collector was
not named in the act of 1905 was of emphatic significance and should not be disregarded. We
accept this proposition, but we disagree with counsel as to its application.
II. By changing the words Eureka County to the words Esmeralda County the holding
in the case just cited would be made to apply precisely to the point at issue in our case. And
we take it to be absolutely clear that under the general county act of 1885 the sheriff of
Esmeralda County, as ex officio license collector, was not entitled to the commissions under
the revenue laws. And it is just as clear that this feature was not changed by the subsequent
Esmeralda County acts of 1891 and 1905. It may not be amiss here to state that in the lower
court plaintiff placed much reliance upon the case of State v. La Grave, 23 Nev. 373,
insisting that the facts were parallel to our case. But that is not true. There the facts were: In
1883 a law was passed allowing the clerk of the supreme court $600 a year as reporter of the
decisions of the supreme court. In 1891, by the state salary law, the salary of the secretary of
the state was fixed at $2,400 per annum. Then in 1893, by a distinct act, the secretary of state
was made ex officio clerk of the supreme court.
officio clerk of the supreme court. The court said that the rule that courts are bound to
uphold the prior law if it and a subsequent one may subsist together, or if it be possible to
reconcile the two together, is well settled, and held that the secretary of state, in addition to
the $2,400 salary as secretary of state, was entitled to the $600 for his services as ex officio
clerk of the supreme court. That manifestly correct decision can have no bearing on our case
for the reason that their ex officio duties for which compensation was provided were imposed
upon an officer after the passage of an act fixing the compensation of the officer for other
than ex officio duties. In our case no additional duties were imposed upon the sheriff after the
enactment of the Esmeralda salary act of 1905, for he had been ex officio license collector
since 1865.
III. The intention of the legislature by the act of 1905 was that the sheriff as ex officio
license collector should not receive commissions under the revenue law. The intention of the
legislature by the act of 1905, we think, is plain, clear, and unambiguous. But assuming that it
is not, we may have recourse to various expedients to determine what such intention was. The
act of 1905 uses the same plan as prior Esmeralda salary acts (and also the latter acts of 1907
and 1909), in that it makes no mention of the position of the sheriff as ex officio license
collector, but deals with him only as sheriff and ex officio assessor. Such prior acts, as we
have seen, did, however, deprive the sheriff of the commissions provided by the revenue laws
for his services as ex officio license collector, and it is only fair to assume that the legislature
by using, as was natural, the same plan and scheme, intended the same result by the act of
1905.
IV. The meaning of the statute of 1905, in that the commissions provided by the revenue
law be not retained by the sheriff as ex officio license collector, the principles heretofore
discussed demonstrate that the intention of the legislature by the act of 1905 was that the
sheriff as ex officio license collector be not allowed the commissions under the revenue act.
Did the legislature accomplish its purpose? We think it did, and that the meaning of the act is
clear, plain and unambiguous. But, assuming that it is not, and that resort must be had to
construction, we may apply the following doctrine: A statute is to be construed so as to
carry out the intent of the legislature.
had to construction, we may apply the following doctrine: A statute is to be construed so as to
carry out the intent of the legislature. (Keith v. Quinney, 1 Or. 364; Ex Parte Ellis, 111 Cal.
222; Stout v. Grant Co. Commrs., 107 Ind. 343, 8 N. E. 222; State v. Clark, 29 N. J. L. 96;
State v. Wheatly, 5 S. D. 427. 59 N. W. 211; Maynard v. Johnson, 2 Nev. 25; State v. Beard,
21 Nev. 218; cases cited in 44 Cent. Dig. cols. 2810-2811.)
V. The sheriff as ex officio assessor is entitled to only $950 for his services as such from
March 15, 1905, to January 1, 1906. The second question presented on this appeal is whether
Mr. Bradley should receive the full salary of $1,200 as ex officio assessor for the year 1905,
although the salary act providing that compensation did not become a law until March 15,
1905. The fact that Mr. Bradley performed all services devolving upon him as assessor for the
year 1905 does not appear to be a pertinent one. For during January and February and until
March 15th those duties devolved upon him and he was compensated according to the
provisions of law in force before the act of March 15, 1905. And if, for instance, the law went
into effect on December 15, 1905, instead of on March 15, 1905, could the assessor have
legally claimed the full yearly salary of $1,200?
VI. The lower court very properly sustained the contention of the defendant that the
plaintiff, as sheriff, is not entitled to any fees for serving jurors or attending court. And the
claim of plaintiff for fees aggregating $1,362.10 was by it properly rejected. With its
conclusion upon that position we, of course, entirely agree.
Summerfield & Curler, for Respondent:
I. In State v. Beard, 21 Nev. 222, this court, in closing its opinion, said: Abundant scope
is left for the operation of section 133 of the revenue law, when it is held to apply only to the
sheriffs of other counties who are not paid salaries in lieu of all other compensation. This
statement of the court is equivalent to saying that in cases where sheriffs are not paid salaries
in lieu of all other compensations they are entitled to receive and retain the six per centum
provided for in section 133 of the revenue law. Under the act of 1905 respondent was not
paid a salary in lieu of all other compensation, but, on the contrary, was only paid a salary
for his official services as sheriff and as assessor, and was also authorized to receive, in
addition thereto, such sheriff's fees in civil actions as are now provided by law.
ent was not paid a salary in lieu of all other compensation, but, on the contrary, was only paid
a salary for his official services as sheriff and as assessor, and was also authorized to receive,
in addition thereto, such sheriff's fees in civil actions as are now provided by law. It thus
appears that by reason of the plain meaning of the language quoted from the decision of this
court this case is entirely unaffected by it. In short, it is apparent that appellant realizes that its
contentions cannot prevail unless some existing law can be found providing that respondent's
services as license collector shall be compensated for only upon the theory that they are paid
in a salary or compensation provided for as payment to him as sheriff.
II. Notwithstanding the attempt of counsel for the appellant to distinguish between the case
of State v. La Grave, 23 Nev. 373, and this case, we still insist that the principles stated in the
La Grave decision by this court have a material bearing upon the facts in this case. It is
deemed unnecessary to draw a parallel upon the facts of the two cases as it is apparent upon a
mere reading thereof. For the purpose of such comparison it is only necessary to substitute
sheriff for secretary of state and collector of licenses for reporter of decisions, and
the result is too plain to be explained away.
This is an action brought by the above-named respondent against the County of Esmeralda
to recover a judgment in the sum of $4,565.75. The case was tried by the court without a jury,
and a judgment rendered in favor of the plaintiff for the sum of $3,203.65. From this
judgment the defendant county has appealed.
The respondent, at all times mentioned in the complaint, was the sheriff of Esmeralda
County, and the only questions involved in the action relate to the compensation which the
respondent was legally entitled to by virtue of his office of sheriff and certain ex officio
offices. By an act of the legislature, approved March 15, 1905, regulating the compensation of
county officers in Esmeralda County, it is provided: Section 1. From and after the approval
of this act, the county officers of Esmeralda County, State of Nevada, named in this act,
shall receive the following salaries and fees in full compensation for their services: The
sheriff shall receive four thousand {$4,000) dollars per annum, and such fees, in civil
actions, as are now allowed by law, and as ex officio assessor, the sheriff shall receive
twelve hundred {$1,200) dollars per annum," etc.
officers of Esmeralda County, State of Nevada, named in this act, shall receive the following
salaries and fees in full compensation for their services: The sheriff shall receive four
thousand ($4,000) dollars per annum, and such fees, in civil actions, as are now allowed by
law, and as ex officio assessor, the sheriff shall receive twelve hundred ($1,200) dollars per
annum, etc. (Stats. 1905, p. 210, c. 109.) The remaining portion of the section refers to the
compensation of other county officials and has no bearing upon the questions involved in this
action. Section 2 repeals all acts or parts of acts in conflict with the provisions of this act.
It is one of the contentions of counsel for appellant that respondent for his services as ex
officio assessor for the year 1905 was not entitled to the full yearly compensation for the
reason that the act did not take effect until after two and one-half months of the year had
expired, and hence it was error for the court to allow the full compensation or any amount
therefor in excess of $950. In support of his ruling that respondent was entitled to the full
annual salary as ex officio assessor for the year 1905, the trial judge, in his opinion, quotes
the following from 23 Am. & Eng. Ency. Law, 2d ed. 386: When an officer serving for an
annual salary performs his duty for the year within less than a year, he is entitled to a year's
salary upon the performance of such duties, and this though the office may be abolished
before the end of the year. The following cases are cited in the note to support the text
quoted: U. S. v. McCarthy, 1 McLean, 306, Fed. Cas. No. 15,657; U. S. v. Edwards, 1
McLean, 467, Fed. Cas. No. 15,026; U. S. v. Dickson, 15 Pet. 141, 10 L. Ed. 689; U. S. v.
Pearce, 2 Sumn. 575, Fed. Cas. No. 16,020; Ex Parte Lawrence, 1 Ohio St. 431.
The question involved in the federal cases cited, supra, was the right of the claimant to
receive certain fees and percentages for the collection of public funds in addition to a small
specified annual salary; the total salary, fees, and percentages not to exceed a specified
amount for any one year. That these cases may be distinguished from the one at bar, a few
extracts, we think will show. In the Edwards case, supra, the court said: By graduating the
allowance of commissions to quarterly payments and giving it the character of a salary,
injustice is done and the law is misconstrued."
to quarterly payments and giving it the character of a salary, injustice is done and the law is
misconstrued. In the McCarthy case, supra, the court reached a conclusion as follows: We
think therefore that the defendant, having received an amount which would give him, at one
per cent, the full extent of his allowance, for the year, is entitled to it, though he serves but
half the year. The salary of $500 will, of course, be allowed for the portion of the year the
defendant remained in office.
In the Pearce case, supra, the court said: It is very clear that under this statute all the fees
and emoluments (exclusive of the salary, which would be governed by other principles),
actually received by any collector during his continuance of office, would belong to him for
his own use, notwithstanding his subsequent removal from office within the same official
year.
In the Dickson case, supra, it was held that, so far as the salary was concerned, it should be
apportioned according to the time actually served.
In the Lawrence case, supra, the Ohio court, by Bartly, C. J., said: Where the duties of a
public officer, entitled to an annual salary, continue through the entire year, the salary accrues
and becomes payable for the space of time only during which the duties are required to be
performed; and a repeal of the law creating the office before the expiration of the year would
stop the accruing compensation at the time when the duties of the office ceased; but where the
duties of an officer, entitled to an annual salary are of such a nature that all his duties for the
year may be performed and completed within less time than the year, the compensation for
the entire year would be payable, in case the duties required by law for the year are
performed, although the office might be abolished before the end of the year, and, in such
case, where there is only a partial performance before the abolishment of the office, the
compensation should be apportioned to the duties performed, and not to the lapse of time.
In the case last mentioned, Lawrence was the reporter for the supreme court in bank. But
one term of the court for the year was authorized. The reporter attended upon this term and
fully performed all the duties required of him by law for the entire year.
term and fully performed all the duties required of him by law for the entire year. It was held
that he was entitled to the full annual compensation, although his office terminated by
operation of law before the end of the year.
It cannot be said, under the laws of this state, that a county assessor has no duties to
perform prior to the first Monday in March of each year. For example, he may be required to
collect poll taxes at any time during the year. (Comp. Laws, 1178.) During the month of
January he is required to investigate the proceeds of mines and assess and collect the taxes
due thereon. (Comp. Laws, 1149.) Other provisions of the statute doubtless exist which
require, or may require, the official services of the county assessor during every month of the
year. We think therefore that the salary of respondent as ex officio county assessor should be
apportioned upon the basis of $100 per month for the entire year, and that he is not entitled to
collect the apportionment for the first two and one-half months of the year 1905.
The next question presented is the right of respondent to retain certain fees claimed by him
as ex officio collector of licenses for Esmeralda County, amounting to the sum of $3,423.89.
By the provisions of section 115 of the general revenue act of this state: The sheriff in the
several counties of this state shall be ex officio collector of licenses, as provided in this act,
etc. (Stats. 1891, p. 174, c. 99; Comp. Laws, 1187.) Section 133 of the same act provides:
The sheriff, as ex officio license collector, shall receive, and is hereby authorized to retain,
as compensation for the collection of licenses, six per cent of the gross amount of each
business license sold. (Comp. Laws, 1205.) The office of collector of licenses is a separate
and distinct office, and has been so regarded in all of the revenue acts ever passed by the
legislature of this state. (State v. Laughton, 19 Nev. 202; State v. La Grave, 23 Nev. 373,
382.) The act of 1905, supra, fixing the salary of certain officers named in this act, makes
no mention of the office of collector of licenses, nor does it use any general words which
would include it, as was the case in the statute regulating the salaries of the officers of Eureka
County, construed in the case of State v. Beard, 21 Nev. 218, upon which appellants so much
rely.
rely. This court concluding the opinion in the Beard case, supra, said: Abundant scope is left
for the operation of section 133 of the revenue law, when it is held to apply only to the
sheriffs of other counties who are not paid salaries in lieu of all other compensation.
The contention of counsel for appellant that the provisions of sections 1 and 8 of An act
regulating the compensations of county officers in the several counties of this state, and other
matters relating thereto, approved March 11, 1885 (Stats. 1885, p. 85, c. 79), is applicable to
the office of sheriff of Esmeralda County, and, so far as it affects the office of collector of
licenses, has not been repealed by subsequent acts, is, we think, without merit. Section 1 of
said act provides: The following-named officers of the several counties in this state shall
receive the following compensations, which shall be in full for all services and all ex officio
services required by law. Section 8 provides: The sheriff of Esmeralda County shall receive
three thousand dollars per annum; * * * the assessor shall receive two thousand dollars per
annum, which shall be in full payment for all services performed by himself or deputies.
* * * By the act of March 19, 1891 (Stats. 1891, p. 96, c. 85), the sheriff of Esmeralda
County was made ex officio assessor, and an annual salary in solido fixed at $4,000, which
shall be compensation in full for all his services as sheriff and ex officio assessor. We think
the act of 1885, supra, in so far as it affects the salary of the office of sheriff, or of any ex
officio office attached thereto, is so far in conflict with the provisions of the said acts of 1891
and 1905 that such provisions are repealed.
It is ordered that the judgment be modified by a reduction in the sum of $250, and, as so
modified, the same be affirmed, to wit, in the sum of $2,953.65.
____________
32 Nev. 168, 168 (1909) Esmeralda County v. Bradley
[No. 1837]
ESMERALDA COUNTY, etc., Appellant, v. J. F.
BRADLEY, et als., Respondents.
Action by Esmeralda County against J. F. Bradley and others. From a judgment for
defendants, plaintiff appeals. Affirmed.
Augustus Tilden, District Attorney, for Appellant:
I. Esmeralda County in this case seeks to recover from Mr. Bradley and his official sureties
the sum of $3,423.93, being six per cent of the licenses collected by Mr. Bradley, as ex
officio license collector of Esmeralda County from April 1, 1905, to February 1, 1906, and
retained by Mr. Bradley as his commission. The county also seeks to recover the sum of
$855.98 as penalties and interest. Mr. Bradley's claim is that after the Esmeralda salary act of
1905 he, being sheriff and ex officio license collector of Esmeralda County, was entitled to
the commissions reserved and retained by him. The county disputes that right. The matter
having been fully gone into in the case of Bradley v. County, it is needless here to present it
further.
Summerfield & Curler, for Respondent:
I. Respondent concurs in the statement made by appellant's counsel in its brief that there is
no reason why the determination in the case of Bradley v. Esmeralda County, should not be
conclusive in this case.
This is an action instituted by Esmeralda County against J. F. Bradley, as sheriff of said
county, and his bondsmen, to recover the sum of $3,423.93, representing the amount of
percentages retained by said Bradley as ex officio collector of licenses. The case involves the
same question of law this day determined in the case of Bradley v. Esmeralda County {No.
32 Nev. 168, 169 (1909) Esmeralda County v. Bradley
day determined in the case of Bradley v. Esmeralda County (No. 1,838), 32 Nev. 159. In the
lower court the two cases were consolidated and heard together. Judgment in the case was
rendered in favor of the defendants for their costs of suit.
For the reasons stated in the opinion in case No. 1,838, supra, the judgment is affirmed.
____________
32 Nev. 169, 169 (1909) Menardi v. Wacker
[No. 1834]
J. B. MENARDI, Respondent, v. WILLIAM WACKER and J. D. SNYDE, Partners Doing
Business Under the Firm Name of Wacker & Company, Appellants.
1. TrialObjections to EvidenceNecessity of Motions to Strike.
Where the admissibility of evidence admitted subject to objection is to be decided later on a motion to
strike, and no motion is made, the objection is waived.
2. Appeal and ErrorReviewHarmless Error.
The admission of improper evidence of a fact established by other evidence, admitted without objection,
is not prejudicial.
3. CorporationsPledge of StockUnauthorized PledgeBona Fide Purchases.
One who buys stock with the money of his employers, without their knowledge or consent, holds
possession as an employee only and cannot pledge it for his own debt so as to defeat the employers' right to
recover it from the pledgee.
4. GamingPledge to Secure Gambling Debt.
A pledge of stock to secure a note given in payment of a gambling debt is void.
Washoe County; W. H. A. Pike, Judge.
Action by J. B. Menardi against William Wacker and another. From a judgment for
plaintiff, defendants appeal. Affirmed.
James T. Boyd and A. N. Salisbury, for Appellant:
I. Certificates of stock have uniformly been held in all of the late cases to be
quasi-negotiable and hence a delivery with an endorsement in blank has always been held to
be good. In the case at bar, there was nothing on or in or about the stocks to indicate any
interest or any right to the stock to be vested in W. L. Cox & Co., the stocks having been
originally issued to H. G. Humphry and Charles E.
stocks to indicate any interest or any right to the stock to be vested in W. L. Cox & Co., the
stocks having been originally issued to H. G. Humphry and Charles E. Hudson, so that the
legal title to all of that stock was vested in Humphry and Hudson, with the equity in the
purchaser and holder of the stock. Under the terms of the certificate the legal title could only
be transferred on the books of the company. (See transcript, pages 58, 59, and 60.)
II. Under all of the evidence of this case it is plainly apparent that W. L. Cox & Co. were
never the owners of the stock, nor did Marsh ever take that stock from the possession of W.
L. Cox & Co. The action here brought is one for the recovery of stock belonging to W. L.
Cox & Co., and taken from their possession by Mr. Marsh, while the evidence shows that
Marsh wrongfully and unlawfully appropriated money belonging to W. L. Cox & Co., and
purchased this stock.
Cheney, Massey & Price, for Respondent.
This action was commenced in the Second Judicial District Court, at Reno, Nevada, on
May 2, 1907, for the recovery of 200 specified shares of stock of the Goldfield Consolidated
Mines Company, and 100 shares of Goldfield Combination Fraction Mining Company stock,
and, in case the return of the specified stock could not be had, for the recovery of the value of
the stock and $500 damages for the wrongful taking and conversion of the said stock. The
cause was tried on the 30th day of September, 1908, before the court, without a jury, and on
the 2d day of November, 1908, the court rendered its judgment directing the return of the
stock to the plaintiff, and, in case the stock could not be had, then judgment in the sum of
$1,270, the value of the stock.
The testimony in this cause shows: That at the time alleged in the complaint W. L. Cox &
Co. were engaged in a stock brokerage business in Reno, the firm consisting of W. L. Cox, J.
B. Menardi, Claude Smith, and Joe J. Kerrick. A. C. Marsh was the cashier and manager of
said company, and with the firm's money bought the stock in question and charged it upon
the books of the company to the "stock" account of said company, and distinguished from
the "customers" account, wherein the stock purchased for customers was charged.
upon the books of the company to the stock account of said company, and distinguished
from the customers account, wherein the stock purchased for customers was charged. That
the defendants were running a saloon and gambling house in Reno, and that between 11 and
half past 1 o'clock on the evening of March 16, 1907, Marsh, who was drinking and
gambling, and known to be in the employ of the company by the defendant Wacker, from
time to time, during the time mentioned, secured from defendant Wacker on his checks the
amount of $2,000. That Marsh wanted to gamble more; but the defendant stopped him. On
the following morning, Marsh sent word to Wacker, by telephone, not to present his check,
that he desired to fix the matter up. That Marsh told the defendant Wacker that he did not
want him to come to the Cox & Co.'s place of business, and he did not wish to go to
defendant's saloon, but wanted to meet him elsewhere. They designated Pollard's rooms in a
lodging house as a meeting place, and there Marsh gave Wacker his ninety-day note for the
money and deposited the stock in question, which belonged to W. L. Cox & Co., and which
Marsh got from the company as security for the note.
Upon the return of Captain Cox, who was absent in the east at the time, after an
examination of the books, and after ascertaining Marsh's irregularities, and the facts of the
transaction from Marsh, he thereupon demanded the return of the stock from defendants,
which was refused. The testimony further shows that W. L. Cox & Co. never disposed of any
of said stock certificates, nor authorized any one to dispose of them for or on behalf of their
account. Following the well-established principle of law that a person has the right to follow,
sue for, and recover his property, wheresoever it may go or wheresoever it may be found, the
lower court rightfully awarded judgment to the plaintiff.
In the amended complaint, plaintiff, after alleging that plaintiff's assignors and
predecessors in interest were the owners of and entitled to the possession of the certificates of
stock in question, alleged that the defendants wrongfully and unlawfully took possession of
said personal property and deprived plaintiff's predecessor and assignor in interest of its
possession.
possession. The answer of the defendants denied all the material allegations of the complaint.
Plaintiff's assignments of error, which go to the insufficiency of the evidence to support the
findings of the lower court, before whom the case was tried without a jury, will not be
disturbed, for the reason that an examination of the evidence discloses that the evidence was
sufficient.
During the trial the objections made to questions asked Captain Cox concerning the
ownership of the stock and affairs of the company, which is the main testimony against which
the objections were taken, was agreed to be taken subject to objection, and the question of its
admissibility determined later on a motion to strike out. The record discloses that no motion
to strike out was ever made to the testimony taken subject to the objection and agreement. It
is well established that evidence introduced subject to objection and the question of its
admissibility withheld until further proof is made, if the objecting party does not move at the
proper time to have the testimony stricken from the record, he waives his objection, and the
exceptions to its admissibility cannot be considered on appeal. As the Court of Appeals of
Maryland, in passing upon this rule, has well and tersely said: The evidence of Honig was
admitted subject to exception. There was therefore no definite or final decision by the trial
court as to the admissibility of the evidence. This course is frequently adopted to facilitate
trials, and to enable the court more fully to understand than it is possible to do at the moment
the bearing of the evidence upon the issues; but admitting evidence subject to exception is not
a ruling that can be brought up by bill of exception, or in any other way. The evidence is
merely admitted conditionally. The objecting party is at liberty to move later on that it be
excluded, and from a refusal by the court to grant such a motion an exception will lie. This is
the settled practice. (Flach v. Gottschalk Co., 88 Md. 368, 377, 41 Atl. 908, 911, 42 L. R. A.
745, 71 Am. St. Rep. 418; Naas v. Wolter, 92 Minn. 404, 100 N. W. 211; Breitkreutz v. Nat.
Bk., 70 Kan. 698, 79 Pac. 666; Knickerbocker Ice Co. v. Gardiner Dairy Co., 107 Md. 556,
69 Atl. 406, 411, 16 L. R. A. (N. S.) 746; King v. Haney, 46 Cal. 560, 13 Am. Rep. 217.)
However, from an inspection of the record, the evidence was not prejudicial to the
substantial rights of the defendant, because the documentary evidence introduced, as
disclosed by the books of the company, taken together with the evidence of Cox
pertaining thereto, and not objected to, substantiated the claims of plaintiff.
ever, from an inspection of the record, the evidence was not prejudicial to the substantial
rights of the defendant, because the documentary evidence introduced, as disclosed by the
books of the company, taken together with the evidence of Cox pertaining thereto, and not
objected to, substantiated the claims of plaintiff.
Appellant's contention that, because the stock in question was bought by Marsh with the
money of Cox & Co., without their knowledge or consent, it thereby became Marsh's
property, and, as Cox & Co. had no notice of the transaction until after the stock had been
pledged to Wacker & Co., they had no interest in the stock until they ratified the transaction,
is not well taken in law, because the stock was never delivered by Cox & Co. to Marsh, and
he had no rightful personal possession of the stock, and he was not authorized to deliver or
pledge the stock of Cox & Co. to any one. The only right Marsh had to the possession of the
stock was as the employee of Cox & Co. In law his possession of the stock was the
possession of the company. (Hanson v. Chiatovich, 13 Nev. 395; Barstow v. Savage Min.
Co., 64 Cal. 388, 1 Pac. 349, 49 Am. St. Rep. 705.)
Again, the defendants in this case cannot legally be considered pledgees or bona fide
purchasers of the stock in dispute, for the reason that the stock was given to secure a
gambling debt, and was therefore given for no valuable consideration and was void. A check
given for a gambling debt is void under the law of this state, and, there being no valid
obligation, there could be no lawful consideration for the security as a pledge. (Burke v. Buck,
31 Nev. 74.)
The judgment of the lower court is affirmed.
It is so ordered.
____________
32 Nev. 174, 174 (1909) Wolf v. County of Humboldt
[No. 1808]
P. H. WOLF, Respondent, v. COUNTY OF HUMBOLDT,
Appellant.
1. StatutesSpecial LawsProcedure in Criminal Cases.
Article IV, section 20, of the constitution prohibits the legislature from passing local or special laws
regulating the jurisdiction and duties of the justices of the peace and constables, and for the punishment of
crimes and misdemeanors, * * * regulating county and township business. * * * 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. Section 25 provides that
the legislature shall establish a system of county and township government which shall be uniform
throughout the state. The act of the legislature approved March 13, 1903 (Stats. 1903, p. 98, c. 71),
provides that the commissioners of Humboldt County could provide that persons charged with or convicted
of a misdemeanor in the western townships of said county, may be imprisoned in the branch county jail of
said county, instead of the county jail. Held, that such act was unconstitutional, as being a special act upon
a subject that could be covered by a general act.
Humboldt County; W. H. A. Pike, Judge.
Action by P. H. Wolf against the County of Humboldt. Judgment for plaintiff, and
defendant appeals. Affirmed.
E. A. Ducker, District Attorney, and C. Robins, for Appellant.
H. Warren and L. G. Wilson, for Respondent.
This action is brought to recover $1,607.35 for services rendered the defendant by
plaintiff, in his capacity of constable of Lake Township in Humboldt County, in and about
arresting certain persons in said township, and taking and transporting certain prisoners, who
had been tried and convicted in the justice's court of said township, from Lovelock, in said
township and county, to the county jail, at Winnemucca, in said county. Such services were
rendered from and including June 1, 1906, to and including January 30, 1907. From a
judgment in favor of the plaintiff, respondent herein, for the full amount sued for, the
defendant appeals.
judgment in favor of the plaintiff, respondent herein, for the full amount sued for, the
defendant appeals.
The appeal presents the sole question whether the justice of the peace of Lake Township
had jurisdiction to commit to the county jail at Winnemucca a prisoner convicted of a
misdemeanor in his court, instead of committing him to the branch county jail at Lovelock, in
the absence of a finding that the public safety or the safety of such prisoner required
commitment to the county jail at Winnemucca. The question presented is based upon the
provisions of an act of the legislature which reads: An act to authorize the board of county
commissioners of Humboldt County to provide for the imprisonment of certain prisoners in
the branch county jail at the Town of Lovelock in said county, approved March 13, 1903.
Section 1. The board of county commissioners of Humboldt County are hereby authorized, by
an order to be entered in their minutes, to provide that persons charged with or convicted of a
misdemeanor in the western townships of said Humboldt County may be imprisoned in the
branch county jail of said county, at the Town of Lovelock in said county, instead of the
county jail at Winnemucca; provided, that nothing in said order shall prohibit any judge or
justice of the peace before whom such conviction may be had, from ordering any such
prisoner to be imprisoned in the county jail at Winnemucca where the public safety or the
safety of such prisoner may require it. (Stats. 1903, 98.) We think the statute relied upon by
the appellant is clearly in violation of the constitution and void. Sections 20, 21, and 25 of
article 4 of the constitution provide:
Sec. 20. The legislature shall not pass local or special laws in any of the following
enumerated casesthat is to say: regulating the jurisdiction and duties of the justices of the
peace and of constables; for the punishment of crimes and misdemeanors; regulating the
practice of courts of justice; * * * regulating county and township business. * * *
Sec. 21. In all cases enumerated in the preceding section, and in all other cases where a
general law can be made applicable, all laws shall be general and of uniform operation
throughout the state.
Sec. 25. The legislature shall establish a system of county and township government,
which shall be uniform throughout the state.
That a general act can be passed covering the subject-matter of the special act above
quoted and relied on by counsel for appellant is not only clearly manifest, but the fact is that
the legislature of 1907 did pass such a general act. (Stats. 1907, 301.)
The judgment appealed from is affirmed.
____________
32 Nev. 176, 176 (1909) State v. Langan
[No. 1852]
THE STATE OF NEVADA, ex rel. CLARA COOK, Relator, v. FRANK P. LANGAN, Judge
of the First Judicial District, Respondent.
1. HomesteadRights of Surviving SpouseProceedings for AllotmentReviewMotion for New Trial.
A motion for new trial preliminary to appeal is proper in estate proceedings to set aside a homestead to
the widow; the practice in civil cases being made applicable to such proceedings by a probate act (Stats.
1897, sec. 281, p. 164; Comp. Laws, 3067).
2. HomesteadRights of Surviving SpouseProceedings for AllotmentPetition.
The issue as to whether property sought to be set aside to a widow of a homestead is separate or
community property, is raised by a petition showing that the husband was in possession when he died; the
presumption being in favor of the community in such case.
Original proceeding. Mandamus by the State, on the relation of Clara Cook, against Frank
P. Langan, to compel respondent, as judge of the district court, to settle a proposed statement
on a motion for a new trial. Writ issued.
Samuel Platt and M. A. Murphy, for Petitioner.
W. Woodburn and J. Poujade, for Respondent.
This is an original proceeding in mandamus. The petition of relator sets forth: That she is
the widow of Walter Cook, deceased, and the administratrix of his estate; that as such widow
she filed a petition in the First Judicial District Court in and for Ormsby County, in the
estate proceedings of the said Walter Cook, deceased, praying for an order of said court
setting aside to her, for her own individual separate use and benefit, certain specified real
property as a homestead; that said petition was contested by certain of the alleged heirs
at law of said decedent; that thereafter said petition came on regularly to be heard before
said court, and evidence was presented on behalf of said petitioner and also on behalf of
said contestants; that, after the conclusion of such hearing, the matter was submitted to
the court for its decision; that thereafter, and on July 30, 190S, the said court made an
order denying the prayer of the petitioner; that thereafter, and on September 11, 190S,
within the time allowed by the court, petitioner filed and served her notice of motion for a
new trial; that thereafter, on the 25th day of September, 190S, within the time allowed by
the court, petitioner filed and served her proposed statement on motion for a new trial;
that no amendments to said proposed statement were offered by contestants, and,
pursuant to oral stipulation of respective counsel in open court, the said court set down
the hearing of petitioner's motion for a new trial for the 27th day of July, 1909; that on
said date last mentioned, upon motion of counsel for petitioner, the court ordered the
clerk to indorse upon said proposed statement that "no amendments have been filed to
the proposed statement on motion for a new trial"; that thereupon the court made an
order refusing to settle said proposed statement upon the ground that an order denying a
petition to set aside a homestead was a direct appealable order, and that a motion for a
new trial was and is not a proper remedy, to which ruling the petitioner duly excepted.
widow she filed a petition in the First Judicial District Court in and for Ormsby County, in
the estate proceedings of the said Walter Cook, deceased, praying for an order of said court
setting aside to her, for her own individual separate use and benefit, certain specified real
property as a homestead; that said petition was contested by certain of the alleged heirs at law
of said decedent; that thereafter said petition came on regularly to be heard before said court,
and evidence was presented on behalf of said petitioner and also on behalf of said contestants;
that, after the conclusion of such hearing, the matter was submitted to the court for its
decision; that thereafter, and on July 30, 1908, the said court made an order denying the
prayer of the petitioner; that thereafter, and on September 11, 1908, within the time allowed
by the court, petitioner filed and served her notice of motion for a new trial; that thereafter, on
the 25th day of September, 1908, within the time allowed by the court, petitioner filed and
served her proposed statement on motion for a new trial; that no amendments to said
proposed statement were offered by contestants, and, pursuant to oral stipulation of respective
counsel in open court, the said court set down the hearing of petitioner's motion for a new
trial for the 27th day of July, 1909; that on said date last mentioned, upon motion of counsel
for petitioner, the court ordered the clerk to indorse upon said proposed statement that no
amendments have been filed to the proposed statement on motion for a new trial; that
thereupon the court made an order refusing to settle said proposed statement upon the ground
that an order denying a petition to set aside a homestead was a direct appealable order, and
that a motion for a new trial was and is not a proper remedy, to which ruling the petitioner
duly excepted.
The answer of respondent herein sets up: That the petition of relator in the lower court
failed to allege that the property, sought to be set apart as a homestead, was community
property, and that the inventory, filed in the estate matter, failed to show its character; that
upon the hearing petitioner admitted that the property in question was the separate property of
Walter Cook, deceased; that there were no issues of fact made by pleadings as to whether the
property was separate or community property, the sole question considered by the court in
its order; that the hearing upon the petition was merely to inform the respondent of the
character of the property, and was not a legal trial; that, if petitioner were denied her
rights in the order refusing to set aside a homestead, her remedy was by appeal from said
order; that the court had no jurisdiction of a motion for a new trial to reverse its decision
on such an order; and that therefore respondent was, and is, without authority to settle
the proposed statement on motion for new trial.
community property, the sole question considered by the court in its order; that the hearing
upon the petition was merely to inform the respondent of the character of the property, and
was not a legal trial; that, if petitioner were denied her rights in the order refusing to set aside
a homestead, her remedy was by appeal from said order; that the court had no jurisdiction of a
motion for a new trial to reverse its decision on such an order; and that therefore respondent
was, and is, without authority to settle the proposed statement on motion for new trial. Upon
the hearing of this application for mandamus, the records and files in the lower court were
offered in evidence. The notice of motion for a new trial was based upon the grounds of
insufficiency of the evidence to justify the judgment and that the decision and judgment is
against law.
As we view this application, only a question of practice is presented upon the record.
Counsel have to some extent argued the question of law whether or not the lower court has
power to decree a homestead set apart out of the separate estate of the deceased husband. It is
conceded that such question controlled the court in making the order denying the application
to set aside a homestead. This question is one of great importance and has never been
determined by this court. It was sought to be determined in the case of Quinn v. Quinn, 27
Nev. 156, but this court held that the appellant had not taken the proper procedure to present
the question in that case, and hence the question was not passed upon. Were the question now
properly before us, we should not be disposed to determine it in the absence of the question
being thoroughly briefed by respective counsel. If, as counsel for respondent contend, a
homestead can in no event, under the statutes of this state, be set apart out of the separate
property of the deceased husband, in the absence of statutory declaration having been made
prior to his death, and the evidence offered in the lower court upon the hearing conclusively
shows that the property, sought to be set aside, was part of decedent's separate estate, and that
there was no showing that such declaration was ever made, then the evidence would justify
the decree entered; but the court cannot pass upon such question until it is properly
presented upon appeal.
until it is properly presented upon appeal. Hence, as before stated, the only question now
before us is one of practice, to wit, whether petitioner has a right to move for a new trial
preliminary to an appeal, or whether he is limited by appeal direct from the order or decree.
We are convinced, from an examination of statutory provisions controlling, that the
proceeding by motion for a new trial is proper.
Sections 252, 255, and 281 of the act to regulate the settlement of estates of deceased
persons, provide:
Sec. 252. All issues of fact in matters of an estate shall be disposed of in the same manner
as is by law provided upon the trial of issues of fact in a common-law action. All questions of
costs may be determined by the court, and execution may issue therefor in accordance with
the order of the court.
Sec. 255. Any person interested in, affected by, and aggrieved at the decision and decree
of the district court appointing an executor or administrator, revoking letters, allowing a final
account, or disallowing it, decreeing a distribution or partition, order or decree, confirming or
setting aside a report of commissioners, admitting or refusing a will for probate, and any other
decision wherein the amount in controversy equals or exceeds, exclusive of costs, one
thousand dollars, may appeal to the supreme court of the state, to be governed in all respects
as an appeal from a final decision and judgment in action at law.
Sec. 281. When not otherwise specially provided in this act, all the provisions of law
regulating proceedings in civil cases, shall apply in matters of estate, when appropriate, or the
same may be applied as auxiliary to the provisions of this act. (Comp. Laws, 3038, 3041,
3067.)
In the case of Quinn v. Quinn, supra, this court said: By analogy, we may consider the
petition for the order setting apart a homestead as a complaint, the reply thereto as an answer,
and the order as a judgment, and regard them as constituting a judgment roll. A degree
setting aside or refusing to set aside a homestead is essentially a final judgment affecting the
title to real property. If an application to set aside a homestead is contested, the issue or issues
joined are tried in the same manner as issues in an ordinary action. We see no reason why a
motion for a new trial would not be appropriate in such a proceeding.
no reason why a motion for a new trial would not be appropriate in such a proceeding. If
the lower court has erred in its decision, it ought to have an opportunity to correct it and thus
avoid the necessity of an appeal. If a motion for a new trial is appropriate, and we think it is,
it is made applicable to proceedings of this character by the provisions of section 281, supra.
Counsel for respondent has not pointed out how this court could review the sufficiency of the
evidence to support a decree in a homestead contest, upon a direct appeal. This court has
frequently held, in actions brought under the provisions of the civil practice act, that it cannot
review the evidence to determine its sufficiency to support the judgment in the absence of a
motion and statement on motion for a new trial. (State v. Sadler, 21 Nev. 13; Burbank v.
Rivers, 20 Nev. 81; Beck v. Truckee Lodge, 18 Nev. 246; State v. Norther Belle M. Co., 15
Nev. 385 Conley v. Chedic, 7 Nev. 336; James v. Goodenough, Id. 324; Whitmore v.
Shiverick, 3 Nev. 303; Quinn v. Quinn, 27 Nev. 156.)
The Supreme Court of California, in Re Bauquier, 88 Cal. 315, 26 Pac. 533, said: It would
be impracticable to enumerate the cases in which a motion for a new trial is appropriate in
probate proceedings; but it may be stated generally that, whenever the action of the court
which is invoked is dependent upon the existence of certain extrinsic facts which are
presented to it for determination in the form of pleadings, and are to be decided by it in
conformity with the preponderance of the evidence offered thereon, an issue of fact arises
which, after its decision, may be reexamined by the court upon a motion for a new trial.
(Leach v. Pierce, 93 Cal. 614, 29 Pac. 235; Id. 93 Cal. 624, 29 Pac. 238; In re Spencer, 96
Cal. 448, 31 Pac. 453; Estate of Franklin, 133 Cal. 584, 65 Pac. 1081; In re Davis's Estate,
27 Mont. 235, 241, 70 Pac. 721.)
It is contended that no issue was presented in the lower court for the reason that the
petition to set aside a homestead did not allege that the property in question was community
property; hence that there was no trial and no basis for a new trial. The petition, praying that
certain specified real property be set aside to the widow as a homestead, alleges that it was
occupied by the said decedent and his family for a long time prior to the death of the said
decedent, and up to this date the widow of the said decedent has remained in the
possession of the said house and premises."
prior to the death of the said decedent, and up to this date the widow of the said decedent has
remained in the possession of the said house and premises. Further than this, there is no
allegation from which the character of the property may be inferred. No direct allegation that
the property is community appears. The answer filed by the contesting heirs sets up as a
defense to the proceeding, in addition to certain denials, the allegation that the property in
question was the separate estate of the decedent. Conceding, for the purposes of this case
only, without so deciding, that it was essential for the petition to show that the property was
community, in order to raise the issue, can the petition be regarded as containing such an
allegation?
The Supreme Court of California, considering the provisions of the statute of that state
defining separate and community property of husband and wife, from which ours was
doubtless copied, in the case of Meyer v. Kinzer, 12 Cal. 251, 73 Am. Dec. 538, by Field, J.,
said: All property is common property, except that owned previous to marriage or
subsequently acquired in a particular way. The presumption therefore attending the
possession of property by either is that it belongs to the community. Exceptions to the rule
must be proved. * * * This invariable presumption which attends the possession of property
by either spouse during the existence of the community can only be overcome by clear and
certain proof that it was owned by the claimant before marriage, or acquired afterwards in one
of the particular ways specified in the statute, or that it is property taken in exchange for, or in
the investment, or as the price of the property so originally owned or acquired. The burden of
proof must rest with the claimant of the separate estate. See, also, Morgan v. Lones, 78 Cal.
62, 20 Pac. 248; Dimmick v. Dimmick, 95 Cal. 367, 30 Pac. 547; In re Boody, 113 Cal. 686,
45 Pac. 858; Fennell v. Drinkhouse, 131 Cal. 447, 63 Pac. 734, 82 Am. St. Rep. 361; Freese
v. Hibernia Bank, 139 Cal. 392, 73 Pac. 172; Lake v. Bender, 18 Nev. 361. It may be stated
as a general proposition that the presumption of the law is against separate property, and in
favor of the community; the presumption attending the possession of property by either
spouse being that it belongs to the community.
that it belongs to the community. And hence, of course, it follows as a matter of course that
the burden of proof is generally upon the party claiming that the property is not a part of the
community estate. Property purchased or acquired during the existence of the marital relation,
whether the title be taken in the name of the husband, or that of the wife, or in their joint
names, is presumed to be community property. Moreover, it has been held that, in the absence
of proof that the property was acquired before marriage took place, the presumption arises
that the property was obtained during the marriage relationship and is community. So
property found in the possession of either husband or wife at the time the marriage is
dissolved is presumed to be community estate. The above-mentioned presumptions are,
however, prima facie only, and may be overcome by evidence showing that the property
purchased or otherwise acquired was in fact paid for with separate funds, or otherwise
acquired as separate property. (21 Cyc. 1650.)
From the authorities above cited, we think the petition to set aside a homestead, at least in
the absence of demurrer, should be construed in connection with the presumption that the
property in question is community property. Thus construed, the issue as to whether the
property was separate or community was raised upon the face of the pleadings. It is our
conclusion therefore that it was respondent's duty to settle the said statement on motion for a
new trial.
The writ prayed for will issue.
____________
32 Nev. 183, 183 (1909) Wiggins v. Pradere
[No. 1843]
JAMES WIGGINS, Respondent, v. MARTIN PRADERE,
Appellant.
1. Appeal and ErrorReviewConflicting Evidence.
A judgment on conflicting evidence will not be set aside if supported by any substantial evidence.
Appeal from the District Court of the First Judicial District of the State of Nevada, Lyon
County; F. P. Langan, Judge.
Action by James Wiggins against Martin Pradere. There was a judgment for plaintiff, and,
from an order denying a new trial, defendant appeals. Affirmed.
James T. Boyd and A. N. Salisbury, for Appellant.
Alfred Chartz, for Respondent.
This action was brought to recover $500 damages claimed to have been caused by herding
and grazing sheep upon plaintiff's lands, and for $50 damages alleged to have been caused by
herding a donkey carrying a pack upon these lands and allowing him to enter plaintiff's corral
and eat and trample upon a stack of wheat. The court rendered judgment for $300 on the first
claim and for $20 on the second. From an order denying a motion for a new trial, the
defendant has appealed, and on his behalf it is urged that the amount allowed is excessive and
not supported by the evidence.
There is a strong conflict in the testimony. Witnesses stated that between 2,000 and 3,000
sheep were herded and grazed at different times on three 40-acre tracts of land belonging to
the plaintiff, and he and his brother stated on the stand that the sheep had trampled upon and
uprooted different kinds of grasses growing on the lands and had eaten the seeds, and by
tramping had smoothed the sloping ground, and that they placed the damage caused by the
sheep at $500. Another witness testified: That he had ranched for over twenty years and
owned the adjoining place for nearly all that time; that he was well acquainted with the
plaintiff's ranch; that he had never herded or grazed sheep, but had for many years
observed their depredations and the injuries they caused, and how they trampled the
grass and pulled it up by the root and ate the seeds; that he knew of the sloping character
of plaintiff's land; that he considered $300 would be a fair estimate of the damage caused
by the sheep; that he had no interest in the result of the action; that his premises
adjoining had never been trespassed upon; and that he had no business connections of
any kind with the plaintiff.
was well acquainted with the plaintiff's ranch; that he had never herded or grazed sheep, but
had for many years observed their depredations and the injuries they caused, and how they
trampled the grass and pulled it up by the root and ate the seeds; that he knew of the sloping
character of plaintiff's land; that he considered $300 would be a fair estimate of the damage
caused by the sheep; that he had no interest in the result of the action; that his premises
adjoining had never been trespassed upon; and that he had no business connections of any
kind with the plaintiff. The judgment follows his estimate.
The testimony on the part of the defendant that there was no grass on plaintiff's land, and
that no damage was done by herding the sheep thereon, and that plaintiff had previously
leased the land and had agreed to lease during two months in the following spring for much
less than the damages claimed by him or allowed by the court, contradicted plaintiff's
testimony and tended to reduce the amount to be allowed; but this, and the fact that plaintiff
leased several thousand acres at $300 rental per year, if admissible as evidence, could not
estop plaintiff from proving that damage much larger relatively per acre than the lease charge
he was paying had been occasioned, nor overthrow the judgment if it is supported by
plaintiff's evidence. It would seem that the damages awarded were very liberal to the plaintiff,
and if we could consider the evidence as a jury, or as the trial judge in passing upon a motion
for a new trial upon the ground that the verdict or judgment is against the weight of the
evidence, or as courts often do where the facts and conditions in damage cases are admitted,
or are such that they will take judicial notice of them, we might conclude that the amount
allowed is excessive; but there is such a disagreement of the witnesses as to whether there
was any grass growing or destroyed upon the land, and regarding the damage committed, and
the facts beyond our knowledge, that we feel, under the peculiar circumstances in this case,
that we are precluded from setting aside, or making an order for the modification of the
judgment, under the rule that it will not be set aside if it is supported by any substantial
evidence. As said in Tonopah L.
Co. v. Riley, 30 Nev. 322: This court has repeatedly held that, where there is a substantial
conflict in the evidence, it will not disturb the verdict of the jury or decision of the court.
The order of the district court is affirmed.
____________
32 Nev. 185, 185 (1909) State v. Hill
[No. 1845]
THE STATE OF NEVADA, Respondent, v. F. B. HILL,
Appellant.
1. Criminal LawAppealDefective Transcript on AppealNecessity of Proceedings to Correct.
Though the supreme court has adopted a liberal practice in granting applications to amend defects in
transcripts, where no move is made pursuant to supreme court rule 7 to obviate a valid objection to a
transcript, there is no other alternative than to sustain the objection.
2. Criminal LawFiling Bill of Exceptions as Part of the Record.
A bill of exceptions, when properly settled, should be filed as required by Comp. Laws, 4390, 4415, and
it then becomes a part of the record.
3. Criminal LawTranscript on AppealPartial Certification.
Where the record of an appealed case is in two volumes, only one of which is certified to be a true and
correct transcript of the appeal herein, the supreme court can only consider the volume so certified.
4. Criminal LawRecord on AppealInstruction Given on Court's Own Motion.
In view of Comp. Laws, 4415, enumerating the bill of exceptions and the written charges asked of the
court among the papers required to be filed as a part of the record in a criminal case, but not expressly
mentioned instructions given by the court of its own motion, such instructions are not a part of the record
on appeal unless embodied in the bill of exceptions.
Esmeralda County; Peter J. Somers, Judge.
F. B. Hill was convicted of embezzlement, and he appeals. Affirmed.
Thomas B. Flanagan, for Appellant.
R. C. Stoddard, Attorney-General, for Respondent.
32 Nev. 185, 186 (1909) State v. Hill
The appellant was convicted of the crime of embezzlement by bailee, and sentenced to be
confined in the state prison for the term of one year. From the judgment and from an order
denying a motion for a new trial, he appeals.
The record in this case filed by the clerk of the court is in two volumes, one of which, from
inspection, is in the form of a bill of exceptions, but it does not appear therefrom that it was
ever filed in the action in the lower court, nor is it certified to in any respect whatever. To the
other volume is attached a certificate reading as follows: State of Nevada, County of
Esmeraldass: I, Joseph Hamilton, clerk of the County of Esmeralda, State of Nevada, and
ex officio clerk of the District Court of the Seventh Judicial District of the State of Nevada, in
and for the County of Esmeralda, do hereby certify that the within and foregoing transcript on
appeal herein is true and correct, and a true and correct record of the proceedings herein, and
that the indictment, demurrer to indictment, instructions to jury by the court, instructions at
request of defendant's counsel, verdict, motion in arrest of judgment, minutes of the court,
commitment, order, notice of appeal, are true and correct and original record in my office,
and this is a true and correct transcript of appeal herein. Witness my hand and seal of said
court this 30th day of June, 1909. Joseph Hamilton, Clerk, by Benj. Rosenthal, Deputy
Clerk.
It will be observed from the foregoing certificate that it does not attempt to cover the other
volume of the record. The attorney-general, in pursuance of the provision of rule 8 of this
court, has interposed a number of objections to the transcript on appeal affecting the right of
appellant to be heard upon the points discussed in the brief, only one of which objections we
deem necessary to consider, to wit: (4) That the pretended record or transcript on appeal has
not been duly authenticated or certified by the clerk of the district court in the manner
prescribed by law, and that a portion of the record or transcript on appeal has not been
authenticated or certified by the clerk of the district court in any way or manner, and the same
is totally uncertified and unauthenticated, and is of no legal force or value.
32 Nev. 185, 187 (1909) State v. Hill
Rule 7 of this court provides: 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.
In spite of the fact that the objection was properly raised to the consideration of this
uncertified volume of the record, no attempt was made to remedy the defect. This court has
adopted a liberal practice in the granting of applications to amend defects in transcripts, but
where no move is made to obviate a valid objection, there is no other alternative than to grant
it.
A bill of exceptions, when properly settled, should be filed, and it then becomes a part of
the record of the action. (Comp. Laws, 4390, 4415; State v. Ah Mook, 12 Nev. 369; State v.
Rover, 13 Nev. 17; State v. Bouton, 26 Nev. 34.) In the case of State v. Bouton, supra, this
court said: The papers that constitute the record in a criminal case, under sections 4415,
4445, Comp. Laws, were attached together, and filed with the clerk of this court. We will
regard them as though they were properly certified, as there is no intimation that they are not
what they purport to be. We again call attention to An act regulating appeals to the supreme
court' (Comp. Laws, 3856), and to the several decisions of this court as to the proper
authentication of the record on appeal. (Holmes v. Mining Co., 23 Nev. 23; Streeter v.
Johnson, 23 Nev. 194; Peers v. Reed, 23 Nev. 404; Becker v. Becker, 24 Nev. 476.) It is the
duty of the appellant in all appeals to furnish this court with a record properly certified. When
proper attention is paid to the above statute, motions to dismiss appeals on the ground of
defective certificates, and motions for leave to withdraw the records for the purpose of having
them properly certified, will not be of such frequent occurrence as heretofore, and delay and
unnecessary expense with respect thereto will be avoided.
It is clear that we can only consider the volume certified to be a true and correct transcript
of appeal herein. As we said in Kirman v. Johnson, 30 Nev. 151: It may be contended that
it was the fault of the clerk in sending up a record of this kind; but, even if that be so in
the strict sense of the law, nevertheless it would be better for counsel to see that clerks
send up proper transcripts."
32 Nev. 185, 188 (1909) State v. Hill
that it was the fault of the clerk in sending up a record of this kind; but, even if that be so in
the strict sense of the law, nevertheless it would be better for counsel to see that clerks send
up proper transcripts. If counsel in all cases will adopt the only safe practice of looking over
transcripts on appeal and making certain themselves that they comply with the provisions of
the statute, before they are transmitted to this court by the clerk of the lower court, they will
not only avoid much trouble for themselves and this court, but will obviate largely the danger
of their client's case not being heard upon its merits. Clerks are not usually lawyers, and
unless they receive some assistance or direction in the preparation of transcripts upon appeal,
errors are very apt to be made.
Counsel for appellant in his brief has argued two questions, which, if they could be
considered, present substantially the same proposition of law. The first relates to the
construction to be placed upon a contract under the provisions of which the property alleged
to have been embezzled was delivered to the defendant; and the second, to an instruction
given by the court of its own motion. The contract is not in the record certified to this court,
and hence is not before us for consideration. The instruction complained of was never
included in a bill of exceptions either certified to this court or otherwise. This court has
repeatedly held that instructions given by the court of its own motion are not a part of the
record on appeal unless embodied in a bill of exceptions. (Comp. Laws, 4415; State v. Ah
Mook, supra; State v. Forsha, 8 Nev. 137; State v. Burns, 8 Nev. 251; State v. Rover, supra.)
The distinction which the statute makes between instructions asked for and those given by
the court of its own motion (Comp. Laws, 4415) is not, in my judgment, based upon any
substantial reason, and is wholly arbitrary. If the legislature will amend the section so that the
clause which now reads, SeventhThe written charges asked of the court, if there be any,
will be made to read: SeventhThe written charges given and refused by the courtthe
practice will be simplified, and this court will not be required so frequently to hold that it
cannot review instructions actually given by the court.
32 Nev. 185, 189 (1909) State v. Hill
As no error appears in the record properly before us, the judgment must be affirmed.
It is so ordered.
____________
32 Nev. 189, 189 (1909) State v. District Court
[No. 1851]
THE STATE OF NEVADA, ex rel. J. E. KERR and THE QUEEN REGENT MINING
COMPANY, a Corporation, Relators, v. THE SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, and the
HONORABLE W. H. A. PIKE, One of the Judges Thereof, Respondents.
1. CertiorariGrounds for WritErrorsVacating Default Judgment.
Under civil practice act, sec. 68 (Comp. Laws, 3163), permitting the court, in furtherance of justice, to
relieve a party from a judgment or order taken against him through his mistake, inadvertence, surprise, or
excusable neglect, the trial court had jurisdiction to set aside, by an order of May 25th, a default judgment
for defendant entered on March 11th, upon motion thereof on the ground that plaintiff had no notice of the
time of trial or entry of judgment until ten days after its entry, and hence certiorari will not lie to review its
action in doing so; certiorari being available to review the order of an inferior tribunal only so far as to
determine whether it had jurisdiction to make it, error in the order or the proceedings not being reviewable.
Original proceeding. Application for certiorari by the state, on relation of J. E. Kerr and
another, against the Second Judicial District Court of the State of Nevada for the County of
Washoe, and the Honorable W. H. A. Pike, a Judge thereof. Application denied.
James Glynn, for Relators.
Sylvester S. Downer, for Respondent.
Upon the petition of relators asking for a writ of certiorari to review and annul the action
of the trial court making a certain order in the above-entitled district court in the
above-entitled case, this court made an order requiring the respondent judge to show cause
why the writ should not issue as prayed for.
as prayed for. The return to the order shows that the Wonder Witch Mining Company brought
suit against J. E. Kerr and the Queen Regent Mining Company for the recovery of $688.50,
balance due on a hoist and equipment therefor, delivered to the defendants. The defendants
duly answered the summons, and the case was set for trial for Monday, March 1, 1909, at 10
o'clock a. m. It appears that other business required the attention of the judge of said court at
Winnemucca, and the case was continued until 10:30 o'clock on March 11, 1909. On March
11, 1909, the defendants and attorneys were present but neither plaintiff nor its attorneys
appeared, whereupon J. E. Kerr was sworn and testified on the part of the defendants, and
the court being fully advised in the premises ordered that plaintiff take nothing by this action,
and the defendants have judgment for costs of suit. On motion of defendants, it was ordered
that the attachment heretofore issued by the plaintiff be released. Whereupon a recess was
taken until the further order of the court. W. H. A. Pike, District Judge.
Thereafter, on the 30th day of March, 1909, the plaintiffs made the following motion to
vacate the judgment and reopen the cause: Comes now the above-named plaintiff, the
Wonder Witch Mining Company, by Fred W. Heath and Edward C. O'Brien, its attorneys,
and moves the court for an order setting aside and vacating the judgment rendered in said
cause, and reopening the case, reinstating the same upon the trial calendar of the court, and
allowing a trial thereon, for the reason that neither plaintiff nor its agents, officers, or
attorneys had any notice whatever of the time of the trial of said cause, or the entry of
judgment therein until about ten days after the entry thereof. That in support of this motion
plaintiff tenders herewith the affidavits of one of its counsel and John E. Pelton and Walter E.
Trent as to said trial being had without notice and an affidavit of meritorious cause of action.
Edward C. O'Brien, Fred W. Heath, attorneys for plaintiff.
Affidavits were introduced in behalf of both plaintiffs and defendants, insisting pro and
con as to plaintiff's attorneys having notice of the time set for trial, and, after hearing the
same and arguments of counsel, the minutes of the court of May 25, 1909, contain the
following: "The Wonder Witch Mining Co., plaintiff, v. J. E. Kerr, et al., defendants.
same and arguments of counsel, the minutes of the court of May 25, 1909, contain the
following: The Wonder Witch Mining Co., plaintiff, v. J. E. Kerr, et al., defendants. This
being the time to which the motion to set aside default judgment was continued. The court at
this time rendered its decision on the plaintiff's motion to set aside default judgment, and
ordered that the motion be allowed, and the case replaced upon the trial calendar. Whereupon
a recess was taken until the further order of the court. W. H. A. Pike, District Judge.
Thereafter the attorneys for the defendants made the following motion: The Wonder
Witch Mining Co., plaintiff, v. J. E. Kerr, et al., defendants. To the plaintiff and its
attorneysYou and each of you will please take notice that on Monday, the 14th day of June,
1909, at the hour of 10 a.m., or as soon thereafter as counsel can be heard, at the court-house
of Washoe, State of Nevada, the defendants will move the court that an order be made and
entered in the above-entitled action reopening the order of the said court heretofore made and
entered in the above-entitled action setting aside the judgment rendered in favor of the
defendants and against the plaintiff, which said order was made on the 25th day of May,
1909, and also setting aside the said order and annulling the same, that said motion be opened
for further hearing, and that the said motion be denied, and that such order and further order
be entered as to the court may seem just and proper, and that general relief in the premises be
granted to the defendants. Said motion will be made on the grounds: That the said
above-entitled court had no jurisdiction to enter the said order. That the said order was
improperly and inadvertently made by the said court. That the court had no power or authority
to enter the said order. That the said judgment in favor of the defendants and against the
plaintiffs is still in full force, effect, and virtue, and cannot be affected by the motion or order
based thereon, made as aforesaid on the said 25th day of May, 1909, and upon such other
grounds as may appear legal and proper at the hearing of this motion. Said motion will be
made and based upon the judgment papers and records on file in said action and oral
testimony to be adduced at the hearing thereof. Charles G. Nagle, attorney for defendants.
On June 1, 1909, the minutes of the court discloses the following proceedings: The
Wonder Witch Mining Company v. J. E. Kerr, et al. (No. 6,236). This being the time set for
the hearing of the defendant's motion to set aside the order of the court heretofore made
setting aside default judgment. The motion was argued by the attorneys for the respective
parties, and the court being fully advised in the premises ordered that the motion be, and the
same is hereby, denied. The defendant moved the court for a nunc pro tunc order. That the
case was regularly continued from March 1, 1909, to March 11, 1909, for trial. The motion
was denied by the court. The defendants excepted to the ruling of the court on the grounds
stated in the motion, and on the further ground that the motion setting aside default judgment
was, and is, void. Whereupon a recess was taken until the further order of the court. John S.
Orr, District Judge. W. H. A. Pike, Judge.
The question to be determined in this proceeding is whether or not the court had the
authority, upon the showing made, to set aside the order made on March 11th. Section 68 of
our civil practice act (Comp. Laws, 3163), among other things, provides: The court may, in
furtherance of justice * * * upon such terms as may be just, and upon payment of costs relieve
a party or his legal representatives from a judgment, order, or other proceeding taken against
him through his mistake, inadvertence, surprise, or excusable neglect. * * * Under this
section we believe the court had jurisdiction to make the order complained of. Being of this
opinion, the application for a writ of certiorari must be denied. As was said in the recent case
of Kapp v. District Court of Seventh Judicial District (32 Nev. 444): This court has
repeatedly and uniformly held that the inquiry upon the writ of certiorari will not be extended
further than to determine whether the inferior tribunal has jurisdiction to make the orders
complained of, and that if the record discloses it has complete jurisdiction, any error in the
order of the court will not be considered. (Maynard v. Railey, 2 Nev. 313; State v. County
Comrs. of Washoe County, 5 Nev. 317; State ex rel. Fall v. County Comrs. of Humboldt
County, 6 Nev. 100; State ex rel Mason v. County Comrs. of Ormsby County, 7 Nev. 392;
Hetzel v. County Cmrs.
of Eureka County, 8 Nev. 359; Maxwell v. Rives, 11 Nev. 213; In re Wixom, 12 Nev. 219;
State v. District Court, 16 Nev. 76; State v. District Court, 26 Nev. 253; Florence Goldfield
M. Co. v. First Judicial Dist. Court of Nev., 30 Nev. 391; 4 Ency. Pl. & Pr. 127.)
The question of whether or not the court at the time of making the order complained of
should not have allowed defendants its costs and expenses incurred to the time of the hearing
can only be considered on appeal, and not in this proceeding.
The application for a writ of certiorari is denied. It is so ordered.
____________
32 Nev. 197, 197 (1910)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JANUARY TERM, 1910
____________
32 Nev. 197, 197 (1910) State v. Martin
[No. 1846]
THE STATE OF NEVADA, ex rel. J. G. KAUFMAN, M. E. LEAVITT, and E. R. LAM,
Relators, v. C. T. MARTIN, BYRON GATES and I. A. STROSNIDER, Constituting the
Board of County Commissioners of Lyon County, Nevada, Respondents.
1. CountiesChange of County-SeatPetitionStatutes.
Comp. Laws, 5007, requiring an election for the removal of the county-seat when three-fifths of the
qualified electors of the county, each elector being a taxpayer thereof as appears by the last assessment roll,
who have taken the oath for registration of electors, shall petition the county commissioners thereof, and
section 5010, providing that every petition shall be accompanied by the certificate of the registry agent
where the petitioners reside, showing that they are qualified electors, as appears by the registry list, or by
affidavits filed in his office of persons not registered at the last general or special election, but who are
qualified electors, require a petitioner to be a taxpayer whose name appears upon the last assessment roll
and requires him to be a qualified elector, and the fact that one may have failed to register for a special
election does not disqualify him where he possesses the substantial qualifications and is a taxpayer and
voter as indicated.
2. CountiesChange of County-SeatPetitionStatutesTaxpayer.
Persons who appear on the assessment roll as paying taxes only in a partnership capacity are taxpayers
within Comp. Laws, 5007, providing for the removal of a county-seat on three-fifths of the qualified
electors of the county, each elector being a taxpayer thereof, petitioning therefor.
On Rehearing
1. StatutesConstruction.
Where different meaning may reasonably be given to a statute, the one should be applied which will make
it effective and not nullify it.
2. CountiesCounty-SeatsElectionsPetition.
Under Comp. Laws, 5007, providing that, when three-fifths of the qualified electors of a county petition
for the removal of the location of the county-seat, the county commissioners shall order an election, and the
place receiving the majority of votes cast shall be declared the county-seat, and, if no place receives a
majority, a second election shall be held, etc., a petition for the removal of the county-seat which alleges
every statutory requirement is not void because it also asks that an election be called to determine whether
the county-seat shall be removed to a particular place, and the county commissioners may ignore the
reference to the particular place and proceed to call an election without designating any place for which the
votes are to be cast.
Original proceeding. Mandamus by the State, on the relation of J. G. Kaufman and others,
against C. T. Martin and others, constituting the Board of County Commissioners of Lyon
County. Application denied.
Huskey & Springer, for Relators:
I. In the present case we might say the proposition, therefore, must go to this extent: That
the county commissioners are clothed with absolute and despotic authority over the rights of
the petitioners. If the determination of the county commissioners be not final, then the writ
must issue; for under the law the failure to act on the petition brings the proceeding to a
complete stop, and there is no other remedy in law or equity.
The case of People v. Alameda County, 45 Cal. 395, involves the construction of the
California law on the subject of removal of county-seats. That law, like our statute of March
2, 1867, on the subject, provides no criterion for determining the sufficiency of the petition
for an election, but leaves it to the discretion of the board of supervisors. That case, like the
present one, was an application for a writ of mandamus, to compel the board to call the
election. The answer alleged that the board was not satisfied from the proof offered that the
petition was sufficient. The court considered this no defense and ordered a reference to a
district court to try and determine the question of the sufficiency of the petition.
defense and ordered a reference to a district court to try and determine the question of the
sufficiency of the petition.
In Stockton Railroad Co. v. Stockton, 51 Cal. 328, a writ of mandamus was granted to
compel the City of Stockton to deliver certain bonds.
This case also proceeds on the theory that by nonuser of his discretionary powers of
investigation the discretion of the governor in the premises ceased and the duty became
ministerial, the petition being in fact sufficient. In all of these cases the distinction between
the discretion to determine preliminary facts and discretion in doing the act ordered by statute
when the preliminary facts have been determined in favor of doing the act is continually kept
in sight.
In Good v. Common Council, 90 Pac. 45, an application was made for mandamus to
compel the calling of an election. In this case, also, the statute provided that the election was
to be called upon the presentation of a petition. The common council voted to disregard said
petition and to table and file the same without action. Evidently the California court did not
consider the respondents' power exhausted by this act, in conformity with the theory
advanced by respondents in the present case, for it granted the writ and ordered the election to
be called. In this case also the election was ordered called after the time fixed by statute
therefor had expired.
We ask, why, if a board of county commissioners, upon a mistaken view of the law,
refuses to do an act enjoined upon it by law, should it be treated differently from a district
court under the same circumstances?
Whether the Eureka County commissioners case has been overruled or not, it has no
application in the present case. Whatever discretion as to the determination of preliminary
fact was vested in the commissioners by the statute construed in the Eureka County
commissioners case, certainly there can be no question that no discretion whatever is
conferred upon respondents by the statute of March 2, 1877.
In Esmeralda County v. District Court, 18 Nev. 438, this court decided the specific
proposition that the determination of a fact by reference to the assessment roll is a ministerial
and not a judicial act.
Where an officer or board is under a clear ministerial duty to give notice of and order an
election, mandamus lies to compel the performance of that duty. (Rizer v. People, 18 Colo.
App. 40, 69 Pac. 315; McConihe v. State, 17 Fla. 238; People v. Fairbury, 51 Ill. 149;
Glencoe v. People, 78 Ill. 382; State v. New Orleans, 52 La. Ann. 1604, 28 So. 116; State v.
St. Louis School Board, 131 Mo. 505, 33 S. W. 3; Morris v. Wrightson, 56 N. J. L. 126;
People v. Brooklyn, 77 N. Y. 503; State v. Young, 6 S. D. 406, 61 N. W. 165; Kimberly v.
Morris, 87 Tex. 637, 31 S. W. 808; Jenney v. Alden, 64 Atl. 609; State v. Hinckle, 111 N. W.
217; State v. Crabtree, 35 Neb. 106, 52 N. W. 842.)
But if such board wrongfully fails, neglects or refuses to cause the election to be held
within the statutory period, while the board has no further power, within itself, to cause the
election to be held thereafter, the supreme court may, at the instance of the petitioners whose
prayer for an election has been refused, compel such election to be held after the expiration of
the statutory period. (State v. Patterson, 207 Mo. 129; Good v. Common Council, 90 Pac. 45;
Mann v. Mercer County Court, 52 S. E. 776; McConihe v. Florida, 17 FLA. 238; State v.
Young, 6 S. D. 406; People v. Common Council of Brooklyn, 77 N. Y. 503, 33 Am. Rep. 659;
People v. Town of Fairbury, 51 Ill. 150; State v. Board of Commissioners, 39 Kan. 293;
Coleman v. People, 7 Colo. App. 243.)
II. The statute requires only three-fifths of the taxpaying electors of the county, as shown
by the assessment rolls, to sign the petition, not three-fifths of all of the electors.
The words Whenever three-fifths of the qualified electors of any county, each elector
being a taxpayer, * * * shall petition, etc. (Comp. Laws, 5007), are not ambiguous. They are
susceptible to but one meaning, and that is: Whenever three-fifths of the taxpaying electors
shall petition.
The construction or composition is crude and cumbersome; but a little thought and the
application of the ordinary rules of grammatical analysis will show that the meaning is
unequivocal. Whenever three-fifths of the qualified electors of any countywhat specific
qualified electors of the county are referred to? The succeeding clause, inserted between
commas, answers this question: each elector being a taxpayer."
payer. That is, each of the qualified electors referred to, from which the three-fifths are to be
selected, must belong to the taxpaying class. The meaning would have been the same had the
following construction been used: Whenever three-fifths of the qualified electors of any
county (such qualified electors being taxpayers) shall petition, etc. The words each elector
being a taxpayer are inserted, not as a limitation on three-fifths, but as a limitation on the
words qualified electors. They serve merely to further limit and designate the class of
electors meant and the class from which the three-fifths are to be chosen, viz: the electors
who are qualified and who are also taxpayers.
III. A statute is to be construed so as to carry out the intent of the legislature, though such
construction may seem contrary to the letter of the statute. (Sutherland on Statutory
Construction, 2d ed. secs. 517, 363, 364; Howes v. Abbot, 20 Pac. 572; Burton v. Todd, 9
Pac. 663; Smith v. Randall, 65 Am. Dec. 475; Calaveras Co. v. Brockway, 30 Cal. 325;
Knowles v. Yates, 31 Cal. 82; Kinsey v. Kellogg, 3 Pac. 405; Stockton School Dist. v. Wright,
66 Pac. 34; Thompson v. State, 20 Ala. 54; Inhabitants of Gray v. Cumberland Co. Comrs.,
22 Atl. 376; People v. Lacombe, 1 N. E. 599; Territory v. Clark, 35 Pac. 882; Baring v.
Erdman, Fed. Cases No. 981; City of Evansville v. Summers, 9 N. E. 81.)
IV. We invite the attention of the court to the general rule of statutory construction that
where a question of construction is before the court, words and phrases may be transposed
and grammatical sense does not always control. (Idem, sec. 367.)
C. H. Miller and Mack & Green, for Respondents:
I. It has repeatedly and uniformly been held by this court that mandamus does not lie to
review or control the exercise of judicial functions. (State, ex rel. Office Specialty Co., v.
Curler, 26 Nev. 347; State v. Commissioners, 8 Nev. 309; Harpin v. Guthrie, 26 Nev. 246;
State v. Wright, 4 Nev. 119; Hoole v. Kinkead, 16 Nev. 217; State v. Murphy, 18 Nev. 89;
State v. Green Co. Commissioners, 119 Ind. 444.) An examination of the authorities cited by
relators will disclose that in all of the cases cited the board, officers or inferior tribunal
either refused to act at all, or acted upon an erroneous construction of the law, against
the consequences of which error the petitioner has no plain, speedy and adequate
remedy.
cases cited the board, officers or inferior tribunal either refused to act at all, or acted upon an
erroneous construction of the law, against the consequences of which error the petitioner has
no plain, speedy and adequate remedy. In this case none of these prerequisites are present,
and the writ of mandamus would not be an appropriate remedy, even in the states where the
cases cited by relators were decided.
II. Assuming for the sake of argument that the relators' construction of the statute is
correct, and the construction applied by the board is incorrect, equity would grant ample
relief, whether the decision of the board resulted from fraud or mistake. An erroneous
construction of the law, entirely independent of any motives that may have prompted it,
would constitute constructive fraud, or fraud in law, against the consequence of which equity
will relieve.
To entitle a relator to a writ of mandamus, his right must be a clear legal one. Mandamus
will never issue to enforce an equitable right. (13 Ency. Pl. & Pr. 496; and cases cited; 26
Cyc. 151.)
III. The writ of mandamus was never designed to displace or supersede other legal or
equitable remedies. In an application for a writ of mandamus the relator must show a clear
legal right to the relief demanded. (State v. Noyes, 25 Nev. 32; State v. Stoddard, 25 Nev.
452; Pyne v. LaGrave, 22 Nev. 417; State v. Boerlin, 98 Pac. 402.)
The petition presented to the board was not sufficient to invoke the authority of the board
to call a special election. The petition prayed for a special election to move the county-seat of
Lyon County from the Town of Dayton to the City of Yerington. Under the law, no election
could be held for such purpose, and the board was perfectly right in denying the petition. The
law authorizes the filing of a petition to move the county-seat merelynot to move it to a
particular place, for that is a question to be determined by the voters; and was it not right for
the board of county commissioners to deny the petition under these circumstances, regardless
of whether it contained the requisite number of names or not? For there can be no
presumption indulged by the board of county commissioners that the signers of the petition
could have been induced to sign the petition under any other condition that that the
election would be held for the purpose of moving the county-seat from the Town of
Dayton to the City of Yerington.
have been induced to sign the petition under any other condition that that the election would
be held for the purpose of moving the county-seat from the Town of Dayton to the City of
Yerington. Relators affirm that the prayer for a removal to the City of Yerington is but a
surplusage; and could it be said that it would have been fair for the board of county
commissioners of Lyon County to call a special election on the petition of qualified electors
and taxpayers of said county who had been induced to sign it under the guise that the City of
Yerington would become the county-seat and under no other consideration? Obviously, the
relators have petitioned for one thing and are asking this court to mandamus the board to do
another and different thing than that sought to be accomplished by the signers of the petition,
which alone gives the board jurisdiction to act.
IV. It has been repeatedly held by this court that mandamus would issue to compel an
inferior officer, board or tribunal to act, but never would be issued to direct them how to act
or to compel them to act in any particular way. (Hardin v. Guthrie, 26 Nev. 225; State v.
Wright, 4 Nev. 123; Hoole v. Kinkead, 16 Nev. 222; State v. Boerlin, 98 Pac. 402.) How then
may this court direct the board to act, and how may it act without such direction? In other
words, what date would or could this court fix for such election? And how could the board,
not being directed to call an election, fix a date for the holding of such election? And what
law enjoins upon them a duty to notice an election for a particular date, the time provided by
law for the holding of such election having expired? Where the language is plain, clear and
unambiguous, there is no room for construction or interpretation. (Brown v. Davis, 1 Nev.
409; Wall v. Blaisdell, 4 Nev. 241; Fitch v. Elko Co., 8 Nev. 271; Hess v. Commissioners, 6
Nev. 104; V. & T. R. R. Co. v. Lyon County, 6 Nev. 68; Lewis v. Doron, 5 Nev. 400; Odd
Fellows Bank v. Quillen, 11 Nev. 109; Sutherland, sec. 408.)
Per Curiam:
The question presented is whether the petition presented to the board of county
commissioners of Lyon County is signed by a sufficient number of qualified taxpayer electors
to require the calling of an election to determine whether the county-seat shall be moved.
require the calling of an election to determine whether the county-seat shall be moved.
Section 5007 of the Compiled Laws provides: Section 1. Whenever three-fifths of the
qualified electors of any county of this state, each elector being a taxpayer of said county, as
appears by the last assessment roll, who have taken and subscribed to the oath or affirmation
prescribed by law for the registration of electors in this state, shall petition the board of
county commissioners of such county for the removal or location of the seat of justice of said
county, the said county commissioners shall, within sixty days thereafter, cause an election to
be held. * * * The place receiving a majority of all the votes cast at such election shall be
declared the county-seat.
And section 5010 provides: Sec. 4. Every petition for the purpose mentioned in section
one of this act shall be accompanied by the certificate of the registry agent of the district
where the persons signing such petition reside, showing that all the persons whose names are
signed to said petition are qualified electors of said county, as appears by the registry list of
said district, or the affidavits on file in his office of persons not registered at the last general
or special election, but who are qualified electors of said county.
It is admitted that the signers of the petition who were on the last assessment roll
numbered less than three-fifths of the taxpaying electors whose names appear on both the
registry list of the last general election, held in 1908, and on the registry list of the last special
election, held in February, 1909; but the number of these petitioners is more than three-fifths
of the taxpaying electors registered at the special election, and on behalf of the relators it is
contended that this is sufficient, that the lists at the special election being the latest and only
ones for the election of 1907 are the lists for that year, and control and supersede the lists of
the general election held in the previous fall. After a careful reading of the statute, we are not
inclined to adopt this view, and we think the language quoted should be given a broader
construction, as evidently intended by the legislature. It will be noticed that the language in
section 1 of the act that whenever three-fifths of the qualified electors, each elector being a
taxpayer of said county, as appears by the last assessment roll, who have taken or
subscribed to the oath or affirmation prescribed by law for the registration of electors in
this state, shall petition," and section 4, do not make a limitation to the lists of a special
election, nor does any other language in the statute.
qualified electors, each elector being a taxpayer of said county, as appears by the last
assessment roll, who have taken or subscribed to the oath or affirmation prescribed by law for
the registration of electors in this state, shall petition, and section 4, do not make a limitation
to the lists of a special election, nor does any other language in the statute. The construction
for which relators contend would be equivalent to interpolating, after the words last
assessment roll, in section 1, or in section 4, and as appears by the registry list of the last
election, whether general or special. By a fair construction of the language in section 4, as
appears by the registry list of said district, or the affidavits on file in his office of persons not
registered at the general or special election, but who are qualified electors, it was evidently
intended to include the names appearing on the lists of both the general and special election
and of persons making and filing the affidavit required for registration. The qualifications of a
petitioner are that he be a taxpayer whose name appears on the last assessment roll, and that it
be shown by the lists of the last general or special election or by affidavit that he is a qualified
elector. We do not think the fact that he may have failed for any reason to register for a
special election, as in effect claimed by relators, should disqualify him if he possesses the
substantial qualifications and is a taxpayer and voter as indicated.
The question has been raised regarding the forty-two persons who appear on the roll as
paying taxes only in a partnership capacity. Under the language and purpose of the statute
their names should be included, for it provides for all taxpaying electors whose names appear
on the last assessment roll, without any limitation as to whether they pay taxes individually or
as partners. In either instance their names appear, and we see no good reason why one whose
name appears as a member of a large merchandising, farming, stock-raising, or other business
firm should not be considered and included as well as one who may be taxed only on a town
lot valued at a trifling amount.
Extensive argument has been made regarding the right of twenty-one of the petitioners to
withdraw their names and of thirteen of these to rescind their withdrawal and allow their
names to stand on the original petition, and a number of cases have been cited sustaining
such right; but it is not necessary for us to consider at length or determine this question,
for, regardless of any such right of withdrawal or rescission, the petition lacks the support
of the necessary three-fifths of the taxpaying electors appearing on the last assessment
roll.
names to stand on the original petition, and a number of cases have been cited sustaining such
right; but it is not necessary for us to consider at length or determine this question, for,
regardless of any such right of withdrawal or rescission, the petition lacks the support of the
necessary three-fifths of the taxpaying electors appearing on the last assessment roll.
Application for the writ is denied.
On Rehearing
Per Curiam:
In an able and extended petition for rehearing, it is urged that the court is in effect giving a
meaning to the statute contrary to the words it contains. We are unable to agree with this
contention and still feel satisfied with our former construction of the section in question for
the two reasons: That we believe that the construction we have given it is the most natural
and grammatical one, and if this were not so, and different meanings could be reasonably
given it, still that one should be applied which would make effective and not nullify the
statute as held in the opinion.
We are asked to again consider one objection made regarding which we did not give
particular attention in the opinion. According to the allegations, the petition presented by the
taxpaying electors to the board of county commissioners asks that a special election be held to
move the county-seat from the Town of Dayton to the City of Yerington. It is claimed that
under the law no election could be held for that purpose, and that the board was right in
denying the petition, for the statute in question did not authorize an election for any such
purpose, but only an election to determine the question of removal of the county-seat. It is
said that, if this petition invested them with any jurisdiction at all, it was for the purpose of
calling an election to remove the county-seat to Yerington, and as the statute did not authorize
the board to limit the determination of the question to any particular place in the county, and
has left the matter with the people, the board was not invested with the authority to call an
election for any purpose. It is said that relators have petitioned for one thing, and are asking
this court to do another and different thing by mandamus than that sought to be
accomplished by the signers of the petition, and that it cannot be presumed by the board
or by the court that the signers of the petition would have been induced to sign under any
other condition than that the election would be held for the purpose of removing the
county-seat to the City of Yerington.
damus than that sought to be accomplished by the signers of the petition, and that it cannot be
presumed by the board or by the court that the signers of the petition would have been
induced to sign under any other condition than that the election would be held for the purpose
of removing the county-seat to the City of Yerington.
Under this contention the question arises whether a petition which alleges everything
required by statute, and which asks for the removal of the county-seat and is signed by the
requisite number of voters, becomes vitiated because it goes further and asks that an election
be called to determine whether the county-seat shall be removed to a particular place, when
the statute does not provide that the place shall be mentioned, nor that it shall not be
mentioned.
According to the allegations, the petition signed by the electors contained everything
required, under section 5007 of the Compiled Laws, providing that when the necessary
number of taxpaying electors shall petition the board of county commissioners of such
county for the removal or location of the seat of justice of said county, the said county
commissioners * * * shall cause an election to be held. * * * Was the fact that the petition
asked for an election regarding removal and requested that an election be called to determine
whether the county-seat should not only be removed, but whether it should be removed to the
City of Yerington, fatal to the petition, when the later language in the section provides: The
place receiving a majority of all the votes cast at such election shall be declared the
county-seat; provided, that if no place receive a majority of the votes cast, there shall be held
a second election, * * * at which the balloting for the seat of justice shall be confined to the
two places having the highest number of votes at the first election? It appears from these
provisions that after the petition is filed and election ordered, the law places the determination
of whether the county-seat shall be removed and the place to where it shall be removed, if it
is to be removed, with the majority of the votes cast at the election, provided that, if no place
has a majority, a second election shall be held confined to the two places having the highest
number of votes at the first election.
The selection of the place for the county-seat could be made only by the majority of the voters
at the election.
As the law which every one is required to know controls, and as it is alleged that the
petition is signed by the requisite number of taxpayers, asking for a special election to
determine whether the county-seat shall be removed, and states all that is required by the
statute, we think the fact that it goes further and asks that an election be held to determine
whether the county-seat shall be removed to the City of Yerington, and contains in this regard
a matter not required to be stated in, and which it would have been better to omit from, the
petition, and which is governed by the law itself, does not make the petition void for the
reason that the reference to the City of Yerington may be rejected as surplusage and of no
effect as being in conflict with the section in question. The board could ignore the
superfluous reference to the City of Yerington and act upon the other parts of the petition
which, without this reference, stated everything required by the statute, and could have
proceeded to call the election, without designating any place for which the votes were to be
cast; but if, following the petition, the board had called an election to determine whether the
county-seat should be removed, when the statute contemplates that the place shall not be
mentioned, a majority of the electors by their votes would, nevertheless, have had the right to
determine where the county-seat should be removed, and this control of the election for the
county-seat, being finally placed with a majority of the voters by law, could not be lessened
or affected by the unnecessary reference to the City of Yerington contained in the original
petition which met the essential requirement of the act of the legislature, because the petition
for an election of three-fifths of the voters who paid taxes would meet this requirement.
If the necessary number of taxpayers wanted to have the county-seat changed to the City of
Yerington, there was certainly as much need for an election, and as great, if not more,
probability that the election would result in a change, then if the requisite number of signers
of the petition were divided as to the place of removal, so that different parts of them wanted
to have the county-seat removed to different places.
them wanted to have the county-seat removed to different places. It is natural to conclude that
the electors who signed the petition seeking a removal to Yerington would sign one omitting
the request as to the place, when the law would finally allow them to vote for Yerington; and
for us to hold that the petition is void by reason of its reference to the City of Yerington might
simply result in having the same signers join in a new petition omitting such reference. If it be
conceded that the petition must allege everything required by the statute, we think that a
further statement not required, asking that an election be called to determine whether the
county-seat shall be removed to the City of Yerington, which would not affect the result nor
injure any one concerned, does not necessarily vitiate the petition. If the board proceeded to
call an election as directed by the statute, which speaks of its duties, omitting any reference to
Yerington in the call, the voters would have the same privilege under the law of determining
whether the county-seat should be removed to Yerington or some other place, as if the
reference to which objection is made had been omitted from the petition.
If the petition had not made any reference to the City of Yerington, it could still be
presumed that the signers, being taxpayers, desired to have the county-seat removed from
Dayton to some other place or places in the county, or else they would not have asked for an
election towards the expense of which they would have to contribute. So long as they desired
and petitioned for an election to determine whether there should be a removal, and the
petition contained everything required by the letter of the statute, the further statement that
the petitioners desired to have an election to determine whether the county-seat should be
removed to the City of Yerington was quite as fully within the purpose and spirit of the act as
if there had been no reference to the place, with the inference still remaining that they desired
a removal to some new place or places. The presumption being that they wished removal, the
statement in the petition that they all desired a removal to the City of Yerington does not
seem to us to be any good reason why the election should not be held, when there would be as
much need for holding it as if there had been no reference to the place in the petition, and
the inference would prevail either that they all wanted removal to the City of Yerington,
or, which would show even a less necessity for an election, that different signers desired
a removal to different places.
reference to the place in the petition, and the inference would prevail either that they all
wanted removal to the City of Yerington, or, which would show even a less necessity for an
election, that different signers desired a removal to different places.
The statute regarding removal of county-seats are different from ours in many of the states,
and we find only one case directly in point, and that is based on a Texas statute similar in
principle to ours in so far as it relates to the question involved; but courts usually hold that the
insertion of unnecessary matter, which may be contrary to law, which will not affect the
interests of the litigants, or change the final result, will not render the petition, complaint, or
other instrument void.
After reviewing a number of cases, in Ex Parte Tani, 29 Nev. 387, 13 L. R. A. (N. S.) 518,
we held that the part of the judgment of a court fixing the state prison for serving a sentence
should be rejected as surplusage when in conflict with the statute which fixes the county jail
as the place of punishment for the particular offense, on the theory that what is fixed by law
will prevail, regardless of the mistake of the court or the contrary statement in the judgment.
(In re Bonner, 151 U. S. 258, 14 Sup. Ct. 323, 38 L. Ed. 149.)
In Whitaker v. Dillard, 81 Tex. 363, 16 S. W. 1086, the petition was for an election to
determine whether the county-seat should be removed to the geographical center of Bowie
County. Although the statute, facts, and the conclusion of the court were analogous in
principle to the present case, the objection to the petition was the opposite to the one made
here, in that it was contended that the petition did not name any place to be voted for. The
court held that the statute did not require any place to be named in the petition, which is true
of our statute, but that the term, geographical center of Bowie County designated the place
sufficiently when used by the voters, from which it follows that the petition there designated a
place to which removal was asked when the statute did not require it, and the election based
upon this petition was held to be legal. The court said: The application for election ordered
and held was one asking an election to determine whether the county-seat should remain at
Texarkana or be removed to the geographical center of Bowie County; and it is claimed
that the order for the election and the election were invalid, 'because the petition to the
county judge to order an election for removal of county-seat did not name any place to be
voted for, the geographical center not being a place as contemplated by the laws
authorizing the removal of county-seats'; and 'because there was no such place as the
geographical center at the date of the election, the said center had no visible material, or
physical existence at that time, and the voters did not and could not know for what place
nor where they were voting to remove the county-seat.'
county-seat should remain at Texarkana or be removed to the geographical center of Bowie
County; and it is claimed that the order for the election and the election were invalid,
because the petition to the county judge to order an election for removal of county-seat did
not name any place to be voted for, the geographical center not being a place as contemplated
by the laws authorizing the removal of county-seats'; and because there was no such place as
the geographical center at the date of the election, the said center had no visible material, or
physical existence at that time, and the voters did not and could not know for what place nor
where they were voting to remove the county-seat.'
We do not understand that the statute requires a petition for an election to remove a
county-seat, nor an order directing an election for that purpose, to state to what point it is
desired to remove a county-seat, nor that when an election for such purpose is ordered the
people may not vote to place the county-seat at any place that may suit them, just as fully as
they may select and vote for any person at a general election for county or state officers as
they please. Neither the application for the order for an election nor the order of the county
judge can restrict the right of the qualified voters to vote for as many places as they please.
The order must fix the time when and places where the election must be held, but it can place
no restriction on the right of any voter to vote for any place he may prefer. It does become
important, however, that the votes shall so designate the place voted for that it may be
identified, and thus the actual locality of the place selected for county-seat be determined. It is
contended that the words geographical center' should be restricted so as to mean nothing
more than the word point' when used in considering a geographical problem or
propositionsomething without length, breadth, or thickness, without magnitude or
partsfrom which it would follow that no place sufficient for the purposes of a county-seat
was selected. But it is obvious that such a meaning was not attributed to the words when used
with reference to the selection of a place for a county-seat, and that any person so voting must
have intended and desired to be understood as voting to locate the county-seat at a place
where the court-house and other public offices and buildings required by law could be
erectedat a place that would include the center of the county and have such area as was
necessary for all purposes for which county-seats are used and required by law to be
established and maintained.
where the court-house and other public offices and buildings required by law could be
erectedat a place that would include the center of the county and have such area as was
necessary for all purposes for which county-seats are used and required by law to be
established and maintained. The constitution provides that a majority of electors may remove
a county-seat from a point more than five miles from the geographical center of the county to
a point within five miles of such center'; but no person would contend that the word point,' as
here used, was used in any sense other than that usually attached to the word place.'
The Arkansas statute regarding the removal of county-seats requires that one-third of the
voters join in the petition and a designation and abstract of title, and terms and conditions of
the sale or donation. In Butler v. Mills, 61 Ark. 477, 33 S. W. 633, the court said: We are
clearly of the opinion that if all the petitions asking for removal, taken together, amount to
one-third of the voters of the county, the county court is authorized and required to order the
election, and that it makes no difference how many different papers or petitions contain these
names; the only requisite being that they all ask for removal, or enough of them to constitute
the one-third, and this without regard as to how any of them may stand on the other
proposition, namely, the place of location of the county-seat.
In Benton v. Nason, 26 Kan. 660, the court said: Several questions are presented, and yet
in none of them do we see anything prejudicial to the rights of the plaintiff in error, or which
justifies us in disturbing the decision of the lower court. The first question that arises is on the
language of the petitions filed with the county commissioners. One petition was for
permanently relocating the county-seat; the other was for permanently locating the
county-seat. Neither petition by itself had sufficient names. Counsel insists that the statutes
prescribe the form of the petition, which must be strictly followed. In this they are mistaken;
the statute gives no form, but simply declares that, upon petition of a certain number of the
legal electors, the commissioners shall order an election for the relocation of the county-seat.
All that is necessary is that the petition should distinctly express, in one form of language
or another, the wish of the petitioners, and upon that expressed wish it is the duty of the
commissioners to act."
necessary is that the petition should distinctly express, in one form of language or another, the
wish of the petitioners, and upon that expressed wish it is the duty of the commissioners to
act.
In Washington the statute provides that the petition for removal shall be signed by the
qualified electors of the county equal to the number of one-third of all the votes cast at the
last preceding general election, and that, in voting on the question, each elector must vote for
or against the place named in the petition, plainly designating the same on his ballot. In
Rickey v. Williams, 8 Wash. 479, 36 Pac. 480, it would seem that the court properly held that
the fact that the county commissioners made an order based on a proper petition for the
submission to the people of the question of the removal of the county-seat to the town named
in the petition did not authorize them to submit at the same election a proposition for its
removal to another town which did not contain the names of the necessary one-third of the
voters.
The petition for rehearing on demurrer is denied.
____________
32 Nev. 214, 214 (1910) Botsford v. Van Riper
[No. 1828]
CHARLES H. BOTSFORD, Appellant, v. L. C. VAN RIPER, JOSEPH HUTCHINSON,
JAMES DAVIS, J. P. LOFTUS and JAMES DAVIS, Doing Business Under the Firm
Name of LOFTUS & DAVIS; GOLDFIELD MOHAWK MINING COMPANY,
GOLDFIELD CONSOLIDATED MINES COMPANY, COMBINATION MINES
COMPANY, GEORGE S. NIXON and GEORGE WINGFIELD, Respondents.
1. Appeal and ErrorDismissalCuring DefectsPending Motion.
Where appellant, pending motion by respondent to dismiss appeal for defects in the record, obtains a
correction of the record pursuant to an order of court, the motion will be denied, as Supreme Court Rule
No. 7 providing that, to correct an error in the transcript either party may suggest the same, and obtain an
order that the clerk certify to the whole or any part of the record, has been substantially complied with.
2. Appeal and ErrorDefectsRecordWaiver.
By numerous stipulations between the parties extending the time in which to file briefs, which reserved
no right to object to the sufficiency of the record, respondent waived his right to move to dismiss or strike
matter from the record on any grounds that are not jurisdictional.
3. Appeal and ErrorRecordsMatters To Be Included.
The record, on appeal from any order denying a new trial, should contain only such papers as were used
or referred to on the hearing of the motion.
4. Appeal and ErrorBondsSurety Company Bonds.
The act of February 26, 1887 (Stats. 1887, p. 86, c. 84), as amended by Stats. 1903, p. 63, c. 42, provides
that any surety company shall, on satisfactory evidence of solvency and credit, be accepted as surety on the
bond of any person, corporation, or officer required by law to execute the bond, and no additional surety
may be exacted in the discretion of the official authorized to approve the same. Held, that an appeal bond
executed by a surety company and duly approved is valid, and takes the place of a bond in accordance with
Comp. Laws, 3436, 3443, requiring an undertaking on appeal to be furnished by two sureties.
5. Appeal and ErrorAppeal BondsSuretiesRepeal by ImplicationActs Relating to Same subject.
The act of February 26, 1887 (Stats. 1887, p. 86, c. 84), as amended by Stats. 1903, p. 63, c. 42,
authorizing the giving of bonds executed by a surety company as surety, is a general law, and does not
repeal the provisions of the civil practice act (Comp. Laws, 3436, 3443) for undertakings on appeal, but
only provides an additional method of furnishing such undertakings at the option of appellant.
Esmeralda County; J. P. O'Brien, Judge.
Action by L. C. Van Riper and another against Charles H. Botsford and others. From the
judgment rendered, defendant Botsford appeals. Heard on motion to dismiss appeal and to
strike out certain portions of the record. Motion to dismiss denied, and record as amended
allowed to stand.
Rufus C. Thayer, C. L. Harwood, James F. Peck, Solinsky & Wehe, and Paul C. Morf, for
Appellant:
I. The objections to the judgment may be summed up as follows:
1st, the judgment is contrary to law.
2d, the judgment is contrary to the facts found by the court.
3d, the facts of the case, as found by the court, will not sustain any part of the judgment.
4th, the judgment is not supported by the pleadings in the case.
5th, the judgment is not warranted by the facts and form of the action.
6th, the judgment rendered is upon issues not made by the pleadings.
7th, the plaintiffs have not alleged any right in themselves to entitle them to the specific
recovery of property, and the complaint sets forth no cause of action to warrant any of the
relief administered by the court.
8th, the complaint sets forth no cause of action either at law or in equity.
The plaintiffs have no title to nor interest in the stock, as property, so as to enable them to
maintain a proprietary or possessory action for its specific recovery. Obviously, under the
contract alleged, the plaintiffs can stand in the specific relation of legal or equitable owners to
the stock in question only on the theory that the contract created the relation of partners or
joint owners between the plaintiffs and this appellant, or that some principle of equity
intervenes which will make the plaintiffs equitable owners, and the appellant a trustee of
the legal title, of a portion of the stock.
will make the plaintiffs equitable owners, and the appellant a trustee of the legal title, of a
portion of the stock.
II. The contract did not create a partnership. The plaintiffs do not in their complaint
characterize the relations between themselves and appellant under the alleged contract. The
complaint does not allege, and the court does not find, that they were copartners. The contract
alleged in the complaint does not disclose an intent to create the relation of copartners on the
part of either the plaintiffs or the appellant. They agreed to use their joint efforts to get an
option and to sell it. That is not equivalent to an agreement to become partners in the
transaction. They simply agreed that they should use their individual efforts jointly. The
purpose was a joint purpose; but in accomplishing it each assumed a several duty to the
others, whose duties in turn were several and owing to the individual associates, and not to
the legal entity or to a firm. To constitute a partnership, every partner must be principal of and
agent for each of the others, with general powers within the scope of the business.
It is manifest from the foregoing that no partnership existed, and that the relations of the
parties were those of joint adventurers uniting their several efforts and interests for a common
purpose. (Simmons v. Lima Oil Co., 63 Atl. 258; Warwick v. Stockton, 55 N. J. Eq. 61, 36
Atl. 488; Coward v. Clanton, 122 Cal. 451; Wild v. Davenport, 48 N. J. Law, 129, 7 Atl. 295;
Nuttings v. Colt, 7 N. J. Eq. 539; Brotherton v. Gilchrist, 107 N. W. 890; Bridge Co. v. City
of Eaton Rapids, 65 N. W. 761; Petri v. Torrent, 49 N. W. 1080; Mason v. Hackett, 4 Nev.
425.) A joint adventure exists where two or more combine their energies or capital in a single
enterprise. (Stotts v. Miller, 105 N. W. 127; Church v. Odell, 100 Minn. 98, 110 N. W. 446,
23 Cyc. 452.)
III. There is no community of property, nor a joint ownership. In the case of a joint
adventure there is a common purpose; but no community of interest or of property is required.
Thus, if the contract of the parties binds all of them to contribute an equal portion of capital
and expenses, such contribution may be enforced by one of the associates, who had advanced
more than his share, against another, who has not fully paid in his proportion.
has not fully paid in his proportion. (23 Cyc. 457, and cases under note 79.) But in the
absence of a special contract to that effect (there is none in this case), the law will presume
that the one making an advance for the joint enterprise has agreed to wait for reimbursement
out of the profits (Bell v. McAboy, 3 Brewst. 81, 23 Cyc. 457, under note 78); and such
reimbursement cannot be insisted upon until completion of the transaction. (Williams v.
Hinshaw, 11 Pick. 79, 22 Am. Dec. 366.)
IV. Equity could not operate in this case to make the plaintiffs equitable owners of any of
the stock. Under the foregoing view of the case it becomes extremely difficult to find some
theory upon which to predicate any proprietary right or interest of the plaintiffs in any part of
the stock, such as would sustain an action of this kind, or any part of the judgment rendered
by the court. The contract to share in the profits could not operate ipso facto as an equitable
assignment of future profits for obvious reasons. That would require an absolute
appropriation by the assignor of the debt to the use of the assignee. It would require an intent
to transfer a present interest, and an irrevocable surrender of all control. (4 Cyc. 45, 47, and
cases cited.) This doctrine is manifestly inapplicable to a contract such as is alleged in the
complaint. Moreover, equity would not operate in that way, if by doing so it would work a
fraud, or an injury, or injustice upon any of the parties. To apply this doctrine in this case
would deprive the appellant of his right to hold the entire profits until all his advances have
been repaid. Again, the contract of the parties was to share the profits, and not the gross
receipts. Profits in a joint adventure means net amount after deducting any proper expenses
incident to the business. (Doane v. Adams, 15 La. Ann. 350; Scott v. Clark, 1 Ohio St. 382;
James v. Davidson, 2 Sneed, 447; Childberg v. Jones, 3 Wash. 530; Simmons v. Lima Oil
Co., 63 Atl. 258.) Evidently, the parties by their contract did not intend to presently divide
and assign to each other their respective shares in the future gross profits. In case any one of
them should make advances, entitling him to reimbursement out of profits subsequently
coming into his hands, they hardly meant to agree, in advance, that he should relinquish his
hold on such profits and seek satisfaction of his demand from his associates personally.
in advance, that he should relinquish his hold on such profits and seek satisfaction of his
demand from his associates personally. To so hold would amount to the making of a contract
which the parties themselves failed to make, and upon which their minds never met. Again,
there are no words of assignment in the contract, which is a mere agreement to share in the
profits.
V. Specific performance does not lie, but it might be claimed that the complaint and
decree are in the nature of specific performance. It is sufficient answer to this contention to
say that an action for the specific performance of the contract could not be maintained by the
plaintiff for five different reasons, if not more, to wit:
(1) The plaintiffs have not performed their part of the contract. They have not paid their
share of the outlay. (4 Pomeroy's Eq. Jurisprudence, sec. 1407; 2 Pomeroy's Eq. Remedies,
sec. 806.)
(2) When the action was commenced the appellant had not yet received the stock. Clearly
he could not deliver it, nor be ordered by the court to deliver it, until it had come into his
possession. (4 Pomeroy's Eq. Jurisprudence, sec. 1405.)
(3) The complaint sets forth no ground for the specific performance of this contract, in any
particular: (a) Equity will not specifically enforce a contract for the delivery of personal
property in the absence of a particular showing that compensation in damages is inadequate.
(2 Pomeroy's Eq. Remedies, secs. 748, 752; Pomeroy's Eq. Jurisprudence, secs. 221, 1402;
Senter v. Davis, 38 Cal. 454; Krause v. Woodward, 110 Cal. 638; Dowling v. Bentjeman, 70
En. Rep. 1175; Nickerson v. Chatterton, 7 Cal. 568; Glock v. Howard Company, 123 Cal. 6,
9, 11; Pomeroy's Specific Performances, sec. 335.) (b) The adequacy of the consideration
does not appear and is not pleaded. (Windsor v. Miner, 124 Cal. 492.) (c) it is not alleged and
does not appear that the contract as to the defendant is fair and just. (Stiles v. Cain, 134 Cal.
170; Bruck v. Tucker, 42 Cal. 346; Prince v. Lamb, 128 Cal. 120, 128; Arguello v. Banos, 67
Cal. 447; Agood v. Valencia, 39 Cal. 292.) (d) The contract was not mutual; the plaintiffs had
not agreed to contribute capital or to share the losses, if any.
(4) The complaint does not describe the particular stock to be delivered. The contract
could not apply to any stock until it was clearly designated, separated and identified.
(McLaughlin v. Piatti, 27 Cal. 451; Blackwood v. Cutting Co., 76 Cal. 218; Carpenter v.
Glass, 67 Ark. 139; Comm. Bk. v. Gilette, 90 Ind. 269, 46 Am. Rep. 223; New England Co. v.
Standard Co., 165 Mass. 330.)
(5) The alleged insolvency of the appellant (denied by the answer, and not found by the
court) is immaterial. (McLaughlin v. Piatti, 27 Cal. 451; 1 Pomeroy's Eq. Jur. sec. 178;
Finnegan v. Fernandina, 21 Am. R. 292; Ruse v. Bradford, 13 Ala. 837.) This action being
on the theory of fixed and liquidated profits, and in the form of an action to recover the
specific property representing the profits, the court had no jurisdiction in this action to adjust
and ascertain the profits, and to direct contribution. And having found that the plaintiffs were
not entitled to the possession of one-third each of the 45,000 shares, without first paying to
the appellant a sum of money, to be ascertained, and which was partially ascertained by the
court in this action, the court should have dismissed the action or ordered a reformation of the
complaint. (Lewis v. Varnum, 12 Abb. Prac. 305; 1 Cyc. 415; Greer v. Heiser, 16 Colo. 306.)
A recovery can be had only upon the facts alleged. (11 Ency. Pl. & Pr. 868, 869, and cases
cited; Horton v. Ruhling, 3 Nev. 498.) The allegations of the complaint, the findings and the
evidence should correspond in legal intent. (Tucker v. Parks, 7 Colo. 62, 1 Pac. 427; Gregory
v. Haworth, 25 Cal. 656; Greer v. Heiser, 16 Colo. 306, 26 Pac. 773.)
VI. Under the common counts no recovery can be had for the breach of a special contract.
For while the common counts are in some cases sufficient under the code, it is safe to say
they are insufficient in those cases where they were insufficient under the old system of
pleadings. Where a special contract is still open, and has not been rescinded by mutual
consent, it is necessary to declare specially. (Barre v. Thompson, 113 Cal. 97, 101. See, also,
11 Ency. Pl. & Pr. 886, 890-891, 896-898.) We have cited this multitude of authorities and
illustrations as the risk, perhaps, of being tiresome. But we feel justified in doing so on
account of the vastness of the interest involved in this appeal, and the great importance to
this appellant of an absolute reversal of the judgment of the lower court.
interest involved in this appeal, and the great importance to this appellant of an absolute
reversal of the judgment of the lower court. He should not be compelled to go to trial upon
the pleadings, as they stand, in a court of equity. If, however, the plaintiffs have a grievance
in equity, they should be compelled to fairly and fully state it in the complaint, so that this
appellant by his answer may avail himself of every equity in his favor, and frame the issues
accordingly. But the court has no right to convert a legal cause of action into an equitable,
because the plaintiff has framed his complaint in equity; and in this case the lower court
should have dismissed the action when the evidence showed the primary rights of the
plaintiffs under the contract to be a thing in action recoverable at law as a debt. (Lewis v.
Varnum, 12 Abb. Prac. 305; 1 Cyc. 415, note 55; 23 Cyc. 461.)
Treating the action as one upon contract, the complaint is defective because it alleges no
breach of contract. Paragraphs 13 and 14 of the complaint (transcript, pages 1310-1311) do
not show facts from which a breach of contract may be deduced. There is no showing that any
part of the 100,000 shares to be received by appellant is profit, and unless a profit is shown,
the appellant has a right to refuse to recognize the plaintiffs as being entitled to any of said
stock. (Dorr v. McKinney, 9 Allen, 359; Simmons v. Lima Oil Co., 63 Atl. 260, and cases
above.)
VII. In no event had the lower court any power or jurisdiction to declare a transfer of the
stock to the plaintiffs, or to order any part of it sold to satisfy the amount which the court
directed the plaintiffs to pay to this appellant. Not having any interest in, or lien upon, the
stock, the plaintiffs had no right to require, nor the court to order, a transfer and delivery, or a
sale thereof, by process of court or otherwise, to get the appellant's money out and so wind up
the joint account. This fact must always be regarded in every consideration of the right of
plaintiffs under the contract alleged and found. The stock remained the stock of the appellant,
and it was his province to say how it should be sold, and to fix the time for its sale. (Corbin v.
Holmes, 154 Fed. 598; Dorr v. McKinney, 91 Mass. 362, and cases cited under subdivision 1
of this brief.)
Moreover, the stock not being in the possession of the court, but standing in the name of a
stranger to the suit on the books of the corporation, the court had no power to compel a
further issue of stock by the corporation. (2 Cook on Corporations, 5th ed. secs. 391, 405;
sec. 363, p. 831, note 3; 2 Pomeroy's Eq. Remedies, sec. 1396; Smith v. N. Am. M. Co., 1
Nev. 423.)
Detch & Carney (Mack & Green and H. Alling of counsel), for Respondents.
This is a motion to dismiss the appeal, and also subject thereto a motion to strike certain
portions of the record. The record on appeal in this case was filed April 3, 1909. On April
17th following a stipulation, signed by respective counsel, was filed giving appellant until
May 5th in which to file their opening brief. On May 3d an additional stipulation was filed,
signed by respective counsel, extending the time until May 20th. On May 19th appellants
filed their opening brief. On May 31st a stipulation was filed, signed by respective counsel,
extending the time thirty days for respondents to file their brief in reply. On June 30th counsel
for respondent requested and obtained the order of the chief justice extending counsel for
respondent until August 2d to file their brief in reply. On July 2d a stipulation, signed by
respective counsel, was filed, extending the time in conformity to the last-mentioned order of
the chief justice. On July 17th counsel for respondent filed their motion to dismiss the appeal,
and also said motion to strike portions of the record. On July 19th stipulation signed by
respective counsel was filed, extending the time for respondents to file their reply brief to
November 3d, and that the motions to dismiss and to strike might be set down for hearing
before this court on September 20th. On July 24th counsel for appellant filed a notice of
motion and affidavit on motion to correct the record, and upon said date obtained an order
from the court shortening the time for the service of such notice. On the 30th day of July the
said motion to correct the record came on for hearing before the court, and after argument
by respective counsel the court made the following order:
hearing before the court, and after argument by respective counsel the court made the
following order:
The motion of the appellant Charles H. Botsford to correct and supply certain errors and
defects in the records on appeal herein coming this day regularly on to be heard before this
court upon the notice of said motion, written motion and suggestion, and affidavit on motion,
on file herein, and upon all the records on appeal herein, and the original papers filed herein
as the records on appeal herein, and upon proof of due service of the notice of said motion on
file herein, and C. L. Harwood and Paul C. Morf appearing as attorneys for the appellant, and
Messrs. Detch & Carney and Messrs. Mack & Green appearing as attorneys for respondents
L. C. Van Riper and Joseph Hutchinson, and filing affidavits in opposition to said motion,
and good cause appearing therefor, it is hereby ordered, that Joseph Hamilton, the clerk of the
district court of the Seventh Judicial District in and for the County of Esmeralda, State of
Nevada, be, and he is hereby, directed:
(1) To certify, in the manner and form and as required by section 3862 of the Compiled
Laws of the State of Nevada, the original papers in said district court in that certain action
commenced therein, entitled L. C. Van Riper and Joseph H. Hutchinson, Plaintiffs, against
Charles H. Botsford, James Davis, J. P. Loftus, and James Davis, doing business under the
firm name and style of Loftus & Davis, Goldfield Mohawk Mines Company, Goldfield
Consolidated Mines Company, Combination Mines Company, George S. Nixon, and George
Wingfield, Defendants,' and now on appeal to this court;
(2) To so certify and transmit to the clerk of this court the original amended answer filed
by said defendant and appellant Charles H. Botsford to the complaint in said action in said
district court, and the order of said district court overruling the demurrer of said Botsford to
the said complaint, and the order of said district court overruling the motion of said Botsford
for a new trial in said action, and, in case said orders of said district court, or either of them,
are minute orders, and are of record in said action only in the minutes of said court containing
entries affecting other cases in said court, to certify and transmit to the clerk of this court, in
conformity with the provisions of sections 3S62 and 3S63 of the Compiled Laws, certified
copies of said minutes containing said order or orders of said court;
with the provisions of sections 3862 and 3863 of the Compiled Laws, certified copies of said
minutes containing said order or orders of said court;
(3) To make up and attach together the judgment roll in said action, as required by section
3300 of the Compiled Laws, and to annex the same to the statement on appeal of the
appellant Botsford herein, and also to annex thereto the demurrer filed by said Botsford to
said complaint, and the order of said court overruling said demurrer, or a duly certified copy
of the minutes of said court containing said order and the notice of appeal and undertaking on
the appeal of said appellant Botsford from the final judgment in said action, and to number
and index the said papers, and to certify them to be the original papers in said district court in
said action, and to constitute the record on the said appeal to this court from said final
judgment, and thereupon to transmit and return them to the clerk of this court, all as required
by sections 3862 and 3863 of the Compiled Laws;
(4) To annex the order of said district court overruling the motion for a new trial in said
action of said defendant and appellant Botsford, or a duly certified copy of the minutes of said
court containing said order, to the statement on motion for a new trial of said appellant
Botsford herein, and also to annex thereto the notice of appeal and undertaking on the appeal
of said appellant Botsford from the said order of said court, and to number and index the said
papers, and to certify them to be the original papers in said district court in said action, and to
constitute the record on the said appeal to this court from said order overruling said motion
for a new trial, and thereupon to transmit and return them to the clerk of this court, all in
conformity with sections 3862 and 3863 of the Compiled Laws. And it is hereby further
ordered that said records on said appeals, or said original papers, be returned by the clerk of
this court by express to the said clerk of said district court for the purpose of carrying out and
executing this order, and performing the acts herein directed to be by him done or performed.
And it is hereby further ordered that upon the certification and transmission of the said
original papers and records on appeal by the clerk of said district court to the clerk of this
court, as aforesaid, the said original papers and records on appeal, so returned or
transmitted to the clerk of this court hereunder, shall be received, and retained by the
clerk of this court as offered for filing, until the further order of this court herein.
district court to the clerk of this court, as aforesaid, the said original papers and records on
appeal, so returned or transmitted to the clerk of this court hereunder, shall be received, and
retained by the clerk of this court as offered for filing, until the further order of this court
herein. And it is hereby further ordered, that before the said records on appeal or original
papers are expressed to said clerk of said district court, the clerk of this court shall file a
complete list of all the said papers now on file in this court in the order in which they are now
contained in said records on appeal, and that all of said papers constituting said records on
appeal, including any and all papers now on file herein with the clerk of this court, including
the clerk's certificate thereto, be and remain in the condition in which they now are, and be
returned to the clerk of this court, as aforesaid. And it is further ordered, that all objections
hereto, of respondents herein, be and the same hereby are, reserved for submission to and
determination by this court until the hearing and determination of the motions of respondents
to diminish the record and to dismiss said appeals now on file herein, and that all of said
matters and motions be heard and determined together upon the hearing of said motions.
Done in open court, at Carson City, Nevada, this 31st day of July, A. D. 1909.
Pursuant to this order the records were sent by the clerk of this court to the clerk of the
court below, and such record was corrected subject to the conditions of the foregoing order,
and the record returned to the clerk of this court for filing. Thereafter, on the 20th day of
September, 1909, pursuant to agreement of respective counsel, the motions to dismiss and to
strike came on for hearing. The questions presented by the several motions were orally
argued, and time thereafter taken in which to file briefs. The question of law presented upon
these several motions, with the exception of the point raised by counsel for respondent that
the undertaking on appeal was insufficient, are sufficiently indicated by the order above
quoted. If the order is one which should be approved by this court, and the record as amended
be directed to be filed as the correct record on appeal, then the motions to dismiss and to
strike should, in the main, be denied, unless we find the objections to the sufficiency of the
undertaking are well taken.
the objections to the sufficiency of the undertaking are well taken.
The application to amend the record is in conformity with the provisions of rule 7 of this
court, which reads: 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. In the recent case of State v.
Hill (decided in this court December 31, 1909), 32 Nev. 185, we said: This court has
adopted a liberal practice in the granting of applications to amend defects in transcripts; but,
where no move is made to obviate a valid objection, there is no other alternative than to grant
it. In the case of Christensen v. Floriston Pulp and Paper Company, 29 Nev. 552, a motion
was made to dismiss the appeal upon the ground that it affirmatively appears from the record
that no notice of appeal was ever given, as required by law, and, further, that no undertaking
on appeal has been executed by appellant. In that case, as in this, application was made by
counsel for appellant to amend or correct the record by adding thereto the notice and
undertaking on appeal, which appeared to have been mislaid and overlooked by the clerk in
the preparation of the transcript on appeal. The motion to dismiss was denied, upon the
ground that appellants by supplying the omission had substantially complied with the
provisions of rule 7, supra.
We think, also, that the point raised by counsel for appellant that the respondents, by
entering into numerous stipulations heretofore referred to, which reserved no right to object
or except to the sufficiency of the record, waived the right to move to dismiss, or to strike
upon any grounds that were not jurisdictional. (Henningsen v. Tonopah & Goldfield R. R.
Co., 32 Nev. 51; Smith v. Wells Co., 29 Nev. 46; Bliss v. Grayson, 24 Nev. 432; Curtis v.
McCullough, 3 Nev. 213; Rule 8 of Supreme Court of Nevada.)
Supreme Court of Nevada.) It manifestly appears, however, that the transcript or record on
appeal from the order denying the motion for a new trial contains many papers which have no
proper place in the record. It would appear that the clerk of the lower court had certified up all
of the files of the case, regardless of whether they constituted any portion of the statement on
motion for a new trial or on appeal, or appear to have been used upon the hearing of the
motion for a new trial. This court, in the case of Hoppin v. First National Bank, 25 Nev. 90,
said: The respondent also asks us to strike out of the record certain affidavits in support of
the motion for new trial, offered under the fourth subdivision of section 3217 of the General
Statutes. This motion must prevail. The affidavits are not shown, by the indorsement of the
judge or clerk, to have been read or referred to on hearing of the motion, as required by the
express terms of that section, and are therefore no part of the record. (Gen. Stats. 3219; Dean
v. Pritchard, 9 Nev. 232; Albion Con. M. Co. v. Richmond M. Co., 19 Nev. 225; Comp.
Laws, 3292.)
The undertaking on appeal in this case was given by the United States Fidelity and
Guaranty Company, under the provisions of that certain act of the legislature entitled An act
to facilitate the giving of bonds and undertakings required by law, approved February 26,
1887 (Stats. 1887, p. 86, c. 84), as amended by Stats. 1903, p. 63, c. 42, which reads: Any
company incorporated and organized under the laws of any state of the United States for the
purpose of transacting business as surety on obligations of persons, or corporations, or state,
county, or township officers, and which has complied with all the requirements of the law
regulating the admission of such companies to transact business in this state, shall, upon
production of evidence of solvency and credit satisfactory to the judge, head of department, or
other officer or officers authorized to approve such bond, be accepted as surety upon the bond
of any person, or corporation, or state, county, or township officer required by the laws of this
state to execute a bond, and if such surety company shall furnish satisfactory evidence of its
ability to provide all the security required by law, no additional security may be exacted, but
other security may, in the discretion of the official or officials authorized to approve such
bond, be required and such surety company may be released from its liability on the same
terms and conditions as are by law prescribed for the release of individuals, it being the
true intent and meaning of this act to enable corporations created for that purpose to
become surety on bonds required, subject to all the rights and liabilities of private
parties."
may, in the discretion of the official or officials authorized to approve such bond, be required
and such surety company may be released from its liability on the same terms and conditions
as are by law prescribed for the release of individuals, it being the true intent and meaning of
this act to enable corporations created for that purpose to become surety on bonds required,
subject to all the rights and liabilities of private parties.
Upon the part of respondent it is contended that this undertaking is of no validity as an
undertaking on appeal, for the reason that it is not in accordance with the provisions of the
practice act (Comp. Laws, 3436, 3443), requiring the undertaking on appeal to be furnished
by two sureties, who shall make and attach to the undertaking an affidavit that they are
severally worth the amount for which they became surety. Upon the part of appellant it is
contended that the act, the title of which is quoted supra, is a general act, under the provisions
of which it is optional with the appellant to furnish an undertaking with two personal sureties
as provided in the civil practice act, or to furnish the undertaking of a surety company which
may be accepted as sole surety, and that such surety undertaking does not require an affidavit
in its support. It is further contended by appellant that, even if appellant's objection to the
form of the undertaking could have been considered well taken, if interposed in time, they
have waived the right now to question its sufficiency.
Several appeals have come to this court with undertakings similar to that furnished in this
case, in which the question of the validity of the undertaking was not interposed. In one or
two cases the question was raised; but, as this court found it could affirm the judgment upon
the merits, the question was not determined. The importance of this point to the practice of
this state is such that we deem it should now be determined, and hence we shall disregard the
contention that respondents have waived the right to question the sufficiency of the
undertaking. A number of states have adopted statutes similar to, but not identical with, that
under which the undertaking in this case was given, but a diligent search has only discovered
a few cases in which the point has been considered. The following are all of the cases which
we have been able to find which have considered the sufficiency of an undertaking on
appeal furnished by a surety company as sole surety: Nicholas v. MacLean, 9S N. Y. 45S;
Earle v. Earle, 49 N. Y. Super. Ct. 57; Hurd v. Hannibal R. R. Co., 67 How. Prac. {N. Y.) 516;
Id., 33 Hun {N. Y.), 109; Cramer v. Tittle, 72 Cal.
find which have considered the sufficiency of an undertaking on appeal furnished by a surety
company as sole surety: Nicholas v. MacLean, 98 N. Y. 458; Earle v. Earle, 49 N. Y. Super.
Ct. 57; Hurd v. Hannibal R. R. Co., 67 How. Prac. (N. Y.) 516; Id., 33 Hun (N. Y.), 109;
Cramer v. Tittle, 72 Cal. 12, 12 Pac. 869; King v. Pony Gold Min. Co., 24 Mont. 470, 62 Pac.
783. All the foregoing cases, excepting the first (98 N. Y. 458), have held such undertakings
to be sufficient. The effect of the Nicholas case was to overrule or reverse the two decisions
rendered a short time previous by the two New York courts of inferior appellate jurisdiction,
but the opinion nowhere refers, either directly or indirectly, to these other decisions, which
appear to have considered the question as fully and completely as did the court of appeals in
the Nicholas case. In any event the New York statute under consideration in the cases cited
did not contain a provision similar to the following, which appears in our statute: And if
such surety company shall furnish satisfactory evidence of its ability to provide all the
security required by law, no additional security may be exacted.
The Montana statute, construed in the King case, supra, is possibly clearer in its
provisions than those contained in the Nevada or California statutes, but the purpose designed
to be accomplished by the act is, we think, manifestly the same. The Montana court cites the
Cramer case and the Hurd case, supra, with approval. The California statute is more nearly
like ours than either the New York or Montana statutes. In the Hurd case, supra, the
undertaking on appeal was given by a surety company as sole surety, and the respondent
moved to dismiss the appeal upon the ground that no sufficient undertaking had been filed.
The court disposed of the motion in the following brief opinion: We are of opinion that the
undertaking in this case is valid. The statute is a general law, and not an amendment to the
code of civil procedure in the sense of the provision of the constitution referred to. The statute
is constitutional. In all of the state courts which have heretofore had occasion to pass upon
these statutes the provisions of their civil practice acts were substantially the same as ours,
requiring two sureties and an affidavit of the sureties.
sureties. In every instance the validity of the statute has been upheld as a lawful exercise of
the legislative power; the court of appeals of New York alone holding, in effect, that such a
surety company could not become sole surety. But, as we have heretofore pointed out, the
language of the New York statute is not as broad as that of this state. The statutes were never
intended to amend or repeal the provisions of the civil practice act, providing for
undertakings on appeal, but only to provide an additional method of furnishing such
undertakings at the option of the appellant. In almost every instance where an official bond is
required of an officer in this state the statute requires two sureties, and the same objection
here interposed would apply with equal force in the case of such bonds.
The motion to dismiss the appeal is denied. With the exception of the miscellaneous
papers not certified as having been used on the motion for a new trial, and not forming a part
of the statement on motion for a new trial, the motion to strike is denied. All miscellaneous
papers not certified as having been used on the motion for a new trial, and not forming a part
of such statement, are ordered stricken from the transcript on file. With the exception of the
papers so stricken, the transcript on appeal from the judgment, and from the order denying the
motion for a new trial, as amended, will stand as the record on appeal in this cause.
It is so ordered.
____________
32 Nev. 230, 230 (1910) Rhodes Co. v. Belleville Co.
[No. 1839]
RHODES MINING COMPANY, Respondent, v.
BELLEVILLE PLACER MINING COMPANY, Appellant.
1. Preliminary InjunctionDiscretion of Court.
Under practice act (Stats. 1869, c. 112), sec. 112, authorizing the court to grant a temporary injunction in
specified cases, the court may, in its sound discretion, grant a temporary injunction where the rights of the
parties under the circumstances may be better protected thereby.
2. Preliminary InjunctionMotion to DissolveDiscretion of Court.
Where, on motion to dissolve a preliminary injunction in a suit by the holder of the patent to agricultural
lands to restrain the removal of tailings produced and alleged to have been impounded on the land by a
mining company, and sold under execution against it to the holder of the patent, the affidavits raised a
conflict on the issue whether the tailings had been impounded or abandoned by the company, it was not
error to refuse to dissolve the injunction, until the doubtful questions of law and fact were determined.
Ormsby County; F. P. Langan, Judge.
Action by the Rhodes Mining Company against the Belleville Placer Mining Company.
From an order denying a motion to dissolve a preliminary injunction, defendant appeals.
Affirmed. On petition for rehearing. Denied.
Knapp & Cohen, E. G. Knapp, and Samuel Platt, for Appellant:
I. That respondent owns the NE 1/4 of Sec. 10, T. 4 N., R. 34 E., M. D. B. & M., by virtue
of a patent from the State of Nevada, copy of which is attached to the pleading, from which it
appears that a reservation is therein made in the following words: provided, that all mines of
gold, silver, copper, lead, cinnabar, and other valuable minerals that may exist in said tract are
hereby expressly reserved, and that the land was originally vacant United States public
land, subject to sale by the State of Nevada.
II. That the land is now and always has been agricultural land (except for the mineral
contained in the tailings hereinbefore referred to). That these tailings, worth from $2,000,000
to $2,500,000, were deposited on the land by the Holmes Mining Company and other
parties, styled in the bill "The Holmes Mining Company, or its predecessors," and that the
plaintiff has become the owner of all the interest that the Holmes Mining Company ever
had in said tailings by virtue of certain execution sales under judgments recovered
against that company, and that the Holmes Mining Company never abandoned these
tailings.
$2,000,000 to $2,500,000, were deposited on the land by the Holmes Mining Company and
other parties, styled in the bill The Holmes Mining Company, or its predecessors, and that
the plaintiff has become the owner of all the interest that the Holmes Mining Company ever
had in said tailings by virtue of certain execution sales under judgments recovered against
that company, and that the Holmes Mining Company never abandoned these tailings. The rest
of the complaint shows simply that the original defendants and the appellant claim a
possessory right based upon a location of the tailings as a placer mining claim under the laws
of the United States. The first affidavit of S. A. Knapp states simply the nature and character
of the deposit of tailings; secondly, that plaintiff is not the owner of the land unless made so
by the patent set out in the complaint; third, that the land is not, and never was, agricultural
land; fourth, that the execution sales above referred to were ineffectual to pass any title; fifth,
that the appellant is the owner of the land and of the tailings thereon, and of the right to work
and mine them for gold and silver.
III. The land department has recognized this possessory right and permitted entries to be
made of lands containing beds of tailings, under the laws applicable to placers. There are no
adjudicated cases in the reports of departmental decisions upon this subject which have come
under our observation, but we have knowledge of several instances where patents for this
class of claims have been issued under the mining laws. (Rogers v. Cooney, 7 Nev. 213-218;
Ritter v. Lynch, 123 Fed. 931-933; Garrard v. Silver Peak, 82 Fed. 578-591; Jones v.
Jackson, 9 Cal. 238-246; Dougherty v. Creary, 30 Cal. 291; Dougherty v. Creary, 30 Cal.
481; Blanchard and Week's Leading Cases on Mines, etc., pages 222-3.) The statutes of
Nevada on the subject absolutely preclude obtaining a title to the tailings through the patent
pleaded. (Comp. Laws, 282-327.) These would seem to be a complete answer to plaintiff's
contentions if the tailings are land or real property, then they do not belong to plaintiff, but to
the Northern Belle Mining Company, and the injunction was erroneous and should be
dissolved.
J. J. Scrivner, S. C. Denson, C. H. Belknap, for Respondent:
I. Plaintiff by its complaint is asserting two separate and distinct titles derived from
different sources: (1) A title to the land described in the complaint, and (2) a title to the
tailings. Plaintiff asserts title to the land described in the complaint under and by virtue of a
patent issued to J. J. Scrivner for said land as agricultural land, which even if the land
belonged to plaintiff would not, and could not, prevent or deter defendant from locating and
working a placer mining claim thereon. (Stats. 1887, p. 102; Garrard v. Silver Peak Mines,
82 Fed. 578-591.)
II. Plaintiff asserts title to the tailings described in the complaint under and by virtue of a
purchase of the same by plaintiff at a sheriff's sale of same as personal property under an
execution issued in the case of the Southern Nevada Gold and Silver Mining Company
against the Holmes Mining Company, while the same were upon the lands of plaintiff and not
on the lands of the Holmes Mining Company. Therefore, if said tailings were situate upon the
lands of plaintiff, which were not mineral but agricultural lands, and the defendant has a right
under the laws of Nevada (Stats. 1887, p. 102) to enter upon said agricultural land and work
and mine the same for minerals, this agricultural title of plaintiff will not avail it to enjoin the
acts of defendant complained of.
III. It is further shown by the complaint and exhibits attached thereto that defendant has
located a placer mining claim upon said tailings and was at the time of the granting of said
injunction working said claim. The right to locate a placer mining claim upon tailings is
firmly established by the following cases: Ritter v. Lynch, 123 Fed. 930; Rogers v. Cooney, 7
Nev. 213; Jones v. Jackson, 9 Cal. 238; Lindley on Mines, sec. 426; Garrard v. Silver Peak
Mines, 82 Fed. 578; Leading Cases on Mines and Minerals, Blanchard and Weeks, pages
222-223. Land upon which tailings have been deposited may be located as a placer mining
claim. (Rogers v. Cooney, 7 Nev. 213-218; Ritter v. Lynch, 123 Fed. 930-933.) Tailings
deposited on unoccupied nonmineral land of the United States do not belong to the party so
depositing said tailings unless said party by some act clearly manifests his intention to
claim and hold possession of the land for the purpose of retaining and impounding said
tailings, which fact must be sufficient to impart notice that said land was held for said
purpose.
tailings unless said party by some act clearly manifests his intention to claim and hold
possession of the land for the purpose of retaining and impounding said tailings, which fact
must be sufficient to impart notice that said land was held for said purpose.
IV. As we have heretofore stated, we do not deem it necessary to controvert by affidavits
or otherwise (although we have done so) the allegations contained in plaintiff's complaint
concerning the title to said tailings and the abandonment of same by the Holmes Mining
Company, it being sufficient for the purposes of this motion to show that plaintiff has no title
which would warrant the granting of the relief prayed for, which we say is apparent from the
complaint itself and the authorities hereinbefore cited. It is respectfully submitted that the
motion of defendant should be granted and the injunction heretofore issued should be
dissolved.
V. Our view is that tailings never lose their identity as personal property unless they are
allowed to flow where they list and pass beyond the dominion of the producer and while so
flowing find a strange and foreign resting-place, thus making an increase to the land and
thereby becoming an accretion to the soil. But the contention that where a miner piles up and
impounds his tailings either by natural or artificial means, no difference how high or deep the
pile may be, they lose their character as personalty and become an accretion to the soil or
body of each upon which they rest, changing the ground beneath them from its natural state of
agricultural to mineral land, seems to us a perversion of the word accretion, and too
far-fetched to entitle it to a moment's consideration. To become an accretion the tailings must
of their own volition move where they list and pass beyond the dominion of the producer. In
order to lose their natural characteristic of personal property they must become an accretion,
which can only occur as before stated. In other words, tailings deposited in any way by the
owner and producer and by his direction and under his control and upon land in his
possession, whether public or private, maintain the same characteristics as they possessed
when deposited by him, at least until he abandons them.
them. They were personal property when he deposited them upon the ground, and they must
remain so until some other act intervenes which alters their character.
Knapp & Cohen, E. G. Knapp, and Samuel Platt, for Appellant, in reply:
I. The tailings deposited by the Holmes Mining Company became the property of the
Northern Belle Mining Company by accretion. (Mack v. Snell, 140 N. Y. 193, 35 N. E. 493;
Byrne v. McGrath, 130 Cal. 316-320, and other cases cited in Kerr's notes to the sections of
the civil code above cited in Kerr's Annotated Civil Code of California; see title Accretion in
1 Cyc. 222-225; 1 Am. & Eng. Ency. Law, 247-256.)
II. An interlocutory injunction should not be granted when novel questions of law are
involved. (High on Injunctions, sec. 4; Fritz v. Erie City P. Ry., 155 Pa. St. 472, 26 Atl. 653;
Smith v. Reading C. P. Ry., 156 Pa. St. 5, 26 Atl. 779; Conley v. Fleming, 14 Kan. 381.) And
it is a fatal objection to granting an injunction for the protection of property pending litigation
that the party seeking the relief has no title to or interest in the property, and no claim to the
ultimate relief sought by the litigation. (State v. McGlynn, 20 Cal. 233; O'Brien v. O'Connell,
7 Hun, 228.)
III. An interlocutory injunction will not be allowed where the right which plaintiff seeks to
have protected is in doubt, or where the injury which will result from the invasion of that
right is not irreparable. (Sprigg v. Western Telegraph, 46 Md. 67; Hagerty v. Lee, 17 Atl.
826; Amos v. Norcross, 58 N. J. Eq. 256, 43 Atl. 195.)
IV. Nor will parties in possession, whose rights were acquired by purchase at a sheriff's
sale from one in peaceable possession, be enjoined from the use and enjoyment of the
property by other purchasers, claiming adversely to the first vendor, each purchaser being
ignorant at the time of purchase of any title save that of his vendor.
V. The rule that the granting or denying of a preliminary injunction involves such an
exercise of judgment upon the part of the chancellor as will not be disturbed upon appeal
does not apply to cases involving questions of law arising upon the face of the bill.
the face of the bill. (Burlington, C. R. & N. Y. Co. v. Dey, 82 Iowa, 312, 48 N. W. 98, 12 L.
R. A. 436, 31 Am. St. Rep. 477.)
This is an appeal from an order denying defendant's motion to dissolve a preliminary
injunction, which had been granted at the time of the commencement of the action. In issuing
the injunction, and in refusing the motion for its dissolution, the court considered the
complaint and affidavits which were presented by the respective parties.
It is alleged that the plaintiff holds the patent from the State of Nevada to 160 acres of
agricultural land, through the application and contract of the plaintiff's grantor; that for many
years prior to 1890 the Holmes Mining Company operated mills and mining machinery for
the reduction of ores, by which a large amount of tailings were produced and impounded on
the land, and that these ever since have remained in place in one body, to the amount of
between 400,000 and 500,000 tons, of the value of $5 per ton; that the tailings have never
been abandoned, and that they were duly sold by the sheriff to the plaintiff under a writ of
execution in the suit of the Southern Nevada Gold and Silver Mining Company against the
Holmes Mining Company; that in August, 1904, the original defendants in the present action,
who have since conveyed to the Belleville Placer Mining Company, located the ground upon
which the tailings were situated as a placer claim, and publicly asserted that the deposit of the
tailings converted the ground into mineral land, subject to placer location under the United
States mineral laws; that the defendants, claiming a right, title, and interest in the tailings by
reason of the placer location, in August, 1904, unlawfully entered upon the land, and
proceeded to excavate and remove some of the tailings where the same were impounded by
the former owners thereof; that the tailings were not the subject of mineral entry as a placer
claim or otherwise; that the land was not mineral land, and that the tailings were and are the
private property of the plaintiff, and were the property of the Holmes Mining Company until
the title and possession passed by the sheriff's sale to the plaintiff; that the defendants
threatened to continue to trespass upon the land and commit waste by excavating and
removing the tailings, to the great and irreparable damage of the plaintiff; that when the
tailings are removed, the land itself is practically valueless for any purpose; and that the
plaintiff would be irreparably injured by the carrying out of the threats of the defendant,
and could not be compensated in damages.
threatened to continue to trespass upon the land and commit waste by excavating and
removing the tailings, to the great and irreparable damage of the plaintiff; that when the
tailings are removed, the land itself is practically valueless for any purpose; and that the
plaintiff would be irreparably injured by the carrying out of the threats of the defendant, and
could not be compensated in damages.
The affidavits which were used upon the hearing of the motion raise a conflict as to a
question of fact relating to whether the tailings had been impounded or abandoned by the
Holmes Mining Company. Among other contentions, it is claimed on behalf of the defendant
that the complaint does not state facts constituting a cause of action or warranting the
issuance of an injunction; that under the case of Rogers v. Cooney, 7 Nev. 213, the tailings
mineralized the land, so that it became subject to location as a placer claim, and that under the
provisions in the patent reserving the mineral, and giving to others than the patentee the right
to prospect and locate mines on the land, and under the decision in Stanley v. Mineral Union,
26 Nev. 55, the defendant is entitled to hold the tailings under the placer location. The
plaintiff relies upon the same cases which are cited by the defendant; and, considering two or
three of these for examples, the circumstances were different from those admitted or so far
established in the present case. In Rogers v. Cooney it appeared that the tailings had not been
impounded, and had been abandoned by the mill and the owners of the ore by which they had
been produced, in distinction of the claim of the plaintiff here that the tailings in controversy
were impounded, and not abandoned, and were sold to the plaintiff. In Ritter v. Lynch, (C.C.)
123 Fed. 931, the tailings were held by the owner, who had retained them in a reservoir
against the locator of the placer claim; and, until there is a final determination of the facts, it
is not clear whether that case is applicable. In Stanley v. Mineral Union no question relating
to tailings was involved, and the plaintiff admits that under that decision and an agricultural
patent issued by the state, such as the one held by the plaintiff, mines may be located and held
by prospectors.
It is apparent that important questions of fact and law which the district judge may well
have considered doubtful are presented, the determination of which, if made now, might
settle the controlling issues in advance of the trial. It is said that a temporary restraining order
should not be granted unless it clearly appears that the plaintiff is entitled to it; but we have
adopted heretofore a more liberal rule, and one under which the rights of the parties, if the
circumstances warrant, in the sound discretion of the court, may be better protected. Section
112 of the practice act (Stats. 1869, c. 112) provides: An injunction may be granted in the
following cases: FirstWhen it shall appear by the complaint that the plaintiff is entitled to
the relief demanded, and such relief or any part thereof consists in restraining the commission
or continuance of the act complained of either for a limited period or perpetually.
SecondWhen it shall appear by the complaint or affidavit that the commission or
continuance of some act, during the litigation, would produce great or irreparable injury to the
plaintiff. ThirdWhen it shall appear, during the litigation, that the defendant is doing, or
threatens, or is about to do, or is procuring or suffering to be done, some act in violation of
the plaintiff's rights respecting the subject of the action, and tending to render the judgment
ineffectual.
In Marino v. Williams, 30 Nev. 372, we say: Nevertheless, it may be said that, under the
circumstances, the temporary injunction to run until the further order of the court was not
improperly granted, and that its dissolution was not erroneously refused, if the judge
entertained serious doubts regarding the final right of the plaintiff to have a restraining order.
Courts have often held that an injunction ought not to be granted unless the applicant shows
clearly that he is entitled to one, but other tribunals take the view that it depends largely upon
a sound discretion and the circumstances, such as the relative inconvenience and injury that
may result to the parties, and that where there is grave doubt in relation to the law or the facts,
a temporary injunction may be granted, to prevent great hardship or irreparable damages, until
there is a hearing or determination. (Harriman v. Northern Securities Co., 132 Fed. 464, and
cases there cited.) In the latter case it was said: "The balance of convenience or hardship
ordinarily is a factor of controlling importance in cases of substantial doubt existing at the
time of granting or refusing the preliminary injunction.
was said: The balance of convenience or hardship ordinarily is a factor of controlling
importance in cases of substantial doubt existing at the time of granting or refusing the
preliminary injunction. Such doubt may relate either to the facts or to the law of the case, or
to both. It may equally attach to, or widely vary in degree as between, the showing of the
complainant and that of the defendant, without necessarily being determinative of the
propriety of allowing or denying the injunction. Where, for instance, the effect of the
injunction would be disastrous to an established and legitimate business through its
destruction or interruption in whole or in part, strong and convincing proof of right on the
part of the complainant, and of the urgency of his case, is necessary to justify an exercise of
the injunctive power. Where, however, the sole object for which an injunction is sought is the
preservation of a fund in controversy, or the maintenance of the status quo, until the question
of right between the parties can be decided on final hearing, the injunction properly may be
allowed, although there may be serious doubt of the ultimate success of the complainant. Its
allowance in the latter case is a provisional measure of suspensive effect, and in aid of such
relief, if any, as may be finally decreed to the complainant. These views are supported by
abundant authority, to which, were it not for the importance of the case, I should refrain from
adverting.
In Russell v. Farley, 105 U. S. 433, 438, 26 L. Ed. 1060, the court, through Mr. Justice
Bradley, said: It is a settled rule of the court of chancery, in acting on applications for
injunction, to regard the comparative injury which would be sustained by the defendant if an
injunction were granted, and by the complainant if it were refused. (Kerr on Injunctions, 209,
210.) And if the legal right is doubtful, either in point of law or of fact, the court is always
reluctant to take a course which may result in material injury to either party.' In City of
Newton v. Levis, 79 Fed. 715, 25 C. C. A. 161, the circuit court of appeals for the eighth
circuit, through Judge Sanborn, said: The granting or withholding of a preliminary injunction
rests in the sound judicial discretion of the court, and the only question presented by this
appeal is whether or not the court below erred in the exercise of that discretion, under the
established legal principles which should have guided it.
lished legal principles which should have guided it. The propriety of its action must be
considered from the standpoint of that court. * * * The controlling reason for the existence of
the right to issue a preliminary injunction is that the court may thereby prevent such a change
of the conditions and relations of persons and property during the litigation as may result in
irremediable injury to some of the parties before their claims can be investigated and
adjudicated. When the questions to be ultimately decided are serious and doubtful, the legal
discretion of the judge in granting the writ should be influenced largely by the consideration
that the injury to the moving party will be certain, great, and irreparable if the motion is
denied, while the inconvenience and loss to the opposing party will be inconsiderable, and
may well be indemnified by a proper bond if the injunction is granted.
A preliminary injunction maintaining the status quo may properly issue whenever the
questions of law or fact to be ultimately determined in a suit are grave and difficult, and
injury to the moving party will be immediate, certain, and great if it is denied, while the loss
or inconvenience to the opposing party will be comparatively small and insignificant if it is
granted. * * * The arguments and brief of counsel invite us to a consideration of the questions
of law which must be finally determined upon a demurrer to the bill, or upon a final hearing
of this case after answer. We have, however, found it unnecessary to decide these questions
on this appeal, and we express no opinion upon them. They are of sufficient importance and
difficulty to demand careful examination and deliberate consideration. In Glascott v. Lang, 3
Myl. & C. 451, 455, Lord Chancellor Cottenham said: In looking through the pleadings and
the evidence, for the purpose of an injunction, it is not necessary that the court should find a
case which would entitle the plaintiff to relief at all events. It is quite sufficient if the court
finds, upon the pleadings and upon the evidence, a case which makes the transaction a proper
subject of investigation in a court of equity.' In Hadden v. Dooley, 74 Fed. 429, 431, 20 C. C.
A. 494, the circuit court of appeals for the second circuit, through Judge Shipman, said:
When the questions which naturally arise upon the transactions make them a proper
subject for deliberate examination, if a stay of proceedings will not result in too great
injury to the defendants, it is proper to preserve the existing state of things until the
rights of the parties can be fairly and fully investigated and determined by evidence and
proofs which have the merit of accuracy.'"
which naturally arise upon the transactions make them a proper subject for deliberate
examination, if a stay of proceedings will not result in too great injury to the defendants, it is
proper to preserve the existing state of things until the rights of the parties can be fairly and
fully investigated and determined by evidence and proofs which have the merit of accuracy.'
Under the circumstances, we do not think that it was error to refuse to dissolve the
injunction before the time had arrived for finally determining the doubtful and controlling
questions involved.
The order of the district court is affirmed.
On Rehearing
Per Curiam:
As the within petition raises the questions which were not called to the attention of the
lower court and regarding which appellant is not precluded from applying to the lower court
for relief and which are not embraced in the specifications of error, and this court is still
satisfied with its conclusion regarding the matter determined by its decision, the petition for
rehearing is denied.
____________
32 Nev. 241, 241 (1910) Symons-Kraussman v. Reno Liquor Co.
[No. 1857]
SYMONS-KRAUSSMAN COMPANY, a Corporation, Appellant, v.
RENO WHOLESALE LIQUOR COMPANY, a Corporation, Respondent.
1. PleadingDefenses To Be Asserted by Demurrer or Answer.
Under civil practice act, sec. 38 (Comp. Laws, 3133), which prescribes the pleadings on the part of
plaintiff and defendant, where a document styled a motion was filed by defendant asking that the
complaint be dismissed for reasons set forth therein, asserting a defense which could only be asserted by
demurrer or answer, it should have been dismissed as having no legal standing, and not merely denied.
2. CorporationsComplaintDismissalDay in CourtForeign Corporation.
Where a complaint alleged that plaintiff was a corporation organized under the laws of a foreign state, it
was reversible error to dismiss the complaint on a motion to set it aside on the allegations therein, since
whether plaintiff was entitled to do business in the state was a matter on which it was entitled to be heard
and to have a day in court before its action was summarily dismissed.
3. EvidenceJudicial Notice.
Nor was the unsworn motion of defendant's attorney to dismiss the complaint upon the allegations thereof
sufficient to warrant the court in taking such judicial notice of such motion as to deprive plaintiff of its
constitutional right of being heard upon the merits of the motion, in a proper proceeding, as to whether it
had complied with the law before doing business in the state.
Action by the Symons-Kraussman Company, a corporation, against the Reno Wholesale
Liquor Company, a corporation. From an order opening a default judgment in favor of
plaintiff and dismissing the complaint, plaintiff appeals. Affirmed in part, and reversed in
part.
Albert D. Ayres, for Appellant.
G. W. Shutter-Cottrell, for Respondent.
This action was instituted on the 9th day of June, 1909, in the Second Judicial District
Court of the State of Nevada, in and for the County of Washoe, to recover the sum of
$503.50, alleged to be due for goods, wares, and merchandise ordered, at the instance
and request of defendant, from the plaintiff.
and for the County of Washoe, to recover the sum of $503.50, alleged to be due for goods,
wares, and merchandise ordered, at the instance and request of defendant, from the plaintiff.
Thereafter, on the 19th day of June, 1909, the defendant, through its attorney, filed in said
district court a document, styled a motion, in which it was asked that the court dismiss the
complaint for reasons set forth therein. This document was evidently mistaken by the attorney
for the defendant as the proper pleading to raise specified defects in plaintiff's complaint
which should have been raised by demurrer or answer as provided by our civil practice act.
As section 38 of our civil practice act (Comp. Laws, 3133) prescribes the pleadings on the
part of plaintiff and of the defendant, it is needless to add that this document, for the purpose
it was intended to serve, in asserting a defense which could only be raised by demurrer or
answer, in itself had no legal standing and should have been dismissed. The lower court,
however, in its indulgence treated said document as a motion, and later on, upon motion of
the attorney for the plaintiff, properly denied the relief asked in the so-styled motion of
defendant, because it did not comply with rule 10 of the district court. This paper, styled and
treated as a motion, having been denied, and no styled answer or demurrer having been
interposed by defendant within the legal time prescribed by law, upon a proper application of
attorney for plaintiff, defendant's default was duly entered, and judgment thereupon rendered
in favor of plaintiff as prayed for in its complaint. Thereafter on the 14th day of July, 1909,
defendant filed and served the following notice of motion: To Symons-Kraussman Company
and Albert D. Ayres, attorney for plaintiff: Take notice, that upon the affidavits, copies of
which are herewith served, and court files of the case, I will move said court at the county
court-house, on the 20th day of July, 1909, at the hour of 10 o'clock a.m. of said day, or as
soon thereafter as counsel can be heard, that the judgment entered by default against the
defendant in this action, and all subsequent proceedings therein, be set aside, for the reasons
following: That said judgment was obtained through mistake and fraud on the part of the
plaintiff, and that the defendant and its attorney were prevented from appearing in said
cause on the part of the plaintiff; that defendant has a good defense to said cause of
action, and that no notice of said default judgment was given to the defendant by the
plaintiff. G. W.
were prevented from appearing in said cause on the part of the plaintiff; that defendant has a
good defense to said cause of action, and that no notice of said default judgment was given to
the defendant by the plaintiff. G. W. Shutter-Cottrell, attorney for defendant. Supplemental
to this notice were filed affidavits of J. S. Correcco, president of the defendant corporation,
and by G. W. Shutter-Cottrell, attorney for defendant.
A review of the record discloses very clearly that the judgment could not be opened upon
the ground of fraud, as there is no basis for that contention, and no facts attempted to be
pleaded setting forth wherein any fraud was committed. While there is a serious question in
our minds as to whether or not the showing made by defendant's attorney is sufficient in law
to have warranted the court in setting aside the default judgment in this case upon the
statutory ground of mistake, yet, in view of the affidavits supplemental to the motion to set
aside the judgment and default, and the wide power of discretion vested in trial courts on
motions of this character in furtherance of justice, we affirm the order of the court in opening
the default judgment, but we think the court clearly erred when it ordered the complaint of
plaintiff dismissed.
The question of whether or not the plaintiff corporation was entitled to do business in this
state is a matter wherein the plaintiff was entitled to be heard and to have its day in court
before its action was summarily dismissed upon the showing made in the present case. The
following allegations of plaintiff's complaint: (1) That plaintiff is a corporation organized
and existing under and by virtue of the laws of the State of New York. (2) That defendant is a
corporation organized and existing under and by virtue of the laws of the State of Nevada. (3)
That commencing about January 27, 1909, and ending about March 6, 1909, the plaintiff sold
and delivered to defendant, at defendant's instance and request, and defendant bought and
received of plaintiff, goods, wares, and merchandise of the reasonable value of $718.50 (4)
That no part of said sum of $718.50 has been paid except the sum of $215, which was paid by
defendant to plaintiff on or about May 25, 1909are not sufficient to warrant the court in
dismissing the action of a foreign corporation, upon a motion of the character of the one
interposed in this case, without first giving that corporation the right to have its day in
court and to be heard as to whether or not it is guilty of any such transgression or laches
of the law of March 20, 1907, as would deprive it of the right to sue in courts of our state.
warrant the court in dismissing the action of a foreign corporation, upon a motion of the
character of the one interposed in this case, without first giving that corporation the right to
have its day in court and to be heard as to whether or not it is guilty of any such transgression
or laches of the law of March 20, 1907, as would deprive it of the right to sue in courts of our
state.
The unsworn motion of the attorney for defendant, moving to dismiss the plaintiff's
complaint, upon the allegations in said complaint, was not sufficient to warrant the court in
taking such judicial notice of said unsworn motion of the attorney for the defendant as to
deprive the plaintiff of its constitutional right of being heard upon the merits of the motion in
a proper proceeding as to whether or not it had complied with the law in question before
doing business in this state. There is nothing in the motion of the attorney for defendant, nor
in the pleadings, to show that the goods, wares, and merchandise alleged to have been
ordered, at the instance and request of defendant, and delivered by plaintiff and not paid for,
may or may not have been ordered before the enactment of the law above mentioned. Neither
can it be said, from the complaint on file, that the defendant may not have ordered and
purchased the goods from the New York corporation in the City of New York. Nor do we
think it can be said, from an examination of the complaint on file, that the plaintiff has not
complied with the provisions of the law in dispute. Neither can it be said, until the facts are
properly presented before the court, when the issue is properly raised, as to whether or not the
goods, wares, and merchandise may not have been ordered by mail and within the provisions
of the interstate commerce act. The question of whether or not the act mentioned is
constitutional or unconstitutional is not properly before us on this appeal, and it will be ample
time to consider that question, after the hearing of the issue when joined as to whether or not
the plaintiff corporation was legally doing business within this state, if said question is
raised and presented on an appeal perfected to this court.
The plaintiff is certainly entitled to its day in court to answer the objection raised by
defendant's attorney, before its complaint can be summarily dismissed, as was done in this
case, and to show, if it can, that it was properly doing business within this state and
entitled to enforce its lawful demands in our tribunals provided by law.
complaint can be summarily dismissed, as was done in this case, and to show, if it can, that it
was properly doing business within this state and entitled to enforce its lawful demands in our
tribunals provided by law.
The judgment of the lower court, in so far as it dismisses the complaint, is reversible error.
It is therefore ordered that the judgment of the lower court, in so far as it dismisses the
action of the plaintiff is concerned, is hereby reversed, with the order that the defendant have
ten days, or such other reasonable time as the lower court may allow, after the forwarding and
filing of the remittitur in this case, within which to interpose any legal defenses it may have in
resistance to the demands of the plaintiff's complaint.
____________
32 Nev. 246, 246 (1910) Malmstrom v. People's Ditch Co.
[No. 1844]
A. A. MALMSTROM, and His Wife, JOSIE MALMSTROM, Respondents, v.
PEOPLE'S DRAIN DITCH COMPANY, a Corporation, Appellant.
1. Waters and WatercoursesIrrigation DitchRight to Maintain.
Where defendant had owned, maintained, and used an irrigation ditch over the premises in controversy
for a period longer than the statute of limitations prior to plaintiffs' occupancy, defendant could maintain
the ditch in its present location and have water flow through the same to the extent of its capacity, or in the
volume contained in the ditch during the years defendant used it.
2. Waters and WatercoursesIrrigation DitchesOverflowBurden of Proof.
Where plaintiffs claimed that defendant so neglected to clean its irrigation ditch that a part of the water
overflowed onto plaintiffs' premises, and it appeared that the overflow was increased by plaintiffs changing
the size of the ditch, the burden is on plaintiffs to show how much damage, if any, was occasioned by that
part of the overflow which would have occurred solely by reason of defendant's failure to clean out the
ditch had its capacity not been further restricted by plaintiffs' acts.
3. Water and WatercoursesIrrigation DitchesOverflowContributory Fault.
Where plaintiffs claimed injury to their premises by the overflow of defendant's irrigation ditch, it was
not liable for that part of the injury which was caused by plaintiffs' own acts in excavating their cellar and
placing the foundation of their house so dangerously close to the ditch, or on such low and wet ground that
the cellar was flooded and the earth soaked and softened under the foundations by percolating water, which
might have come into and stood stagnant in the cellar if the ditch had never overflowed.
4. Waters and WatercoursesIrrigation DitchesContributory Fault.
An owner of property adjoining an irrigation ditch could not recover damages for overflows caused by
his own act in restricting the size of the ditch and in lowering the banks.
5. Husband and WifeOwnership of LandCommunity Property.
Where title to land purchased with money earned after marriage is taken in the name of the wife, the land
is community property under the husband's control so that an action for injury thereto may be maintained
by him alone.
6. EvidenceDocumentsContracts.
In an action for injuries to plaintiffs' property by the alleged overflow of an irrigation ditch, an instrument
between plaintiffs and defendant ditch company reciting that plaintiffs might maintain their house over and
on the ditch right of way so long as it was not detrimental or injurious to defendant's interests, and that
plaintiffs agreed to remove the same on notice, etc., was admissible as an admission that defendant was
entitled to maintain its ditch across the premises as it then existed, and as a recognition of
plaintiffs' obligation to change or remove any part of its obstruction, which might
impede the flow or injure the defendant.
as it then existed, and as a recognition of plaintiffs' obligation to change or remove any part of its
obstruction, which might impede the flow or injure the defendant.
7. DamagesIssuesEvidenceInjuries to Property.
Where, in an action for injuries to plaintiffs' property by the overflow of an irrigation ditch, the complaint
alleged that water stood stagnant in pools, and caused an offensive stench and unhealthy and unsanitary
odor to arise and surround and fill plaintiffs' dwelling-house, etc., evidence that the feme plaintiff was
rendered ill by the stench and unhealthy odors arising from the stagnant waters in the cellar was admissible,
although no special damages resulting from sickness was alleged, the court having charged that it was not
allowed to prove any special damage from sickness, and that the evidence was to be considered only on the
issue whether a recovery should be restricted to rental value.
8. DamagesDestruction of Crop.
The measure of damages for the total destruction of growing crops is the value of the probable yield of
the crops under proper cultivation, when matured, and ready for market, less the estimated expense of
harvesting the same, including the expense of necessary irrigation and the value of any portion of the crops
that may have been saved.
9. Waters and WatercoursesIrrigation DitchOverflowContributory Negligence.
When plaintiffs' acts and omissions had contributed to the injury, it was improper for the court to charge
that the doctrine of contributory negligence was not applicable to the case, if defendant knew of the danger
to plaintiffs' premises, and could have prevented the injury.
Washoe County; John S. Orr, Judge.
Action by A. A. Malmstrom and wife against the People's Drain Ditch Company.
Judgment for plaintiffs, and defendant appeals. Reversed and remanded.
Summerfield & Curler, for Appellant:
I. Counsel for appellant insist that the evidence on this case was insufficient to justify the
verdict of the jury, and the judgment based thereon, for the reason that the evidence shows
conclusively, and without any conflict, that if there was any damage done to the respondents'
land or the garden or the shade trees growing thereon, or to respondents' house, during the
years 1905, 1906, and 1907, by reason of the water overflowing from the banks of the ditch
onto and into these premisesthat that overflow was caused entirely by the respondent,
A. A. Malmstrom, himself, in narrowing the ditch and lessening the capacity of the ditch to
carry water.
overflowing from the banks of the ditch onto and into these premisesthat that overflow was
caused entirely by the respondent, A. A. Malmstrom, himself, in narrowing the ditch and
lessening the capacity of the ditch to carry water. That respondent, A. A. Malmstrom, did
interfere with appellant's ditch, and did make the ditch narrower, is shown by A. A.
Malmstrom's own testimony, and that the narrowing of the ditch did lessen the capacity of the
ditch is shown conclusively by the uncontradicted testimony of Mr. Mann, the expert for the
appellant, and is a matter of which the court and jury must have taken judicial knowledge.
II. The title and possession to two of the lots being in A. A. Malmstrom, and the title and
possession of one of the lots being in Josie Malmstrom, there being no joint ownership or
possession, and there being no joint injury, if actions could be maintained at all, A. A.
Malmstrom could maintain an action for injury to lots fifteen and sixteen, but not to lot
fourteen, and Josie Malmstrom could maintain an action for injury to lot fourteen, but not to
lots fifteen and sixteen. This is not a case of misjoinder of parties plaintiff, but a case where
the proof does not support the allegations of the complaint, and for that reason the evidence
was insufficient to justify the verdict of the jury, or the judgment based on said verdict.
III. When growing crops are alleged to have been destroyed by another, it is incumbent
upon the plaintiff to prove that there was a reasonable certainty that the crops would have
matured but for the wrongful act of the defendant, and that the true measure of damages
would be to allow the plaintiff the value of the yield when matured and ready for market,
reducing therefrom the estimated expenses of producing, harvesting and marketing the crop,
and deducting the value of any portion of crops that may have been saved. (Watt v. Nev. Cen.
R. R. Co., 23 Nev. 156; Candler v. Ditch Co., 28 Nev. 167.)
IV. It was error in the court to give respondents' instruction No. 2, as modified by the court,
and the instructions of appellant, for the reason that these instructions are in conflict with
proposed instruction No. 1, which was given by the court. They assume that the title of the
appellant to the land upon which its ditch was immediately situate was simply an
easement or right of way, whereas the pleadings establish appellant's ownership in the
land {see authorities heretofore cited), and is an assumption of fact contrary to the
pleadings.
upon which its ditch was immediately situate was simply an easement or right of way,
whereas the pleadings establish appellant's ownership in the land (see authorities heretofore
cited), and is an assumption of fact contrary to the pleadings. It is also an instruction to the
jury that the appellant was bound to use that ditch in such a manner that the respondents
would not be damaged thereby, even though the respondents interfered with the ditch, and the
acts of respondents, in such interference, were the proximate cause of the damage.
V. Instruction No. 11, as given, was error, for the reason that it was, in effect, an
instruction that if the appellant was negligent in any manner in keeping the ditch in repair that
the respondents could recover, although they had materially contributed to their own injury in
narrowing the ditch, and even though the acts of respondents themselves were the proximate
cause of the injury.
VI. Because the evidence in this case was insufficient to support the verdict of the jury,
and the judgment based thereon, and because of the errors committed by the court in the trial
of the case, appellant's counsel respectfully submit that the order of the court denying
appellant's motion for a new trial be reversed, and the cause sent back to the lower court for
retrial.
C. R. Lewers, for Respondents:
I. The contention made by the defendant, that the evidence is undisputed in showing that
Malmstrom had caused his own damage, is contradicted by the transcript, at numerous places,
where it is testified that the water which flooded the garden and filled the cellar of the house
came from a point on the defendant's ditch below the premises of the plaintiffs, and flowed
back onto his premises. In the light of this testimony and the observations made by the jury
upon the premises, this court cannot conclude as an undisputed fact that Malmstrom caused
his own premises to be flooded by putting in the planking up near the house; also, it is clear
from the testimony that, in leveling off his premises, Malmstrom must have increased the
average pipe of the banks of the ditch, because this would be the inevitable effect of leveling
the high places into the low.
into the low. Besides this, he put two twelve-inch planks on each side of the ditch across his
premises, as far as the house, and under this house had it planked six feet high. As the ditch
when planked up was nearly five feet wide and the banks nearly three feet high, it is hard to
see where any damage could be done the defendant by the embankments which Malmstrom
made.
II. No contention is made or can be made under the evidence that Malmstrom and his wife
occupied these premises in any way except jointly. They used them for the purpose of a
homestead and for a garden to supply vegetables for their own consumption. They lived there
together with their family, having all of the lots enclosed by a common fence, and no
distinction whatever was made in the use of the lots. The title to all the property was in effect
held in common, and as the trial court instructed the jury, without objection or exception on
the part of defendants, the mere fact of actual rightful possession was enough to authorize the
plaintiffs to bring an action for an interference with their property. This instruction states the
undisputed rule of law, and it is not necessary to cite authorities in support thereof. The entire
contention of the defendant that the plaintiffs have failed in showing a proper title must,
therefore, fail. In addition to this, the evidence indicated, and the jury so found, that the
damage was common to both of the plaintiffs by reason of their united occupation and use of
the premises.
III. Counsel for the defendant made the very ingenious contention on page 14 of their brief
that the plaintiffs can recover nothing for the damage caused them by the sinking of their
house, for the reason that the house was built over the ditch which belonged to the defendant.
Their position, in short, seems to be this: The complaint alleges that the defendant owned and
operated a drain ditch running through the land of the plaintiffs. The answer admits the
allegation of the complaint in this respect. This allegation, they say, must therefore be taken
to mean that the defendant owns more than a mere easement, or right of way, but actually
owns the land upon which the ditch was situated. As the plaintiffs built their house on this
land, they must be considered to have assumed the risk of whatever damage flowed from
that fact.
assumed the risk of whatever damage flowed from that fact.
IV. There is no rule of law that a licensee may be injured with impunity, or that damage to
him must be done wilfully. On page 16 of their brief, counsel cite Am. & Eng. Ency. Law, p.
1136, to the effect that a licensor is not responsible for the careless operation of his property.
In answer to this contention, we ask the court to read the very next heading on page 1137 of
the authorities cited to the effect that an invited licensee is entitled to have reasonable care
observed toward him. The rule is laid down that damages in a case of this kind are not to be
measured by the rental value of the premises, but are to be adjudged by the discomfort caused
the owner of the premises. It is based upon the theory that he has the right to use his premises
for their intended purposes, and that the law does not compel him to measure their value by
the rent he might get for them.
V. The objection to plaintiffs' instruction No. 12 is fully met by the opinion of the court in
Shields v. Orr Ditch Company, supra. This is not a case where the doctrine of contributory
negligence is applicable, as the evidence shows that the defendant was fully aware of the
condition of the premises at all times, and that even if the acts of the plaintiffs had anything to
do with the flooding of the premises, those acts had been committed long previous to the
injury and were known by the defendant and its officers.
VI. After the jury had heard the testimony, they made an examination of the premises, and
in the light of that testimony there is no doubt that what they observed there had a strong
influence in determining their verdict. This court cannot say that the verdict was contrary to
the evidence and to the observations of the jury on the ground. The amount of damages given
is small in comparison to the injury inflicted. We, therefore, submit that the order of the trial
court refusing the motion for a new trial should be sustained.
Plaintiffs sued to recover damages claimed to have been caused by the overflow of water
from defendant's ditch onto plaintiffs' three lots in the town of Sparks. The ditch had been
used for thirteen years, and the plaintiffs had erected a house upon and used the
premises for about three years prior to this suit.
been used for thirteen years, and the plaintiffs had erected a house upon and used the
premises for about three years prior to this suit. The old right of way grade, and track of the
Central Pacific Railway Company passed through the lots, and the defendant's drain ditch
crosses them diagonally. After the track was straightened and moved to another place a few
years ago, the plaintiffs and their grantor leveled the ground and filled in the excavation
thereon at the sides of the old grade. The plaintiffs erected a house there about twenty-five
feet in width by fifty feet in length, one end of which extends across the ditch, and underneath
the house they constructed a cellar which comes within five to nine feet of the ditch. In the
complaint they demand a total of $1,013 damages and an injunction. They allege that during
the spring and summer months of the years 1905, 1906, and 1907 defendant allowed moss
and weeds to grow and remain in the ditch and other debris to accumulate there, upon, above,
and below plaintiffs' premises to such an extent that during each of those years the water in
the ditch overflowed the banks into, upon, and over the plaintiffs' premises and stood stagnant
upon plaintiffs' garden or vegetables and yard of trees, and filled up and stood stagnant in the
cellar, and thereby caused an offensive stench and unhealthy and unsanitary odor to arise and
surround and fill plaintiffs' dwelling-house and the rooms therein, making life extremely
uncomfortable and almost unbearable, to the plaintiffs' damage in the sum of $600; that
because of the flooding of plaintiffs' premises the ground under plaintiffs' dwelling-house was
soaked and made so soft that the house settled and sank down to such an extent that the
plaintiffs have been compelled to expend for labor and materials to prevent the settling and
sinking of the house $169; that the overflow of the waters destroyed elm trees belonging to
the plaintiffs to their damage in the sum of $98 and vegetables to the value of $146. There
was a verdict rendered by nine of twelve jurors, and judgment in favor of plaintiffs for $576,
from which, and an order denying a motion for a new trial, the defendant has appealed.
The most important one of the numerous assignments of error is that the evidence fails to
support the judgment. In this connection we first consider to what extent, if any, the
defendant is liable on the principal item for which damage is claimed resulting from water
in the plaintiffs' cellar and the consequent unpleasant and unhealthy odors and the
settling of the house.
this connection we first consider to what extent, if any, the defendant is liable on the principal
item for which damage is claimed resulting from water in the plaintiffs' cellar and the
consequent unpleasant and unhealthy odors and the settling of the house. It is clear that the
defendant is entitled to maintain its ditch there and to have water flow through it to the extent
of its capacity or in the volume it flowed during the many years which defendant owned and
used the ditch, covering a period much longer than the statute of limitations, prior to the time
that the town was laid out or the lots occupied by the plaintiffs. (Ennor v. Raine, 27 Nev.
178.) It appears from the uncontradicted evidence as introduced by the plaintiffs and by the
defendant that the plaintiffs planked up the sides of the ditch to a width of four feet and three
inches, thereby reducing its width about one-half on top, and that they placed the timbers to
support the house about one foot from the edge of the ditch after it had been made narrower,
which timbers so placed would have been in the ditch if its width had not been so reduced.
The engineers estimated that the bottom of the cellar was about one foot to fourteen inches
higher than the bottom of the ditch, and that the banks of the ditch under the house and
opposite the cellar were two and one-half or three feet high.
It is shown and undisputed that, during the irrigating season and that part of the year for
which damage is claimed cellars in the neighborhood on ground of about the same and greater
elevation were flooded by percolating waters; that in laying water pipes, setting fence posts
and electric poles, and planting trees in that vicinity water was found two and two and
one-half feet from the surface. This condition was shown to exist in the street and in other
blocks at places more remote from the ditch than plaintiffs' cellar and lots. There was
testimony that seepage water came to the surface and stood in the street or road about fifty or
one hundred feet easterly from plaintiffs' place. It is not denied that these premises are on low
ground, and, after examination of all the testimony given during the trial, none is found which
raises any doubt that if the depressions on these lots were ever leveled up as high as the ditch,
the new earth in them settled so that they were lower than the surrounding country, and
that water running or seeping into them would remain there.
lower than the surrounding country, and that water running or seeping into them would
remain there. The plaintiff said that water would run up to his house and stand there like a
lake.
There is no evidence adverse to the conclusion that water percolated from the ditch or
from the soil into the cellar. True, the plaintiff stated that there was no water in the cellar in a
hole he dug in December; but this is not out of keeping with the testimony of witnesses for
the defendant that the water rises in that vicinity during the irrigating season and recedes
later, which is usual in many other localities. In the dry months a few inches of water in the
bottom of the ditch would be lower than the cellar; but when the ditch filled the water in it
would be considerably above the bottom of the cellar, into which it would naturally seep if
the surrounding soil itself were not saturated with percolating water. The plaintiff testified
that water seeped from the ditch into the cellar, that some of it ran over the banks of the ditch,
and that when the ditch was mowed and cleaned out the water receded. All this may be true,
and still the plaintiff may not be entitled to recover.
The defendant had the right to convey at least as much water in the ditch across the
plaintiffs' lots as the ditch carried before there was any interference with it by the plaintiffs. It
was only liable to keep the ditch in such clean condition and repair below the plaintiffs'
premises that no water would have escaped over the banks if the plaintiffs had not narrowed
or changed the ditch, and the defendant could keep it filled up to its former high-water mark.
Following the practice of former years, the ditch was cleaned in the spring, and the moss and
weeds mowed out of it in the summer, during each of the three years for which damages are
claimed. By excavating the cellar within a few feet of the ditch and placing the foundations of
the house on its banks and in the cellar at the time of the year when the ditch was dry or
carried only a little water, plaintiffs acted at their own risk, and defendant would not be liable
for injury caused by water seeping through the soil from the ditch or adjacent land into the
cellar after the ditch became filled with water in the irrigating season.
The cellar and timbers on which the house stood were placed so close to the ditch as to
encroach upon a reasonable width for seepage along defendant's right of way acquired by
prior use. If the defendant were liable under these conditions, the plaintiffs and others could
excavate cellars or lay foundations for buildings at the edge of the ditch along its course and
deeper than the ditch and recover damages for any injury caused by water percolating from
the ditch, resulting in the deprivation of its use by the defendant and the loss of its vested
right.
Defendant is liable for any damage caused by overflowing water which would have
overflowed if the plaintiffs had not made any change in the ditch; but defendant is not liable
for any overflow caused by the plaintiffs narrowing the ditch or lowering the banks, although,
if the defendant had kept the ditch better cleaned it might have carried through without injury
to the plaintiffs a volume of water less than the ditch originally would have carried. The
plaintiffs were at liberty to change the ditch to a flume, pipe, or culvert so long as they did not
lessen its capacity nor interfere with the flow as required for the beneficial uses or purposes
of the defendant; but they cannot recover for injury resulting from any change in the ditch
made by them. If the defendant so neglected to clean the ditch that a part of the water which
overflowed into the plaintiffs' premises would have overflowed if the plaintiffs had not
changed the size of the ditch, the burden of proof is upon the plaintiffs to show how much
damage, if any, was occasioned by that part of the overflow. At least a part of the overflow
was caused by the narrowing or lowering of the ditch by the plaintiffs, and they cannot
recover for any damage caused by that part. That the plaintiffs reduced its capacity by
narrowing it is shown without contradiction, and that they further reduced its capacity by
lowering its banks at or near the end of the flume seems almost conclusive under the
evidence.
The testimony of the plaintiff that the water ran through after the moss and weeds were
mowed out of the ditch, without showing the volume of water at that time, and the testimony
of the plaintiffs' engineer, not based on any figures taken in connection with his survey, that
he believed the water would run through, can have little, if any, force against the
testimony of the plaintiffs and their witnesses that the water ran over the banks of the
ditch on the premises, indicating that the ditch was lower there than at other places, and
the testimony on the part of the defendant that the water never ran over the banks at
that place before the plaintiffs changed the ditch, and that the water did not run over the
ditch at other places at the times during which plaintiffs claim to have been damaged.
taken in connection with his survey, that he believed the water would run through, can have
little, if any, force against the testimony of the plaintiffs and their witnesses that the water ran
over the banks of the ditch on the premises, indicating that the ditch was lower there than at
other places, and the testimony on the part of the defendant that the water never ran over the
banks at that place before the plaintiffs changed the ditch, and that the water did not run over
the ditch at other places at the times during which plaintiffs claim to have been damaged.
Considering that it is shown that the ditch was narrow and low where it crosses the premises,
it does not appear from the evidence that the water would have overflowed there if plaintiffs
had not reduced the capacity of the ditch and it had not been kept in better or cleaner
condition by defendant, and consequently the overflow from the ditch where it crossed the
lots may have resulted from the plaintiffs' own acts.
As an illustration of the evidence in this regard, Mrs. Malmstrom, one of the plaintiffs,
testified:
Q. Where did it come from? Above your premises, on your premises, or below your
premises? A. On both sides.
Q. What do you mean by that? A. Both sides of the ditch.
Q. Did it flow outI mean where, with reference to its being above your premises here, or
on the lots, or down here (indicating)? Where did it come over the banks? A. Right on the
lots.
The brother of Mrs. Malmstrom testified: A. I meant the water was running over the ditch
about the height of two inches.
Q. How long a space on the ditch was the water running over that way? A. It was running
over mostly here by the house, and down this way (indicating).
Q. And upon which side was it running? A. On both sides.
Q. Was it escaping over the ditch rapidly? A. Not so very rapidly, because the water does
not flow very rapidly.
Q. Where did it go to? A. Run on the land there.
Q. Well, did the water that was running over the ditch get back into the ditch further
down? A. No, sir.
Q. Where did it go then? A. Stayed right there.
Q. Just stayed on the land. In other words, you mean to convey the idea that it backed up
over the banks of the ditch onto the land, about two inches above the bank of the ditch, is that
what you mean? A. Yes.
Q. Now, about the north side of the ditch? A. Well, there was water running out on the
north side, too.
Q. Did it remain upon the land also, or did it escape from the land? A. No, it remained on
the land. It was all standing water, you know.
Q. And that was the same on the south side of the ditch; you mean to convey the idea that
it backed up over the back of the ditch and stood there, is that right? A. Well, it looked as
though it stood there; of course, it was pretty near all level, the ditch.
After the defendant had presented its evidence and its engineer had stated on the stand that
the shallowest place in the ditch was at the lower end of the flume, where it was one and
six-tenths feet deep at a point about half-way between the house and the fence on the
plaintiff's premises, and where it would overflow if the ditch were filled to its capacity in
other places, the plaintiff testified in rebuttal, as he did previously, that the water had run over
the ditch at a point below and about fifty feet east of his lots, and had flowed back onto them;
but this was not necessarily a denial of his original testimony that the water had flowed over
the banks of the ditch where it crossed the lots, as had been testified to by his other witnesses.
For the water to flow through the ditch across the lots and over the bank fifty feet beyond, and
from there back up over the banks of the ditch on the lots where it is conceded to have
overflowed, without first rising over the banks of the ditch on the lots, appears impossible.
The answer of a witness, induced by skilful cross-examination, that the water if obstructed or
raised would overflow at the upper end of the flume first, after he had testified that by his
survey the flume was much lower at the lower end, is not convincing that the water would run
over at the higher end first, nor that the plaintiff did not lower the ditch at the lower end of the
flume so that the water ran over.
Under these circumstances, we are unable to say that there is any substantial evidence
contradicting the testimony given by defendant's engineer and witnesses that the ditch is
low on the lots of plaintiff where he had reduced its width and boarded its sides, leveled
its banks, and planted vegetables within three feet of its edges.
is any substantial evidence contradicting the testimony given by defendant's engineer and
witnesses that the ditch is low on the lots of plaintiff where he had reduced its width and
boarded its sides, leveled its banks, and planted vegetables within three feet of its edges. If it
were admitted that the banks of the ditch had not been lowered, the reduction in width
conceded to have been made by the plaintiffs was sufficient to largely reduce its capacity, and
it is not shown that anything was done to offset this reduction. The fact that the water
overflowed there leads to the conclusion that the banks were not raised there, or raised
enough, by plaintiff to overcome the reduction in width. Plaintiff's engineer, who had made
an examination and taken a number of elevations, testified that he believed that the ditch
would carry through the lots as much water as would pass through the culvert or bridge a few
feet above plaintiff's house; but he gave no figures on which to base his conclusion. Such an
opinion cannot avail against the testimony of the plaintiffs and their numerous witnesses that
by actual demonstration the ditch failed to carry the water across the lots without
overflowing. The fact that the water ran over the banks on the premises indicates that the
ditch was lower there than at other places, notwithstanding the mere opinion of any witness to
the contrary, for the stubborn fact that water will seek its level and run over a low place in the
bank first must control. If the plaintiff at the time of boarding the ditch and making it
narrower digged it deeper, this would not materially add to its capacity if the additional depth
which he gave it was lower than the bottom of the ditch further down on its course. If the
ditch was only one and six-tenths feet deep at the lower end of the flume, as estimated by the
engineer, it may have been made lower at that point and filled in with the wash or sediment,
which would have a tendency to bring it up on the bottom to a level or uniform grade. If the
water receded after the ditch was cleaned and the moss cut out, this does not prove that if the
moss had not been cut out the water would have overflowed if the ditch had not been changed
by the plaintiffs. If its capacity had been reduced one-half across the lots by narrowing the
ditch and lowering its banks, it is quite possible that cutting out the moss would allow
whatever water was there to recede and flow through, but still would not allow the
passing of enough water to fill the ditch to its original capacity, which defendant was
entitled to have flow without becoming liable.
it is quite possible that cutting out the moss would allow whatever water was there to recede
and flow through, but still would not allow the passing of enough water to fill the ditch to its
original capacity, which defendant was entitled to have flow without becoming liable.
It appears that at least a part of the injury for which the plaintiffs demand the greater part
of the damages sought to be recovered was caused by their own acts in excavating the cellar
and placing the foundations of the house so dangerously close to the ditch, or on such low and
wet ground, that the cellar was flooded and the earth soaked and softened under the
foundations by seeping and percolating water which might have come into and stood stagnant
in the cellar and softened the ground and settled the foundations if the ditch had never
overflowed its banks. If the defendant were holding for any injury resulting to the plaintiffs
from their own acts under these circumstances, the owners of ditches that traverse the lands of
others would have little protection for their prior rights. If it be shown that some part of the
water which flooded the cellar or overflowed the ground came over the banks of the ditch
lower down than the plaintiffs' premises, or over the banks on his lots, and that such overflow
was not caused by any acts of the plaintiffs in changing the size of the ditch, still the burden
of proof would be upon the plaintiffs to show how much damage occasioned by such
overflow was caused by the defendant, which damage would have to be separated from that
caused by overflow from the ditch by reason of the reduction of its capacity by the plaintiffs,
for which they could not recover. There was a failure to make any such showing on the trial,
or to prove that the defendant had caused damage in an amount as large as that allowed by the
judgment, and consequently the evidence does not support the verdict.
It is urged that the plaintiffs failed to establish any title on which they can recover because
the moving of the track amounted to an abandonment of the right of way and caused a
reversion of the land to the government, leaving no right in the railroad company to convey to
the plaintiffs' grantor. It is unnecessary to determine whether there is any merit in this
contention, because plaintiffs' possession of the lots during the time for which they claim
damages was sufficient to enable them to maintain the action.
contention, because plaintiffs' possession of the lots during the time for which they claim
damages was sufficient to enable them to maintain the action.
It is claimed that because the deed to one of the lots was taken in the name of Mrs.
Malmstrom and the deed to the other lots was made to the husband there is a misjoinder of
parties; but it is shown that the lot for which the deed was made to her was paid for with
money earned after the marriage, and it has been held that under these circumstances, if the
deed is taken in the name of the wife, the land is still under the control of the husband the
same as other community property standing in his name. (Dimmick v. Dimmick, 95 Cal. 323,
30 Pac. 547; Estate of Boody, 113 Cal. 682, 45 Pac. 858.) Hence if the right to sustain the
action depended upon the deeds and was not supported by the joint possession, it would leave
the action as maintainable by him, with her merely as an unnecessary or surplus party.
At the time the plaintiff was erecting the house, some objection was made by defendant to
having it on the ditch, and he signed the following instrument:
This agreement made this 6th day of February, A. D. 1905, by and between the People's
Drain Ditch Company, the party of the first part, and A. A. Malmstrom, the party of the
second part, witnesseth: That for and in consideration of the mutual promises herein made the
said party of the first part agrees that the said party of the second part may maintain his
structure now in course of erection in Sparks, Washoe County, Nevada, over and upon the
ditch right of way of the said party of the first part so long as the same is not in the judgment
of the said party of the first part detrimental or injurious to its interest, and the said party of
the second part, and his successors in interest agrees to forthwith remove the same from and
off of the said ditch right of way of the said party of the first part forthwith at any time the
said party of the first part deems the maintenance of said structure to be detrimental or
injurious to its interests and notifies him to do so. People's Drain Ditch Company, by O. C.
Ross, President. A. A. Malmstrom.
Plaintiff has testified that he did not understand its meaning at the time he affixed his
signature, and that he believed it was an agreement on his part to keep the ditch cleaned
out under his building.
ing at the time he affixed his signature, and that he believed it was an agreement on his part to
keep the ditch cleaned out under his building. The instrument was objected to as being
without consideration and its admission refused. If it be contended that the right to the ditch
on the one part and to the lots on the other is fixed by law, and that this paper was without
consideration and did not constitute any conveyance or relinquishment, or even license, and
whether it be taken as written or as he testified he intended, it was an admission by the
plaintiff that the defendant was entitled to maintain its ditch across the premises as then
existing, and as such admissible as the recognition of an obligation on the part of the plaintiff
to change or remove any part of the building or obstruction placed by him which might
impede the flow or injure the defendant.
Objection was taken because the court allowed Mrs. Malmstrom to testify that she was
rendered ill by the stench and unhealthy odors arising from the stagnant water in the cellar
and on the premises. This evidence was not allowed for the purpose of proving any special
damage from sickness, and, whether recovery should be restricted to rental value as
contended or not, we think with the limitation placed upon it by the court it was properly
admitted under the allegation of the complaint that the water stood stagnant in pools and
caused an offensive stench and unhealthy and unsanitary odor to arise and surround and fill
plaintiffs' dwelling-house, making life extremely uncomfortable and almost unbearable to the
plaintiffs.
Upon a new trial the evidence relating to damage claimed for any vegetables or crops
destroyed should be governed by the rule in Candler v. Ditch Co., 28 Nev. 167, as far as the
circumstances permit.
Plaintiffs' instruction No. 1, given by the court, that it was not the duty of the plaintiffs to
take any steps to prevent any threatened overflow over their property, given by the court
without qualification, is objectionable in view of the evidence showing that the plaintiffs had
reduced the capacity of the ditch, for it became incumbent upon them to restore the size of the
ditch so that it would carry as much water across their premises as it would have conveyed
when they went there.
across their premises as it would have conveyed when they went there.
The following, plaintiffs' instruction No. 12, is also objectionable and should not have
been given: You are instructed that the doctrine of contributory negligence is not applicable
to cases of this nature if you believe that the defendant had knowledge of the danger to
plaintiffs' premises, and could have prevented the injury; and under such conditions no duty
would rest upon the plaintiffs to take steps to avoid the consequences of defendant's acts or
omissions.
If the doctrine of contributory negligence as understood in its technical sense by lawyers is
not applicable, it was unnecessary to refer to it in the instructions. It may have tended to
confuse and mislead the jury. Neither this nor any other instruction should be given upon
another trial which would intimate to the jury that the plaintiffs would have to bear
themselves, and could not recover from the defendant for, injury resulting from the acts of the
plaintiffs in narrowing the ditch or lowering its banks, or their negligence in failing to restore
its capacity so that it would carry as much water as it did before plaintiffs changed its size;
but, on the contrary, it will be proper to instruct the jury that the plaintiffs cannot recover for
any injury which resulted from such acts of negligence on their part. The instruction follows
too closely language used in the opinion in Shields v. Orr Ditch Co., 23 Nev. 354, which the
court may not have felt at liberty to disregard during the hurry of the trial, but a part of which,
after careful consideration, appears to be dictum or not applicable to the facts in the present
case. It was said in the decision there: An instruction also was asked to the effect that the
plaintiff should have exercised ordinary care to have avoided the consequences of defendant's
acts, and failing to do so the parties were in mutual fault. The doctrine of contributory
negligence is not applicable to cases of this nature where the defendant had knowledge of the
defects of its ditch and could have prevented the injury.
The facts are so materially different as to make the two cases widely distinguishable. There
the water leaked through the banks of the ditch on a rocky hillside and injured the crops of
the plaintiff, who had not narrowed or lowered, or reduced the capacity of, the ditch or
caused or contributed to the damage, and who was not guilty of contributory or other
negligence.
crops of the plaintiff, who had not narrowed or lowered, or reduced the capacity of, the ditch
or caused or contributed to the damage, and who was not guilty of contributory or other
negligence.
By narrowing or lowering or reducing the capacity in the dry season of the ditch involved
in this case where it crosses his premises, and failing to restore its capacity at the time of high
water, the plaintiff became guilty of negligence in not avoiding the consequences of his own
acts, for which it would not be just to allow him to recover. When using the language quoted
from the Shields case, Justice Belknap was considering a proposed instruction to the effect
that the plaintiff should have exercised ordinary care to have avoided the consequences of the
defendant's acts, and not the plaintiff's own acts, which are involved here, and which raise a
very different question, and it was held that the instruction was properly refused.
The judgment and order of the district court are reversed, and the case is remanded for a
new trial.
____________
32 Nev. 264, 264 (1910) Kapp v. District Court
[No. 1868]
CHARLES F. KAPP, Petitioner, v. THE SEVENTH JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Esmeralda, P. J. SOMERS, Judge of
said Court, and MARGARET G. KAPP, Respondents.
1. DivorceAlimony Pendente LiteScire Facias to Compel Payment.
The method of proceeding by a petition or complaint reciting an order for alimony pendente lite, its
nonpayment, the amount accrued and unpaid, and defendant's refusal to pay, and praying for judgment that
plaintiff have execution against defendant's property subject thereto, is substantially a writ of scire facias,
unknown to the Nevada practice.
2. ExecutionFinal Judgment as Prerequisite.
Execution will not ordinarily issue except to enforce a final judgment.
3. DivorceAlimony Pendente LiteExecution to Enforce Order.
As execution ordinarily issues only to enforce a final judgment, an interlocutory order for alimony
pendente lite will not be so enforced except where special statutory provision warrants it.
Section 27 of the act relating to marriage and divorce (Comp. Laws, 507) provides for the enforcement of
orders for alimony pendente lite as is provided in section 24 (Comp. Laws, 504), which provides for
enforcing orders by attachment, commitment, and requiring security, or by other means, according to the
usages of the courts. Held, that the words quoted do not authorize an order that execution issue to enforce
an interlocutory order, as enforcement of such orders to pay money is not according to such usage.
An order or judgment for execution to enforce payment of alimony pendente lite, not mentioning specific
property, cannot be supported on the theory that it directs application of specific property of defendant to
such object, and if execution were permitted to issue, it would be left entirely with the sheriff under the law
governing such cases.
Original proceeding. Certiorari by Charles F. Kapp against the Seventh Judicial District
Court for Esmeralda County, Peter J. Somers, Judge thereof, and Margaret C. Kapp, to review
an order for judgment, and the judgment thereon that Respondent Kapp have execution
against relator to enforce payment of alimony pendente lite. Order and judgment annulled.
Detch & Carney, for Petitioner.
Thompson, Morehouse & Thompson, for Respondents:
I. The certiorari does not lie, because the power to make an order for alimony pendente
lite in a divorce action is conferred specially by section 507, Compiled Laws, and the power
to enforce it is conferred specially by section 507 and 504, Compiled Laws. This, therefore,
gives the court, when it has jurisdiction of the action of divorce, complete jurisdiction to
make and enforce during the pendency of the action all orders for alimony. The court having
jurisdiction, the writ of certiorari does not lie. (Florence G. M. Co. v. District Court, 30 Nev.
391.) The court by the constitution of Nevada has the power to issue all writs proper and
necessary to the complete exercise of its jurisdiction; therefore, if a writ in the nature of
execution or an execution is necessary, it may issue the writ. The distinction between an
interlocutory order and a judgment as to an execution is simple and plain, in this, that an
interlocutory order can only be enforced by special action of the court, while a judgment is
enforced by the ministerial action of the clerk, upon request of the plaintiff. The one is set in
motion by the action of the court, and the other by the plaintiff recovering the judgment. In an
interlocutory order the plaintiff cannot act. He must seek action through the court. In a final
judgment he, as a matter of right, can act, by taking out execution. In the interlocutory order
the matter is always pending and can be acted upon at any time by the court, and it may be set
aside, modified or enforced, as the court may deem meet. In a penal judgment, the power of
the court ends, unless there is some reservation in the judgment, with the entry of judgment,
and then the law steps in and provides its enforcement, by the plaintiff, through execution.
II. Our statute (Comp. Laws, 504) says that the order may be enforced by other means,
according to the usage of courts and the circumstances of the case. Here is full statutory
power to adopt any means or writ, which courts adopt to that end, and leaves the court to
determine, if the circumstances warrant, what means it shall take. If some statutory mode is
the usage of the courts elsewhere, then such statutory mode may be used in this state, because
the term usages of court" is a statutory authority for our courts to adopt that mode.
court is a statutory authority for our courts to adopt that mode. The word usage is simply
the method, the procedure, the means, by which courts enforce their orders. If courts, whether
by statute or otherwise, enforce such orders by an execution, then our courts may adopt such
usage. And usage allows execution (15 Ency. Pl. & Pr. 361.)
III. Mr. Freeman (sec. 10, Free. on Ex.) says: If a court is competent to pronounce
judgment, it must be equally competent to issue execution to obtain its satisfaction. A court
without the means to execute its judgments and decrees would be an anomaly in
jurisprudence, not deserving the name of a judicial tribunal. It would be idle to adjudicate
what could not be executed, and the power to pronounce necessarily implies the power of
executing. To the same effect is U. S. v. Johnson & Co., 73 U. S. 166. It would be strange,
indeed, that a court should have full power to make an order, and no power to enforce it. (See
144 Fed. 594, as to jurisdiction.)
IV. It would be strange, indeed, under the constitution and laws of this state giving full power
to issue all writs necessary and proper, that a court cannot select upon due notice and hearing
what writ shall issue. At any rate, this proceeding, even if erroneous, was within the
jurisdiction of the court, for, as is said in Ex Parte Moran, 144 Fed. 594, at page 604:
Jurisdiction of a question is the lawful power to enter upon the consideration of, and to
decide it. It is not limited to making correct decisions. It includes the power to decide an issue
wrong as well as right. (Phillips v. Welsh, 12 Nev. 153; In re Wixom, 12 Nev. 219; Maxwell
v. Rives, 11 Nev. 214.)
This is an original proceeding in certiorari to review a certain order for judgment and
judgment to the effect that the respondent Margaret G. Kapp have execution against the
property subject to execution of the petitioner herein, and thereby to recover the amount of
$2,100 due from petitioner herein to the respondent Margaret G. Kapp on account of unpaid
alimony pendente lite, allowed by the court in the divorce proceedings, now pending,
instituted by said respondent Margaret G.
ent Margaret G. Kapp against petitioner herein, which said alimony pendente lite was at the
rate of $200 per month.
The method adopted to secure this order and judgment was a petition or complaint reciting
the prior order for alimony pendente lite, the nonpayment thereof, the amount of accrued and
unpaid alimony, and the refusal of the defendant to pay the same, and praying for a judgment
that the plaintiff have execution against the property of defendant subject to execution. This
method of procedure is substantially that of the writ of scire facias and is unknown to our
practice. (Humiston v. Smith, 21 Cal. 130; Cameron v. Young, 6 How. Prac. 372; Alden v.
Clark, 11 How. Prac. 209; U. S. v. Ensign, 2 Mont. 396; Wilson v. Shively, 10 Or. 273; 19
Ency. Pl. & Pr. 266; Comp. Laws, 3096.)
Counsel for respondent, however, says: This proceeding was taken, not as an action, but
to get the various sums due united into one order, and the order of the court, that the same
should be enforced by the writ of execution, and that this proceeding, even if erroneous,
was within the jurisdiction of the court. Execution will not ordinarily issue except to enforce
a final judgment. An interlocutory order for alimony pendente lite will not be enforced by
execution except where there is a special statutory provision warranting it. (14 Cyc. 796.) We
have been unable to find a single case wherein an interlocutory order for alimony pendente
lite was enforced by execution.
Section 27 of An act relating to marriage and divorce (Comp. Laws, 507) provides: In
any suit for divorce now pending, or which may hereafter be commenced, the court or judge
may, in its discretion, upon application of which due notice shall have been given to the
husband, or his attorney, at any time after the filing of the complaint, require the husband to
pay such sums as may be necessary to enable the wife to carry on or defend such suit, and for
her support and the support of the children of the parties during the pendency of such suit;
and the court or judge may direct the application of specific property of the husband to such
object, and may also direct the payment to the wife for such purpose of any sum or sums that
may be due and owing to the husband from any quarter, and may enforce all orders made
in this behalf, as is provided in section twenty-four of this act.
sum or sums that may be due and owing to the husband from any quarter, and may enforce all
orders made in this behalf, as is provided in section twenty-four of this act. (As amended,
Stats. 1865, 99.) The provisions of section 24, referred to (Comp. Laws, 504), read: And all
such orders may be enforced, and made effectual, by attachment, commitment, and requiring
security for obedience thereto or by other means, according to the usages of courts, and to the
circumstances of the case.
Counsel for respondent relies upon the expression, or by other means, according to the
usages of courts, to support the authority of the court to order the judgment that execution
issue; but the enforcement of interlocutory orders for the payment of money by execution
does not appear to be according to the usages of courts, but may be resorted to only where
the statutes specifically so provide. A few states have statutory provisions that may warrant
the issuance of an execution to enforce any order for the payment of money. (Halstead v.
Halstead, 21 App. Div. 466, 47 N. Y. Supp. 649; Van Cleave v. Bucher, 79 Cal. 600, 21 Pac.
954.) The only provision for an execution in our civil procedure is after final judgment.
The order or judgment cannot be supported upon the theory that it directs the application
of specific property of the defendant to such object, for no specific property is mentioned in
the order or judgment. If execution were permitted to issue, it would be left entirely with the
sheriff under the law governing in such cases.
Whether the trial court is or is not empowered to order a sale of specific property of the
husband, if deemed necessary, is a question not presented in this proceeding; but we are
convinced that it has no power to enter a general order or judgment that execution issue as
was done in this case.
The order and judgment complained of were without the jurisdiction of the court and void,
and the same are ordered annulled.
____________
32 Nev. 269, 269 (1910) McCafferty v. Flinn
[No. 1850]
EUGENE F. McCAFFERTY, Respondent, v. MAY M.
FLINN, and E. L. CASE, Appellants.
1. Dismissal and NonsuitStatutesSufficient Case for a Jury.
Section 3246 of the Complied Laws, subdivision 5, authorizes the granting of a nonsuit by the court on
motion of defendant when on the trial the plaintiff fails to prove a sufficient case for the jury. Held, that
the words quoted were not words of limitation as to cases which were only tried before a jury, but were
intended to prescribe the test of the sufficiency of the evidence; and hence the court's right to grant a
nonsuit extended to equity cases, and was not limited to those only which were triable to a jury.
2. TrialNonsuitEvidence.
A motion for a nonsuit must be denied if, taking every fact which plaintiff's evidence tends to prove and
essential to his recovery and every inference or fact that can be legitimately drawn therefrom, and giving
plaintiff the benefit of all legal presumptions arising from the evidence interpreted most strongly against the
defendant, a jury might find in plaintiff's favor.
3. Appeal and ErrorGrounds of Ruling.
A ruling will not be reversed on appeal merely because an erroneous ground was given therefor if it was
in fact correct.
4. Appeal and ErrorDenial of NonsuitWaiver.
Defendants, not having stood on their motion for nonsuit, which was denied, but having proceeded to the
introduction of proof, could not claim a reversal for error in denying the nonsuit.
5. TimeExcluding SundayFiling Cost Bill.
The civil practice act, section 486 (Comp. Laws, 3581), declares that the party in whose favor a judgment
is rendered and who claims costs shall deliver his cost bill to the clerk within two days after the judgment
or decision as provided by law; and section 3601 declares that the time within which an act may be done
shall be computed by excluding the first day and including the last, except that, if the last day shall be
Sunday, it shall be excluded. Held, that, where a judgment was rendered on Saturday, the time within which
the successful party could file his cost bill expired on Monday.
6. Appeal and ErrorNew TrialReview.
Where a motion for new trial was made on the ground of newly discovered evidence, and also because
the evidence was insufficient to sustain the judgment, and it appeared that there was a substantial conflict
therein, an order granting the motion would not be disturbed on appeal.
Action by Eugene F. McCafferty against May M. Flinn and another. From an order
granting plaintiff a new trial as to defendant Case, defendant Flinn having been dismissed,
Case appeals.
defendant Case, defendant Flinn having been dismissed, Case appeals. Affirmed. Petition for
rehearing. Denied.
Edward C. O'Brien and Fred B. Hart, for Appellant:
I. Applications for new trials upon the ground of newly discovered evidence must be
looked upon with suspicion and disfavor because the temptations to make a favorable
showing after having sustained a defeat is great. A party who relies upon that ground must
make a strong case, both in respect to diligence on his part in preparing for the trial, and as to
the truth and materiality of the newly discovered evidence, and that, too, by the best evidence
which can be obtained. If he fails in either respect his motion must be denied. (Arnold v.
Skaggs, 35 Cal. 687, 688; Caminster v. Garrison, 18 Wis. 594.) Due diligence must be
shown in the affidavit on motion for a new trial by setting forth the evidentiary facts showing
what the movant did, so that the court itself can determine from the facts whether or not due
diligence was exercised in seeking such evidence in preparing their case; less than that will
not be sufficient. The affidavit on motion for a new trial must state not only that the supposed
newly discovered evidence was discovered since the trial, but also that the movant exercised
due diligence in seeking the evidence prior to the termination of the trial. (Howard v. Winters,
3 Nev. 543.) It is not sufficient that the affidavit state ultimate facts. (Loring v. Davenport, 99
Iowa, 479; 14 Ency. Pl. & Pr. 905.) The question as to whether or not the movant exercised
due diligence is for the court, not for the movant. (State v. Schaeffer, 56 Mo. App. 496;
Brooks v. Lyons, 3 Cal. 113; 14 Ency. Pl. & Pr. 752.)
Seeds & Harwood, for Respondent.
This action was instituted by plaintiff in the District Court of the Second Judicial District
of the State of Nevada, in and for the County of Washoe, to recover from defendants one
Pope Toledo automobile, type XII, model 1906, or the sum of $1,200, alleged to be its
value, in case a delivery could not be had, together with $2,500 damages and costs of
suit.
$1,200, alleged to be its value, in case a delivery could not be had, together with $2,500
damages and costs of suit. Prior to proceeding with the trial, an agreement was entered into
between the plaintiff and the defendant May M. Flinn upon considerations mutually
satisfactory to both, wherein the said defendant May M. Flinn was released of any
responsibility, and the suit continued against defendant Case. It appears from the testimony
that on the 15th day of May, 1908, the plaintiff was the owner of the automobile in question,
and that the defendants purchased from plaintiff said automobile, giving plaintiff therefor an
order for 5,000 shares of stock in the Battling Nelson Mining Company, which stock plaintiff
and defendants agreed as being of the value of $350; that in addition to this mining stock the
plaintiff received from defendants, in further consideration of said automobile, two
promissory notes from May M. Flinn for $200 and $150, respectively, and the joint note of
defendants in this action for the sum of $500.
It is alleged by plaintiff that defendants procured possession of said automobile by deceit
and fraud in falsely representing the value of the mining stock aforesaid and the nature, value,
and character of the mining claims of said company, and further alleged that the company had
forfeited its mining claims prior to the transfer of said stock as part consideration for said
automobile. Plaintiff further alleged that defendants fraudulently represented defendant Flinn
to be worth $75,000 and the owner of other resources of great value, wherein as alleged the
defendant Flinn was a woman with no means whatsoever, and that the value of said
promissory notes through said misrepresentations was a part of the scheme to defraud
plaintiff out of his automobile. The case came on regularly for trial before the court without a
jury, and, after the hearing on the merits of the case, judgment was rendered in favor of
defendant Case. A motion for a new trial was regularly made by plaintiff, the application
being based upon five of the seven grounds specified in section 195 of our civil practice act
(Comp. Laws, 3290), which enumerates the various grounds upon which a new trial may be
sought, and more particularly upon the ground that the evidence was insufficient to justify the
decision of the court, and since the trial plaintiff had discovered material new evidence
which he could not, with reasonable diligence, have discovered and produced at the
former trial.
decision of the court, and since the trial plaintiff had discovered material new evidence which
he could not, with reasonable diligence, have discovered and produced at the former trial.
This latter ground was supported by the affidavits of plaintiff and H. J. Darling. The motion
for a new trial was regularly heard and argued, and the trial court granted a new trial. From
this order granting a new trial and other assigned errors which we will hereafter discuss and
consider, defendant appeals.
Defendant assigns as error the action of the trial court in refusing to entertain his motion
for a nonsuit at the conclusion of the plaintiff's case. After an examination of the evidence
adduced by plaintiff in chief under the rule recently reiterated in the case of Burch v.
Southern Pacific Company, 32 Nev. 75, as to when courts should grant or deny motions for
nonsuit, we think the court would be obligated in the present case to deny the motion of
defendant for a nonsuit, which we will hereafter show, yet we believe the court erred in
denying the motion upon the specific ground assigned by the court, to wit, that in cases tried
before the court without a jury no motion for a nonsuit could be entertained. In order that this
mooted question of practice may be settled, let us view the statute in question in the light of
the common law and the decisions which may bear on a proper construction to be given said
section. Section 3246 of our Compiled Laws enumerates in what cases a dismissal of the
action or nonsuit will be granted; the fifth subdivision of said section reading as follows:
FifthBy the court, upon motion of the defendant, when upon the trial the plaintiff fails to
prove a sufficient case for the jury. We think the proper construction to be placed upon this
subdivision is that the rule as to the granting or refusal of a motion for a nonsuit should be the
same, whether the trial is had before the court or a jury.
We think that the legislature intended, when it stated that a nonsuit would be granted when
the plaintiff failed to prove a sufficient case for a jury, that these words were not meant as
words of limitation as to cases which were tried only before a jury, but they were meant to be
a guide to the court as a statutory test of the sufficiency of the evidence; the test being that, if
the plaintiff proved a case which would be sufficient to submit to a jury where a jury were
had, the court, if the case was tried before the court without a jury, would be warranted
and obligated to deny the motion; but, if the plaintiff failed to make such a case which
would be sufficient to submit to a jury, the court must grant the motion.
that, if the plaintiff proved a case which would be sufficient to submit to a jury where a jury
were had, the court, if the case was tried before the court without a jury, would be warranted
and obligated to deny the motion; but, if the plaintiff failed to make such a case which would
be sufficient to submit to a jury, the court must grant the motion. (Freese v. Hibernia Savings
Society, 139 Cal. 392, 73 Pac. 172.) Under the common law a defendant could demand a
ruling on the sufficiency of the case made by plaintiff at any time before the jury retired,
where it appeared that plaintiff had not made a sufficient case by demanding a nonsuit, and, if
warranted, it would be granted.
In Burch v. Southern Pacific Company, 32 Nev. 75, in considering the rule to be applied
by the court in granting or refusing a motion for a nonsuit, we said:
The rule has been well established in this and other courts that, in considering the
granting or refusing of a motion for nonsuit, the court must take as proven every fact which
the plaintiff's evidence tended to prove, and which was essential to his recovery, and every
inference of fact that can be legitimately drawn therefrom, and give the plaintiff the benefit of
all legal presumptions arising from the evidence, and interpret the evidence most strongly
against the defendant. (Fox v. Myers, 29 Nev. 183; Patchen v. Keeley, 19 Nev. 409; Hanley v.
California Bridge Co., 127 Cal. 237, 59 Pac. 577, 47 L. R. A. 597; Lowe v. Salt Lake City, 13
Utah, 91, 44 Pac. 1050, 57 Am. St. Rep. 708; Brown v. Warren, 16 Nev. 228; Railway Co. v.
Lowery, 74 Fed. 463, 20 C. C. A. 596; Insurance Co. v. Rhea, 123 Fed. 9, 60 C. C. A. 103.)
The rule has been well established that a case should not be withdrawn from the jury
when reasonable men might fairly differ on questions of fact as to whether or not a plaintiff
was guilty of such negligence as to constitute contributory negligence, and the conclusion that
follows as a matter of law, unless the testimony is so conclusive as to compel the court to set
aside a contrary verdict. (Solen v. Railway Co., 13 Nev. 127; Linden v. Anchor Co., 20 Utah,
134, 58 pac. 358; C. & N. W. R. Co. v. DeClow, 124 Fed. 142, 61 C. C. A. 34; Texas Ry. Co.
v. Cox, 145 U. S. 606, 12 Sup. Ct. 905, 36 L. Ed. 829; Phoenix Assur. Co. v. Lucker, 77 Fed.
243, 23 C. C. A.
Phoenix Assur. Co. v. Lucker, 77 Fed. 243, 23 C. C. A. 139; Phoenix Mutual Life Ins. Co. v.
Doster, 106 U. S. 32, 1 Sup. Ct. 18, 27 L. Ed. 65; Conn. Ins. Co. v. Lathrop, 111 U. S. 615, 4
Sup. Ct. 533, 28 L. Ed. 536; Gunther v. Liverpool Assur. Co., 134 U. S. 116, 10 Sup. Ct. 448,
33 L. Ed. 857; Haines v. McLaughlin, 135 U. S. 598, 10 Sup. Ct. 876, 34 L. Ed. 290.)
In so far as this particular assignment of error is concerned, while the court erred in
denying the motion for a nonsuit on the ground specified by the court, yet the evidence was
such that the motion for a nonsuit should have been denied, and such error is therefore not
prejudicial to the rights of defendant. Anyway, appellants not having stood on their motion
for a nonsuit, they are in no position to ask this court to reverse the judgment on this error
assigned. As was stated by this court in the case of Reno Brewing Co. v. Packard, 31 Nev.
433: We need not consider, we think, the contention of counsel for appellant that the trial
court should have sustained the motion for a nonsuit. Whatever, if anything, was lacking to
establish plaintiff's right of recovery at the time it rested its case, was certainly furnished by
the testimony of the defendants. Where such a condition exists, the appellate court would not
be warranted in reversing a judgment. (Power v. Stocking, 26 Mont. 478, 68 Pac. 857; City v.
Lewis, 34 Wash. 413, 75 Pac. 982.)
It appears from the evidence in this case that the purported sale of the automobile in
question, which gave rise to this controversy, was made on the 15th day of May, 1908. The
plaintiff alleges that the sale was induced by false representations and fraud, and issue was
regularly joined thereon. In view of the testimony of the plaintiff that Case represented the
stock in the mining company as a working mine at the time of the purported sale, and that by
reason of a strike in the property at or about the time of the sale, as represented by Case, he
raised the agreed value of the 5,000 shares of stock from $300 to $350, and the further
testimony adduced that the mine had forfeited its legal existence on January 1, 1908,
preceding the sale, by reason of its failure to do its annual assessment work, as required by
law, and that the West Comstock Mining Company was in possession of the same mining
ground represented by Case as belonging to the Battling Nelson Mining Company on
which the purported strike was made, impelling Case to advance the price of the stock
when that company had not claimed the mining ground in question since the preceding
January, and other testimony unnecessary at the present time to review, we think, under
the rule above stated, the court would have been obligated to deny the motion for a
nonsuit.
ground represented by Case as belonging to the Battling Nelson Mining Company on which
the purported strike was made, impelling Case to advance the price of the stock when that
company had not claimed the mining ground in question since the preceding January, and
other testimony unnecessary at the present time to review, we think, under the rule above
stated, the court would have been obligated to deny the motion for a nonsuit.
Appellant assigns as further error the action of the trial court in striking out defendant's
cost bill upon motion of plaintiff, for the reason it was not filed within the time required by
law. It appears that the judgment in this case was rendered on a Saturday, and that the cost
bill was not filed until the following Tuesday. Section 486 of our civil practice act (Comp.
Laws, 3581) provides that the party in whose favor judgment is rendered and who claims his
costs shall deliver to the clerk of the court within two days after the judgment or decision, or
such further time as the court or judge may grant, his cost bill as provided by law. In this case
no further time was granted, and we must be guided by the time required by the statute. The
question now presents itself as to whether or not the trial court erred in striking the cost bill
by reason of it not being filed within the time required by law. Section 3601 of our Compiled
Laws provides: The time within which an act is to be done, as provided in this act, shall be
computed by excluding the first day and including the last. If the last day be Sunday, it shall
be excluded. Appellants contend that the first day being Saturday, it should have been
excluded, and the following day, being Sunday, it should have been excluded also. Therefore
appellant would have all of Monday and Tuesday as the full two days allowed by the statute
to file his cost bill. We do not so construe the statute, or believe it to be the law. It has been
the settled practice in this state so long that custom has practically crystallized it into law that
where Sunday intervenes between the first and last days to count Sunday as a regular day.
Undoubtedly the rule is in computing time in this state that the first day is to be excluded and
the last day included, providing the last day does not fall on Sunday, in which event Sunday
would be excluded and another day given.
which event Sunday would be excluded and another day given. In the present case Saturday
was properly excluded, and appellant had all of Monday within which to file his cost bill,
and, not having filed the same until the following Tuesday, the court properly struck the same
from the files. Had the legislature intended to exclude Sunday from being counted as a day,
when it falls during the first and last days, we believe it would have so stated, particularly in
view of the fact that it has made special reference as to when Sunday is to be excluded, and,
according to well-known rules of statutory construction, we think, the statute should be
construed as indicated.
We come now to consider the main error assigned by counsel for appellant, that the trial
court erred in granting the motion for a new trial by reason of newly discovered material
evidence found after the trial which could not have been discovered with the diligence
required by law. As before stated in this opinion, the motion for a new trial was made on five
of the seven grounds provided by the statute for the securing of new trials. Upon the
particular ground contended by counsel for appellant that plaintiff did not make a sufficient
showing in his application for a new trial, affidavits of the plaintiff and H. J. Darling were
introduced in support of the application for a new trial. The affidavit of plaintiff laid special
stress upon the particular ground that the evidence was not sufficient to sustain the judgment
of the court. The affidavit of Mr. Darling stated, in effect, that while traveling on the railroad
between Reno and San Francisco during the month of February the defendant Case told the
deponent Darling that the claims of the Battling Nelson Mining Company had been forfeited,
thereby making this evidence material in showing that the defendant Case knew of the
worthlessness of the mining claims prior to the 15th day of May, the date on which the sale of
the automobile took place. This evidence, respondent claims, if produced, would warrant the
court in reversing its judgment. The court, in passing upon the application for a new trial, did
not grant the new trial exclusively upon the showing made by the affidavits of the plaintiff
and Mr. Darling, but stated that the newly discovered evidence offered "in connection with
other evidence produced by plaintiff upon the trial of the case" was sufficient to entitle
plaintiff to a new trial.
covered evidence offered in connection with other evidence produced by plaintiff upon the
trial of the case was sufficient to entitle plaintiff to a new trial.
In view of the broad discretion vested in district courts in granting new trials, where the
court is of the opinion that the evidence adduced at the trial, taken in connection with the
newly discovered evidence, is insufficient to support the judgment, and where the record
discloses a motion for a new trial is made on the ground of newly discovered evidence, and
the further ground that the evidence is not sufficient to sustain the judgment, and a review of
the evidence discloses that there is a substantial conflict in the evidence, the rule is well
established that appellate courts will not disturb the order granting the motion for a new trial.
The order of the trial court in granting the new trial is affirmed. (McLeod v. Lee, 14 Nev.
398; 29 Cyc. 913-918; Wall v. Trainor, 16 Nev. 131.)
It is so ordered.
On Petition for Rehearing
Per Curiam:
The petition for rehearing is hereby denied. (June 7, 1910.)
___________
32 Nev. 278, 278 (1910) Tonopah and Goldfield Railroad Co. v. Fellanbaum
[No. 1847]
TONOPAH AND GOLDFIELD RAILROAD COMPANY, a Corporation, Respondent, v.
JOHN DOE FELLANBAUM, P. D. PAYNE, J. H. ALEXANDER, and JAMES COE,
Appellants.
1. Public LandsPatentsConclusiveness.
Though the action of the land office in issuing a patent to public land be considered as conclusive as the
judgment of a judicial tribunal, it may be overthrown where the circumstances under which it was issued
indicate a lack of jurisdiction of the subject-matter or of the person whose rights are involved, which would
render a judgment void; and hence a patent issued under the act of Congress of June 4, 1897 (30 Stats. 36,
c. 2), providing that, where a tract covered by a patent is included in a public forest reservation, the owner,
if he desires, may relinquish the tract to the government, and select in lieu thereof a tract of vacant land
open to settlement, in a proceeding in which persons having prior possession of the land granted at the time
of the application for the patent are not made parties or given notice, is not conclusive; the land office in
such case having had no jurisdiction over the parties in possession.
2. Public LandsPatentsRequisites and Validity.
The acts of Congress control the force of patents, which cannot be varied in their effect by the omission
from them of statutory provisions, or the insertion of other or different ones.
3. EvidencePresumptionsContinuance of Condition.
A condition shown to exist at a particular time is presumed to continue thereafter, but there is no
presumption that it had continued for any length of time previously; and hence from evidence that adverse
claimants were in possession of land when patented by others, and six months previously thereto, no
presumption could arise that claimants were not in possession at the time application for the patent was
made.
4. Public LandsPatent to Land Regular on its FacePresumptions.
A patent issued without notice under the act of Congress of June 4, 1897 (30 Stats. 36, c.2), providing
that, where land covered by a patent is included in a public forest reservation, the owner may relinquish the
tract and select in lieu thereof vacant land open to settlement, regular on its face when introduced in
evidence, only raises a presumption that the government had conveyed the land to the patentee, and that the
land was vacant when the patent was issued, the presumption being rebuttable by proof that the land was in
the possession of adverse claimants at the time of and for six months prior to the date of the patent.
5. Public LandsSelection and ApplicationEvidence.
A power of attorney by an applicant for public lands reciting that applicant had surrendered to the
government certain land by which it became entitled to select other land in lieu thereof, that it had
constituted a certain person its attorney to enter and take possession of such land selected by it, was no
proof, and raised no presumption, that a selection of, or application for, land described in the
patent subsequently issued to it was made, nor that proof of the character of the land
patented was made to or accepted by the land office.
that a selection of, or application for, land described in the patent subsequently issued to it was made, nor
that proof of the character of the land patented was made to or accepted by the land office.
6. EjectmentBurden of ProofOwnership of Land.
Where plaintiff sues to recover land alleged to belong to it, under patent from the United States, and
claimed by defendants who deny any rights of plaintiff under the patent, the burden is upon plaintiff to
prove its ownership, and it is not incumbent on defendants to establish a negative.
7. Public LandsPatent to Vacant Lands.
If public land was vacant when a patent thereto under a statute allowing the patenting of vacant land
would take effect by relation, it would establish a complete title in the patentee, though the patentee did not
have possession of the land prior to possession of others before issuance of the patent.
8. CostsNecessity of Demand Before Suit.
In an action to recover possession of land claimed by plaintiff under patent from the United States, if
defendants were in rightful possession previous to the patent, and were not given notice of the application
for the patent and claimed no right as against the patent, a demand upon them for possession would be
necessary before judgment could be recovered against them for costs.
9. New TrialAppeal and ErrorReviewNonsuit.
A question presented on motion for nonsuit is a question of law depending upon whether there is any
evidence to support a judgment for plaintiff, and may be reviewed either on motion for new trial or on
appeal from the judgment.
Norcross, C. J., dissenting.
Action by the Tonopah and Goldfield Railroad Company against John Doe Fellanbaum
and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new
trial. On petition for rehearing. Granted.
James Donovan, for Appellants:
I. The court erred, as set forth in specification No. 6, in sustaining the objection to the
following question: Do you know whether there were any other people living or residing
upon this ground during the period of time that you have described as six months prior to
August 15, 1907? This question was pertinent to show, not only that the defendants were
residing upon the land prior to the 15th of August, 1907, but that a great number of
people were residing there; the purpose being to show that at the time the forest reserve
scrip was laid on this land that it was fraudulently laid, because affidavits had to be filed
showing the land to be vacant, and if it was not vacant, then no scrip could be placed
upon it.
were residing upon the land prior to the 15th of August, 1907, but that a great number of
people were residing there; the purpose being to show that at the time the forest reserve scrip
was laid on this land that it was fraudulently laid, because affidavits had to be filed showing
the land to be vacant, and if it was not vacant, then no scrip could be placed upon it.
II. Specification No. 8. Before calling the attention of the court to this specification we
desire to state that the only evidence offered on the trial on behalf of the plaintiff was the five
exhibits; then the plaintiff called three witnesses to show that the defendants were on the land
described in the plaintiff's complaint. Then the plaintiff rested. This was all the evidence there
was offered on the part of the plaintiff, and the eighth specification of error shows that the
court erred in holding that it was only necessary for the plaintiff to recover in ejectment to
prove, first, that the plaintiff had the legal title; second, that the defendants were in possession
of the land when the plaintiff acquired legal title, and that was sufficient to maintain a suit in
ejectment. The court erred in this, that it could be true that the plaintiff could have the legal
title and the defendants could be in possession when the plaintiff acquired the legal title, and
still no right of action could exist in ejectment against the defendants, because the
presumption of law is that the defendants were rightfully in possession until the contrary
affirmatively appeared. The defendants were in possession prior to the time the plaintiff
acquired title, and the presumption must be that they were rightfully in possession, and, if the
defendants were rightfully in possession, then the fact that the plaintiff acquired title while
the defendants were in rightful possession would not give the plaintiff a right of action in
ejectment against the defendants, unless the plaintiff first made the demand on the defendants
for possession and the defendants refused to deliver up possession. These facts must be
alleged and proved, or the plaintiff must prove that the defendants were trespassers against
the plaintiff's grantors and were trespassers against the plaintiff. None of these facts appeared;
the only facts proven were, first, title in plaintiff; second, that they acquired their title on
August 15, 1907; third, that the defendants were in possession of the land when the plaintiff
acquired title.
when the plaintiff acquired title. Upon these facts proven there is no wrongdoing on the part
of the defendants whatever. The plaintiff should have gone further and have shown that the
defendants were trespassers against the plaintiff's grantors; or plaintiff should have made a
demand upon the defendants to vacate and, after the demand made, a refusal on the part of the
defendants to vacate; then it would have proven a prima facie case, but we respectfully
submit that in this instance there was a total failure of proof on the part of the plaintiff to
establish a prima facie case.
III. It will be seen from an examination of the record that the defendants in this case were
lawfully in possession of the land mentioned in the plaintiff's complaint long prior to the 15th
day of August, 1907; that whatever rights the plaintiff had were acquired on the 15th day of
August, 1907, at which time the defendants were in peaceable possession of the property in
controversy, and upon the evidence of the plaintiff it was the duty of the trial court to have
granted defendants' motion for nonsuit, because, first, there was absolutely no evidence to
show that the defendants were not in lawful possession of the property in controversy when
the plaintiff acquired title; the mere fact that the plaintiff acquired title on the 15th day of
August, 1907, if they ever did acquire title, and the fact that the defendants were in
possession of the property at the time the plaintiff acquired the title, would not, under any
conception of the law, entitle the plaintiff to recover. The plaintiff alleged an ouster and an
unlawful withholding, neither of which facts did the plaintiff offer any evidence to establish.
Campbell, Metson & Brown, and Huger Wilkinson, for Respondent:
I. In accordance with the request of Mr. Justice Sweeney, during the course of the oral
argument herein, to submit authorities upon the proposition that proof of legal title in actions
to recover the possession of land, without contradicting proof, raises the presumption that the
person holding the legal title is entitled to the immediate possession of the land, and that
evidence other than proof of title is not necessary to establish plaintiff's right to immediate
possession when no evidence has been introduced by defendant, we beg leave to submit
the following authorities in support of that proposition: "If plaintiff is shown to have the
legal title he is presumed to have the right of possession until a better right is shown."
establish plaintiff's right to immediate possession when no evidence has been introduced by
defendant, we beg leave to submit the following authorities in support of that proposition: If
plaintiff is shown to have the legal title he is presumed to have the right of possession until a
better right is shown. (15 Cyc. 128.) As a leading case among a large number supporting this
proposition, we have selected McCarthy v. Brown, 113 Cal. 15; 45 Pac. 14. In the latter
portion of the opinion, after discussing the instruments of title introduced in evidence, the
court says: These disclose title in the plaintiff carrying with it the right to possession. In
Payne v. Treadwell, 16 Cal. 243, the court, by Justice Field, said: The right to the possession
follows as a conclusion of law from the seizin and need not be alleged. * * * The right of
possession accompanies the ownership, and from the allegation of fact of ownershipwhich
is the allegation of seizin in the ordinary language'the right of present possession is
presumed as a matter of law. * * * The withholding of the possession from one who is seized
of the premises is presumptively adverse to his, and wrongful. See, also, Haight v. Green, 19
Cal. 118; Salmon v. Symonds, 24 Cal. 266; Depuy v. Williams, 26 Cal. 314.
II. Since the evidence shows clearly the title in plaintiff and the withholding of possession
by defendants at the beginning of this suit, and for a long time prior thereto, and also at the
time of the trial herein, the only question raised in the oral argument was the fact that no
evidence was introduced to show that defendants' possession might not have been for some
reason or other, not disclosed by the record, wrongful or unlawful. In view of the authorities
above cited, and the practically unanimous decision of all the courts in support of this
authority, we contend that it was wholly unnecessary to introduce evidence showing that
plaintiff had not parted with its right of present or immediate possession since possession
follows the title, and the law presumes the owner to be entitled to the immediate possession
until such presumption has been removed by evidence on the part of defendant. This
presumption relieved the plaintiff in this case and cast the burden of proof upon defendants,
who failed to introduce any evidence at the trial.
burden of proof upon defendants, who failed to introduce any evidence at the trial.
III. We desire to deal a little more at length with the ninth specification of error. The point
assigned there is that the court erred in denying defendants' motion for a nonsuit. The state of
the record on appeal precludes a consideration of this point. The error there assigned requires
this court to review the evidence adduced at the trial in the court below, and determine
whether or not it sustains the allegations of the complaint. In other words, this court is
requested to determine whether or not sufficient evidence was adduced to justify the court in
making the findings of fact necessary to support a judgment. That the sufficiency of the
evidence to support findings of fact, verdict or other decision of fact can be considered by the
supreme court only upon a statement on motion for a new trial, after an appeal from an order
granting or overruling a motion for a new trial, is the uniform and undisputed law of this
state, cannot be doubted. Our own state reports are full of such decisions. We deem it
sufficient to cite: State v. Sadler, 21 Nev. 13, 19; Burbank v. Rivers, 20 Nev. 81. Another
fatal objection to the consideration of this specification of error is the fact that even the
findings themselves, in this cause, are not made a part of the record herein.
IV. A review of the record will reveal the fact that the only record before this court for
review is the judgment roll and the statement on appeal. The statement on appeal contains the
evidence and sets out certain alleged errors of law occurring at the trial, relative to the
admission or rejection of evidence. The findings of fact and conclusions of law are not
contained in the record, and therefore cannot be considered on this appeal. Neither can the
sufficiency of evidence to support any set of findings, whatever they may have been in this
cause, be considered, for the reasons heretofore stated. The only questions, then, that can be
determined on appeal are: First, whether the plaintiff states facts sufficient to constitute a
cause of action, and the judgment rendered conforms to the allegations of the complaint; this
point is determined by an inspection of the judgment roll; and, second, the only point
properly brought before this court for review by the statement on appeal is whether or
not errors were committed by the trial court in its rulings relative to the introduction of
evidence.
inspection of the judgment roll; and, second, the only point properly brought before this court
for review by the statement on appeal is whether or not errors were committed by the trial
court in its rulings relative to the introduction of evidence. This point has been fully discussed
in a former part of this brief and, we trust, to the satisfaction of the court.
James Donovan, for Appellants, on supplemental brief:
I. The evidence of the plaintiff in this case showed that the defendants had been in
possession of this land for many months prior to the plaintiff acquiring title; that being shown
by the plaintiff's witnesses, the legal presumption would follow that the possession of the
defendants was rightful and not tortuous, and this presumption would continue until it was
overcome by evidence. That this rule of law is correct is sustained by the complaint, where
the plaintiff alleges that while plaintiff was such owner and so seized in fee, and in the
peaceable possession and entitled to the possession of said lands and premises, said defendant
did on or about the 15th day of August, 1907, wrongfully and unlawfully, and without right or
title, enter into and upon said premises above described, and did then and there oust and eject
plaintiff from the premises and the whole thereof. The exhibits in this case will show that
the plaintiff acquired title, if at all, on the 14th or 15th day of August, 1907. In order to
maintain their suit they must allege that after they had the title the defendants entered and
ousted the plaintiff, but the evidence is at variance with this allegation in that the evidence
clearly shows that the defendants were in possession of this land long prior to the 15th day of
August, 1907, when the plaintiff acquired its title. The fact being established, then there is a
fatal variance between the allegations of the complaint and the evidence offered. There is
nowhere any evidence offered to show that the plaintiff's grantors were ever in possession of
this land; there is no evidence anywhere to show that, at the time the defendants entered this
land, the plaintiff, or its grantors, had any title to the land. Then the status of the case must
stand as follows: First, the defendants having acquired their possession prior to any title in the
plaintiff or its grantors, and there being no evidence to show that the plaintiff or its
grantors were in possession, then the presumption of law is that the possession of the
defendants was lawful until the contrary is clearly established by evidence.
plaintiff or its grantors, and there being no evidence to show that the plaintiff or its grantors
were in possession, then the presumption of law is that the possession of the defendants was
lawful until the contrary is clearly established by evidence. Section 233 of Warvelle on
Ejectment, reads as follows: In an action to recover the possession of land, the burden of
establishing his title and right of possession by affirmative proof is cast upon the claimants. If
he claims by purchase he must connect himself by deed or will with the prior owner and show
by proper proof the validity of such deed or will, and the seizin of his grantor or advisor. As
against a defendant, who is a stranger to the party from whom the plaintiff derives title, it
would seem that the latter makes a prima facie case by showing the possession of his grantors
at the time the deed was delivered, or that his ancestor died in possession of the land in
question. From the foregoing it will be seen that the plaintiffs did not bring themselves
within the requirements of this rule.
II. In conclusion, we maintain that before the plaintiff could recover in this action he
would have to show in his complaint: First, that he was the owner in fee; second, that he was
entitled to the possession; third, that while he was in possession and entitled to the possession
the defendant entered and ousted him. The facts that were established by the evidence are the
following, leaving out the question of title: The second fact that was established was that the
defendants were in possession of the land in controversy several months prior to the time that
the plaintiff acquired conveyance to this land, and were in possession at the time the plaintiff
acquired title to the land, if it ever did acquire title. No evidence was offered to show that the
possession of the defendants was hostile or adverse to the title of the plaintiff's grantors. No
evidence was offered to show that the plaintiff's grantors were ever in possession of the land
in controversy, or that the plaintiff ever was in possession of the land in controversy prior to
the time that the defendants acquired possession. Such being the facts, the presumptions of
law are that the defendants were in the rightful possession of the land, and no notice ever
having been given to them to deliver possession to the plaintiff, the rightful possession of
the defendants never was determined.
the plaintiff, the rightful possession of the defendants never was determined. For the
foregoing reasons we submit that the position maintained by the plaintiff and respondent, that
the presumption of the right of possession follows the title, does not apply in this case, and
only applies when it is shown that, at the time the defendant entered, the plaintiff was entitled
to the possession and in the possession.
III. As bearing upon the admissibility of the forest reserve scrip entry, see 27 Pac. 784.
Respondent brought this action to recover, and alleged that it was the owner in fee and
entitled to the immediate possession of certain pieces or lots of land at the town of Miller, in
Esmeralda County, situate in the NE 1/4 of SW 1/4, Section 11, township 3 N., Range 40 E.,
M. D. M. The answer denied that the respondent owned the land, and denied that the
appellants wrongfully or unlawfully withheld the possession, and alleged: (1) That long prior
to August 15, 1907 (the date alleged in the complaint as the time when respondent became
seized in fee and entitled to the immediate possession of the land in controversy), the
defendants and their grantors located on certain lands at Miller, Esmeralda County, Nevada,
which said lands are described in paragraph 2 of plaintiff's complaint, but that at the date of
said settlement by the said defendants and their grantors said land so described as aforesaid
was vacant, unoccupied and unappropriated public domain belonging to the United Stated of
America, and that at the date of the location of the defendants and their grantors there were no
improvements upon said land whatever, and no one asserted or claimed any right, title or
interest in or to the said lands adverse to the defendants herein. (2) That at all the times
mentioned in the plaintiff's complaint said land described as aforesaid was vacant government
land belonging to the United States, and is at the present time the property of the United
States, and that the plaintiff has no title, claim or interest in or to said land, either in the fee
thereof or in the possession thereof.
Upon the trial the respondent introduced in evidence, over the objections of the
appellants, a record copy of a patent from the United States to the Aztec Land and Cattle
Company, Limited, to the E 1J2 of the NW 1J4 of Section 11, above mentioned, granted in
lieu of certain lands relinquished to the United States on what is commonly called "scrip,"
and deeds conveying to the respondent any rights granted by this patent.
the objections of the appellants, a record copy of a patent from the United States to the Aztec
Land and Cattle Company, Limited, to the E 1/2 of the NW 1/4 of Section 11, above
mentioned, granted in lieu of certain lands relinquished to the United States on what is
commonly called scrip, and deeds conveying to the respondent any rights granted by this
patent. The patent recited that: Whereas, the Aztec Land and Cattle Company, Limited,
being the owner of a tract of land situated and included within the limits of the public forest
reservation, and known and officially designated as the San Francisco Mountain Forest
Reserve in Arizona, has under the provisions of the act approved June 4, 1897 [designating
the title], reconveyed and relinquished the said tract to the United States, and has, under the
provisions of said act selected in lieu thereof the following described tract of vacant public
land now open to settlement, and then follows a description and the purported grant of the
eighty acres. The respondent placed witnesses upon the stand, who stated that the appellants
were in possession of the lots or tracts of land for which this action is brought, and who also
testified on cross-examination that the appellants and their grantors were in possession long
before the date of the patent. Such possession by appellants prior to the date of the patent was
admitted by respondent's counsel on the hearing in this court. From an order overruling a
motion for a nonsuit, and from a judgment in favor of the respondent, the appellants have
appealed.
The important question involved is whether under the facts related this patent comes
within, or is an exception to, the general rule that a patent is conclusive, and cannot be
attacked collaterally. Can the appellants rely and prevail upon a possession in themselves
running from a time prior to the issuance of the patent? The act of Congress mentioned in the
patent as the one under which this land was selected and patented (Act of June 4, 1897, c. 2,
30 Stats. 36) provides: That, in cases in which a tract covered by * * * a patent is included
within the limits of a public forest reservation, the settler or owner thereof may, if he desires
to do so, relinquish the tract to the government, and may select in lieu thereof a tract of
vacant land open to settlement not exceeding in area the tract covered by his claim or
patent; and no charge shall be made in such cases for making the entry of record or
issuing the patent to cover the tract selected."
tract of vacant land open to settlement not exceeding in area the tract covered by his claim or
patent; and no charge shall be made in such cases for making the entry of record or issuing
the patent to cover the tract selected. The conclusiveness of patents stands upon the theory
that, when they have been properly issued within the jurisdiction of the land office, they are
effective and immune from collateral attack, the same as are the judgments of courts. If the
action of the land office in issuing the patent be considered as conclusive as the judgment of
any judicial tribunal, there is still good reason for holding that the patent may be overthrown
when the circumstances under which it was issued where such as to indicate a lack of
jurisdiction of the subject-matter or of the person whose rights are involved which would
render a judgment void. (Wright v. Roseberry, 121 U. S. 519, 7 Sup. Ct. 985, 30 L. Ed. 1039,
quoting Smelting Co. v. Kemp, 104 U. S. 641, 26 L. Ed. 875.)
If the respondents were in possession at the time the application was made for the patent,
such prior possession constituted property, and under well-recognized legal principles gave
them a right to the land and to their buildings or improvements, and the land was not subject
to entry by another under the acts of Congress, as held in numerous cases, including Reinhart
v. Bradshaw, 19 Nev. 257 (3 Am. St. Rep. 886), from which we quote: In Nickals v. Winn,
17 Nev. 188, the plaintiff was in the possession of a large tract of 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 160 acres thereof from the government. It was held upon
the authority of Atherton v. Fowler, 96 U. S. 513, 24 L. Ed. 732, and under decisions referred
to in the opinion, that the right of preemption could not be exercised upon land occupied by
another. The generosity by which Congress gave the settler the right of preemption,' 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 his 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 upon unsettled landto make improvements on
unimproved land.'" {Brown v. Killabrew, 21 Nev. 437
tlement was to be exercised upon unsettled landto make improvements on unimproved
land.' (Brown v. Killabrew, 21 Nev. 437.) In Fitchett v. Henley, 31 Nev. 326, we said:
Large interests in the western states carrying farms, mills, and town property are often held
merely by possession. In Bonner v. Meikle (C. C.), 82 Fed. 969, it was held that occupants of
lots on the public domain in the town of Delamar who had built on and improved the same
had a possessory right which entitled them to contest the issuance of a patent to the claimant
of a prior mining location, and that they would be protected in this right, although no steps
had been taken by them or the authorities of the town to secure title to themselves.
This property interest and possessory right is of such magnitude that the appellants ought
not to be deprived of it under the ordinary constitutional guaranties, state and federal, in a
proceeding either before the land office or a court, to which they were not parties and in
which they were not given notice or an opportunity to be heard. Otherwise there could be
deprivation of rights by the land office in an ex parte proceeding without due process of law,
thereby setting aside constitutional guaranties which the decisions universally hold must be
respected by the courts, and resulting in the loss of the settler's possession and improvements
by fraud or mistake, when neither the land office nor a judicial tribunal would strip him of his
holdings if he were given an opportunity to appear and prove that he had prior possession. If
it be claimed or admitted that the settler has no rights as against the United States, and that
the government may confiscate his buildings and appurtenances on the public domain, it may
be said in reply that the making of laws and the disposition of the public lands lie with
Congress and not with the land office, except as it acts in pursuance of federal statutes, and
that Congress has been careful in the different acts which authorize the patenting of
unoccupied public lands to protect claimants holding prior possession by providing for notice
and giving them a preference to purchase from the government; that, at least until there is
confiscatory legislation warranting it, the possession and improvements of the settler on the
public domain are property of which he is not to be deprived without notice, an
opportunity to defend, or due process of law; that, if the appellants were in possession at
the time the application was made for the patent, the land office was not authorized to
issue it without notice, because the statute under which the patent was granted only
allowed the issuance of a patent for vacant land, indicating that it was not the intention
of Congress to allow patents to be issued on scrip which would deprive settlers of their
prior possession.
settler on the public domain are property of which he is not to be deprived without notice, an
opportunity to defend, or due process of law; that, if the appellants were in possession at the
time the application was made for the patent, the land office was not authorized to issue it
without notice, because the statute under which the patent was granted only allowed the
issuance of a patent for vacant land, indicating that it was not the intention of Congress to
allow patents to be issued on scrip which would deprive settlers of their prior possession.
This is in keeping with the uniform course of federal legislation and judicial decisions,
which have recognized and guarded the prior possessors of land on the public domain and
protected them against the intruder on their holdings. If the land office had any jurisdiction as
to the subject-matter over land which was in the possession of the appellants under an act of
Congress which only authorized the issuance of a patent for vacant land, and was
misinformed by petition or affidavit and concluded that the land was vacant when in fact it
was in the possession of the appellants, they ought not to be deprived of their rights by a
wrong finding in a proceeding to which they were not parties. The acts of Congress control
and their provisions govern the force of patents, which cannot be varied in their effect by the
omission from them of statutory provisions or the insertion of other or different ones.
The act authorizing the issuance of the scrip on which this patent was obtained does not
provide for any notice to adverse claimants by personal service, by posting on the ground, by
publication, nor in any other way, and does not attempt to empower the land office to
prescribe notice. It is not shown that the appellants had any constructive or other notice which
would have enabled them to assert their claims before the land office. Although courts take
judicial notice of the rules of the general land office, it does not appear that there was any rule
requiring the service, posting, or publication of notices in cases of this character at the time
the patent was issued. If Congress attempted to confer authority on the land office to make
such a rule, the question would still arise as to whether this is not, as distinguished from
formal and ordinary routine office matters which may be regulated by executive
departments, a legislative power which can be exercised by Congress only, and which
cannot be delegated so as to enable the land office to legislate or prescribe the time and
conditions of notices which if not answered would deprive the citizen of his property by a
proceeding to which he was not a party.
routine office matters which may be regulated by executive departments, a legislative power
which can be exercised by Congress only, and which cannot be delegated so as to enable the
land office to legislate or prescribe the time and conditions of notices which if not answered
would deprive the citizen of his property by a proceeding to which he was not a party.
In United States v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591, the court stated:
It was said by this court in Morrill v. Jones, 106 U. S. 466, 467, 1 Sup. Ct. 423, 27 L. Ed.
267, 268, that the secretary of the treasury cannot by his regulations alter or amend a revenue
law, and that all he can do is to regulate the mode of proceeding to carry into effect what
Congress has enacted. Accordingly it was held in that case, under section 2509 of the Revised
Statutes, which provided that live animals specially imported for breeding purposes from
beyond the seas should be admitted free of duty, upon proof thereof satisfactory to the
secretary of the treasury and under such regulations as he might prescribe, that he had no
authority to prescribe a regulation requiring that, before admitting the animals free, the
collector should be satisfied that they were of superior stock, adapted to improving the breed
in the United States. * * * It would be a very dangerous principle to hold that a thing
prescribed by the commissioner of internal revenue, as a needful regulation under the
oleomargarine act, for carrying it into effect, could be considered as a thing required by law'
in the carrying on or conducting of the business of a wholesale dealer in oleomargarine, in
such manner as to become a criminal offense. * * *
It is evident that the land office, proceeding under the act of Congress authorizing the
granting of vacant land only, would not issue a patent for land occupied by appellants or
others, unless misled by mistake, misrepresentation, or fraud, and that no patent would have
been issued if the statute had provided for a proper notice, and such notice had been given,
enabling the appellants to defend and they had appeared and showed that they were in
possession, which they now seek to do after service of summons. Hence if the patent is now
held to be conclusive, and consequently the appellants are to be dispossessed, the result
attained will deprive them of their property, which was not intended by the land office nor
contemplated by the acts of Congress.
property, which was not intended by the land office nor contemplated by the acts of Congress.
In other cases Congress has provided for reasonable notice which gives adverse claimants
an opportunity to establish their rights before the land office. The applicant for a mining
patent must have the ground surveyed and staked and notice posted on the claim and
published in a newspaper for sixty days. The homestead applicant is required to give notice
and bring witnesses to prove that he has resided on the land for the required length of time. It
would seem that the statute which controls in this case was drawn on the theory that only
vacant land could be patented in lieu of tracts surrendered on forest reservations, and that, as
it applied only to vacant land, there was no one to notify. But, if it transpires that the land
patented was not vacant, the persons having possession and improvements there ought not to
be deprived of their rights without notice to them in compliance with some proper act of
Congress. To adjudicate otherwise would open the door for deception in the land office, and
allow speculators and unscrupulous persons clandestinely and by fraud, misrepresentation, or
mistake to obtain patents without notice, and deprive the owners of agricultural and other
valuable lands and the people of whole towns and communities of their lots, dwellings,
business houses, and other hard-earned holdings on the public domain. For the court to
dispossess the prior occupants of their homes and property under these circumstances, and
allow them no protection except to request the attorney-general of the United States to
institute suit to set aside the patent, which might be defended in the courts for years, while
they were kept out of possession, would be poor relief and a palpable denial of justice. It
would be different if the act of Congress had provided for and the appellants had been given
proper notice and an opportunity in the land office to show a prior possession which might
have protected them there and prevented the issuance of the patent or made it conclusive if
they failed to appear, or if Congress in its control of the public domain had intended by any
legislation to strip the settler of his prior possession and improvements without notice.
That the patent under which the respondent claims was issued in a merely ex parte
proceeding is exemplified by the following excerpt from the decision of the secretary of the
interior in Gray Eagle Oil Co. v. Clarke, 30 Land Dec. Dep. Int. 570: The act of 1897
describes the land which may be selected under its provisions as vacant land open to
settlement.' To be vacant, land must be unoccupied. To be open to settlement, land must,
among other things, not be known to contain valuable mineral deposits. Land which is
occupied by another or which is known to contain valuable mineral deposits is therefore not
subject to selection under said act. It is a general rule that applicants for the public land must
show that the land applied for is of the character contemplated by the law under which it is
sought. * * * As has been said in various decisions of the department, this law constitutes a
standing offer on the part of the government for an exchange of lands. In this offer the lands
to be exchanged are described. Those to be relinquished by the individual must be within a
forest reservation and those to be taken by him must be vacant and open to settlement. It is
incumbent upon one who wishes to take advantage of this standing offer to bring himself
within the terms thereof, not only as to the land he proposes to relinquish, but also as to that
which he proposes to take in exchange. It is his duty to inform himself as to the character and
condition of the land he proposes to select and to honestly disclose the facts thus ascertained.
The local land officers with whom the papers are to be filed cannot reasonably be expected to
have a personal knowledge of the conditions and character of all the public lands within their
district. Much less can the land officers at Washington be expected to have a personal
knowledge thereof.
In Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L. R. A.
230, the court considered a number of cases which support these views. To allow the
applicant to present his own proofs under the circumstances depicted, in the absence of and
without notice to adverse claimants, and when the land office is without knowledge regarding
the condition of the land excepting as informed by the applicant, and then hold that the patent
is conclusive against the settler and adverse claimant, would be equivalent to giving full
force and validity to judgments rendered upon mere ex parte proof, without summons or
notice to the defendants to be bound by the judgments.
and adverse claimant, would be equivalent to giving full force and validity to judgments
rendered upon mere ex parte proof, without summons or notice to the defendants to be bound
by the judgments. That to enforce a patent or judgment obtained under such circumstances is
contrary to legal principles and constitutional guaranties, and might result in great injustice to
adverse claimants, is apparent. We do not wish to be understood as holding that patents
issued without notice upon vacant land are not valid, nor to determine regarding the validity
of a patent issued after the adverse claimant has presented, or had an opportunity to present,
his proofs to the land office. In Rose v. Richmond, 17 Nev. 65, a patent issued under a second
application for one on the same ground over which adverse suit was pending was set aside,
and it was held that, if a patent was issued without authority of law, it was absolutely void. In
South End Mining Company v. Tinney, 22 Nev. 19, it appeared that several years after
plaintiff had made application for a patent to a mining claim, and the notices and time for
starting adverse proceedings had expired, and plaintiff had not paid for the ground nor
obtained the final certificate from the receiver, and had ceased to do the annual assessment
work, defendant's grantor relocated a portion of the ground and held continuous possession
thereafter. A year after the relocation, plaintiff, without defendant's knowledge, obtained a
patent to the original claim, after submitting to the register and receiver of the land office
affidavits to establish the fact that the assessment work had been done on the claim each year
as required by the mining laws, when, in fact, it had not been done. It was held that this was a
fraud upon the defendant, and that the plaintiff, relying upon the patent, could not recover.
The court went behind the patent and inquired into the regularity of the proceedings, the
sufficiency and character of the evidence submitted on the application for the patent, and the
defendant was permitted to introduce testimony before the court to contradict the statements
set forth in the affidavit, the sufficiency of which had already been passed upon by the
register and receiver before issuing the final certificate or receipt for the money for the land.
In the opinion by Bigelow, J., it was said: "Of the right of the defendants to set up an
equitable defense to an action for the possession of lands there can be no question, and,
as to this defense, the case is to be tried in the same manner and upon the same
principles that would apply to an original bill in equity brought for the same purpose.
was said: Of the right of the defendants to set up an equitable defense to an action for the
possession of lands there can be no question, and, as to this defense, the case is to be tried in
the same manner and upon the same principles that would apply to an original bill in equity
brought for the same purpose. (Pom. Rem. & Rem. Rights, sec. 87, et seq.; Bohall v. Dilla,
114 U. S. 47, 5 Sup. Ct. 782, 29 L. Ed. 61; Quinby v. Conlan, 104 U. S. 420, 26 L. Ed. 800;
Estrada v. Murphy, 19 Cal. 248, 273; Hollinshead v. Simms, 51 Cal. 158; Treadway v.
Wilder, 8 Nev. 93; Dutertre v. Shallenberger, 21 Nev. 507; Suessenbach v. Bank, 5 Dak. 477,
41 N. W. 662.) * * * Obtaining a patent to the defendants' mine was under the circumstances
a positive and unequivocal fraud upon them. * * * These are that without the publication or
posting of any notice of its intention so to do, and without the defendants' consent or
knowledge, the plaintiff has secretly and surreptitiously obtained a patent to their property.
This is entirely sufficient to require a court of equity to hold it a trustee of that title for the
defendants. This has often been decided by the courts, and the principle upon which it is done
is quite clearly stated by Judge Sawyer in the case of Lakin v. Mining Co., 11 Sawy. 231, 238,
25 Fed. 337, as follows: Where one party wrongfully obtains the legal title to land, which, in
equity and good conscience belongs to another, whether he acts in good faith or otherwise, he
will be charged in equity as a constructive trustee of the equitable owner. That, I think, is a
doctrine established by the following cases: Wilson v. Castro, 31 Cal. 420; Salmon v.
Symonds, 30 Cal. 301; Bludworth v. Lake, 33 Cal. 256; Hardy v. Harbin, 4 Sawy. 549. * * *'
The defendant there had secretly and clandestinely, but without positive fraud, and without
any fiduciary relation existing between the parties, by means of an old and dormant
application, obtained a patent to the plaintiff's mine. Upon the ground stated in the quotation,
it was decided that the defendant held this title in trust for the plaintiff, and it was compelled
to convey it to him.
In Hardy v. Harbin, 4 Sawy. 536, Fed. Cas. No. 6,060, Justice Field said (page 540):
The bill is filed for the purpose of having a trust declared and enforced, the plaintiff relying
upon the established doctrine that whatever property is acquired by fraud, or under such
circumstances as to render it inequitable for the holder of the legal title to retain it, a
court of equity will convert him into a trustee of the party actually entitled to its beneficial
enjoyment.' The title involved was a United States patent, and it was again decreed to be
held in trust for the true owner.
upon the established doctrine that whatever property is acquired by fraud, or under such
circumstances as to render it inequitable for the holder of the legal title to retain it, a court of
equity will convert him into a trustee of the party actually entitled to its beneficial enjoyment.'
The title involved was a United States patent, and it was again decreed to be held in trust for
the true owner. In Sanford v. Sanford, 19 Or. 3, 13 Pac. 602, decided by the Supreme Court
of Oregon, and subsequently affirmed by the Supreme Court of the United States (139 U. S.
642, 11 Sup. Ct. 666, 35 L. Ed. 290), one had by a false affidavit made in the land office
obtained a patent to a piece of land upon which another had settled, and which equitably
belonged to the latter. It was again decided that the patentee held the legal title in trust for the
equitable owner. In Rector v. Gibbon, 111 U. S. 276, 291, 4 Sup. Ct. 605, 28 L. Ed. 427, the
Supreme Court of the United States, speaking of the case of Johnson v. Towsley, 13 Wall. 72,
20 L. Ed. 485, said: The decision aptly expresses the settled doctrine of this court with
reference to the action of officers of the land department that when the legal title has passed
from the United States to one party, when in equity and good conscience and by the laws of
Congress it ought to go to another, a court of equity will convert the holder into a trustee of
the true owner and compel him to convey the legal title.' Although the plaintiff and
respondent may be considered a constructive or other trustee for the appellants when they
have taken no steps to acquire title, these cases support the position that it would be
inequitable to allow it to recover if the appellants were in possession of the land at the time it
was selected and patented.
In a late case (Brandon v. Ard, 211 U. S. 18, 29 Sup. Ct. 1, 53 L. Ed. 68), similarly in
principle to the selection in an ex parte proceeding of lands in lieu of others surrendered in a
forest reservation as involved in the pending action, a railroad company had selected as
indemnity to supply alleged deficiencies in place limits, and obtained patent for, a piece of
land which was in actual possession of Ard, and had been in his possession prior to the
making of an order by the land office and the secretary of the interior withdrawing the land
from sale or settlement.
from sale or settlement. Brandon and Pratt purchased the land from the company, and the trial
and supreme courts of Kansas sustained the patent, and rendered judgment against Ard. The
decision of the state court was reversed (174 Kan. 424, 87 Pac. 366, 118 Am. St. Rep. 321),
and Ard was allowed to retain the land, although the claims made against him in the suit were
based on patents issued subsequently to the rejection by the land office of his own application
for the land. After holding that Ard was not bound or affected by a suit to which he was not a
party, brought by the attorney-general of the United States at the instance of the secretary of
the interior to cancel the patent, and that he acquired an equitable right to the land that could
not be displaced by the wrongful act of the local land office. The Supreme Court of the
United States, after referring to the case of Shepley v. Cowan, 91 U. S. 330, 23 L. Ed. 424,
quoting from its former decision, said: Within the authority of that case, we think the
defendant has shown an equity prior to all claims of the railway company. * * * The law deals
tenderly with one who in good faith goes upon the public lands, with a view of making a
home thereon. * * * The policy of the federal government in favor of settlers upon public
lands has been liberal. It recognizes their superior equity to become the purchasers of a
limited extent of land, comprehending their improvements over that of any other person.
(Clements v. Warner, 24 How. 394, 397, 16 L. Ed. 695.)'
To the various exceptions to the rule that a patent is conclusive, we think should be added
cases like the present one, where the patent has been issued in a proceeding to which the
claimants having prior possession of the land were not made parties or given notice, and that
grave injustice would result in holding that they cannot attack a patent the issuance of which
they were not given an opportunity to oppose, and which if held valid would deprive them of
prior existing rights.
On behalf of respondent, it was suggested on the argument that the patent would relate
back to the time of the issuance of the receipt or certificate, but the record is silent in this
respect, and contains no reference as to when or whether any receipt or certificate issued.
receipt or certificate issued. One of the respondent's witnesses testified that he knew the
appellants had been in possession for a period of six months or more prior to the date of the
patent. As the record contains nothing regarding the time the application for the patent was
filed, nor as to when or whether any affidavit or proofs were submitted that the land was
vacant, if it may be presumed that affidavits that the land was vacant were submitted, there is
no presumption that they were filed six months before or any definite time previous to the
issuance of the patent. Hence the uncontradicted evidence submitted by the plaintiff and
respondent shows that the appellants were in possession of the land in controversy at the time
of the issuance of the patent and for six months or more prior, and there is no evidence
indicating that they were not in possession, or that the land was vacant at the time the
application for patent and the proofs in support thereof were filed. A condition shown to exist
at a particular time is presumed to continue thereafter, but there is no presumption that it had
continued for any length of time previously. (Lawson's Presumptive Evidence, pp. 167, 191,
and cases there cited.) In Bullock v. Wilson, 5 Port. 338, it was held that a patent of itself was
not evidence of title in a suit commenced anterior to its date.
The patent being regular on its face, its introduction in evidence alone raised a
presumption that the government had conveyed the land to the Aztec Land and Cattle
Company, Limited, and that the land was vacant at the time of its issuance. This presumption
is overcome by the proof that the land was in the possession of the appellants at the time of,
and for more than six months prior to, the date of the patent. If it had not been overcome, the
presumption that the land was vacant would not have run backward any more than a showing
that the appellants were in possession would have raised a presumption that they had been in
possession previously to the time shown by the testimony. No evidence of the incorporation
of the Aztec Land and Cattle Company, Limited, nor any resolution by it authorizing the
execution of a deed or power of attorney, was introduced. The power of attorney which was
admitted, and which purports to be signed by the company, was dated and acknowledged at
the City of New York on the 29th day of May, 1906, by Albert Strauss, who signed as first
vice-president, and by Robt. M. Murray, who signed as secretary.
company, was dated and acknowledged at the City of New York on the 29th day of May,
1906, by Albert Strauss, who signed as first vice-president, and by Robt. M. Murray, who
signed as secretary. It recited that whereas on that day the company surrendered to the United
States by deed of conveyance eighty acres of land in Arizona, by which it became entitled to
select other lands of equal acreage in lieu thereof: Now, therefore, the said Aztec Land and
Cattle Company, Limited, has made, constituted, and appointed * * * its true and lawful
attorney for it and in its name, place, and stead, to enter into and take possession of each and
every tract of public land in any state or territory of the United States that has been or may
hereafter be selected by it in lieu of the land surrendered to the United States, as aforesaid.
This is no proof, and raises no presumption, that a selection of or application for the land
described in the patent was made on that day or at any other time, nor that proof, of the
character of the land was made to or accepted by the land office at Carson City or
Washington on that day or at any other specified time, and there is no evidence in the record
from which it can be inferred that any evidence or proofs regarding the character or vacancy
of the land was submitted to the land office upon any day before or after the time at which
appellants are shown to have been in possession. The burden of proving ownership was upon
the respondents, as it always is upon the party alleging it when denied, and it was not
incumbent upon the appellants to establish a negative. (Jones v. Prospect Mountain Tunnel
Company, 21 Nev. 339.) If the respondent is to rely upon the patent from a time previous to
its issuance, it should supply evidence on a new trial of the facts showing the previous date
upon which by relation it took effect; and, if the land was vacant at that time, a possession in
appellants initiated later could not avail them. On the other hand, if the appellants were in
possession at the time the patent took effect, that fact would appear directly, and whichever
party is entitled would recover upon definite evidence, which would be more satisfactory than
to rely upon a strained presumption, which might work an injustice.
Another contention of appellants is that respondent is without power to hold the land
because it is not necessary for the operation of a railroad, the purpose for which
respondent is incorporated, as specified in its articles of amalgamation.
out power to hold the land because it is not necessary for the operation of a railroad, the
purpose for which respondent is incorporated, as specified in its articles of amalgamation.
The allegations of the answer do not appear to raise any issue in this regard. We do not mean
to determine that such an issue can be properly raised in this action. (Whitman Gold Mining
Company v. Baker, 3 Nev. 386; 10 Cyc. 1134.)
It is claimed that the respondent must show that it or its grantors had possession prior to
the possession of the appellants, and that a demand was made upon the appellants for
possession before respondent can recover. But, if the land was vacant at the time the patent
would take effect by relation, it would establish a complete title in the respondent on which it
could recover without showing a prior possession by the respondent or its grantors. If the
appellants were not making any claim to the land as against the patent, and had been
previously in rightful possession, it would be necessary to make a demand upon them before
judgment could be recovered against them for costs. In 15 Cyc. 56, it is said: Notice to quit
or demand for possession is necessary, and as a rule is only necessary, where the relation of
landlord and tenant exists, or where there is a privity or connection of title between the
parties. Within this rule, or as qualifications of or exceptions thereto, such notice or demand
is required where defendant has so entered and holds possession that he cannot be treated as a
trespasser; where one holds under license from the crown, under an executory contract for
purchase, under a contract for purchase from an infant, under a sublease, or under an
agreement, with relation to a division line and occupation, which amounts to a license to
occupy until revoked. But notice or demand is unnecessary where defendant has repudiated or
otherwise terminated the prior relationship, and has asserted a hostile possession or claim; * *
* where he denies or disclaims plaintiff's title, interest, or right of possession, and holds
adversely or independently, in hostility to plaintiff, and under a claim of right in himself.
It is contended that the ruling on the motion for nonsuit can be reviewed only on a motion
for a new trial, but an order granting or refusing a motion for a nonsuit depends upon
whether there is any evidence to support a judgment in favor of the plaintiff, and is a
question of law, and is different from one relating to the weight of conflicting evidence,
which is a question of fact for a jury and reviewable by motion for a new trial.
whether there is any evidence to support a judgment in favor of the plaintiff, and is a question
of law, and is different from one relating to the weight of conflicting evidence, which is a
question of fact for a jury and reviewable by motion for a new trial. In considering and
quoting from some cases bearing on this subject, Hayne, in his work on New Trial and
Appeal, at section 112, states: The ruling on motion for nonsuit may be reviewed either on
motion for a new trial or on appeal from the judgment. The question presented on motion for
a nonsuit is a question of law, and in a statement on motion for a new trial should be specified
as an error of law.'
We do not understand that respondent is insisting upon other technical objections which
were made.
The judgment of the district court is reversed, and the case is ordered remanded for a new
trial.
Sweeney, J.: I concur.
Norcross, C. J., dissenting:
Defendants at the date of the issuance of the patent under which plaintiff claims were
occupants and in such possession thereof that the land in controversy upon said date could not
be regarded as vacant land within the meaning of the acts of Congress governing the issuance
of such patents. (Act of June 4, 1897, c. 2, 30 Stats. 36; Act of June 6, 1900, c. 791, 31 Stats.
588, 614; Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, 50 C. C. A. 79, 61 L.
R. A. 230; Shaw v. Kellogg, 170 U. S. 312, 18 Sup. Ct. 632, 42 Pac. 1050; Kern Oil Co. v.
Clark, 30 Land Dec. Dep. Int. 550, 555.) There is nothing in the record, however, which
shows when the patent was applied for, or that defendants were in possession upon the date of
such application. There is testimony that defendants were known to be in possession six
months or more prior to August, 1907. There is a recital in the power of attorney to Hugh H.
Brown that the Aztec Land and Cattle Company surrendered their land within the forest
reserve back to the government on May 29, 1906. The forms required by the general land
office indicate that contemporaneous with the relinquishment of the forest reserve land to the
United States the selection of the lieu land is made and accompanied with affidavits
"showing the lands to be nonmineral in character and unoccupied."
affidavits showing the lands to be nonmineral in character and unoccupied. (30 Land Dec.
569.) The statute did not provide what proof should be offered to support such an application,
nor did it provide for any notice. The land office, however, adopted regulations requiring
proof that the land was both vacant and open to settlement. (Cosmos Co. v. Gray Eagle Oil
Co., 190 U. S. 301, 314, 23 Sup. Ct. 692, 47 L. Ed. 1064.)
If, as a matter of fact, the land is vacant at the time of the application for the lieu land and
the proofs in support thereof are offered, any occupation thereafter could not in my judgment
be set up as against a patent actually issued. Upon the other hand, it is my conclusion that if
the land is actually occupied, and hence not vacant, and proofs are fraudulently made to the
effect that the land is vacant, an occupant of the land, especially one who had no notice of the
application, could set up such fraud as a defense in a suit of the character now under
consideration. This view, I think, finds support in the following authorities: Johnson v.
Towsley, 13 Wall. (80 U. S.) 72, 20 L. Ed. 485; Shepley v. Cowan, 91 U. S. 330, 23 L. Ed.
424; Moore v. Robbins, 96 U. S. 530, 24 L. Ed. 848. It is the general rule, however, that an
occupant of the public land without title, and without any attempt being made to secure title,
cannot resist the enforcement of the patent of the United States on the ground of such
occupancy. (Sparks v. Pierce, 115 U. S. 408, 6 Sup. Ct. 102, 29 L. Ed. 428; Treadway v.
Sharon, 7 Nev. 37; Whittaker v. Pendola, 78 Cal. 296, 20 Pac. 680; Cragg v. Cooper, 150
Cal. 584, 89 Pac. 346; Helstrom v. Rhodes, 30 Utah, 122, 83 Pac. 730.)
The patent issued to the Aztec Land and Cattle Company was regular and lawful upon its
face, and it is presumed to have been regularly issued. Cyc. correctly states the law as
follows: Under the rule that public officers are presumed to do their duty, the presumption is
that all necessary preliminary steps to the issuance of a patent have been taken, and that the
patent was regularly issued and is valid and passes the legal title. But the presumption of the
validity of the patent may be rebutted by proof that it was issued without authority of law or
was obtained by fraud; the burden of proof being upon the person who seeks to impeach the
patent."
the person who seeks to impeach the patent. (32 Cyc. p. 1032; Hooper v. Young, 140 Cal.
275, 74 Pac. 140, 98 Am. St. Rep. 50; Harkrader v. Carroll, 76 Fed. 474.)
The proof upon the part of the plaintiff establishes the fact that its immediate grantor had a
government patent to the land in controversy, and that it had entered into possession of the
land embraced within such patent, excepting the portion occupied by defendants, and a small
portion not included in the deed of plaintiff's grantor.
Against this showing there was nothing but the bare occupancy of the defendants, which is
insufficient to overcome the presumptions in favor of the patent. Had the defendants, instead
of resting upon the proofs offered by the plaintiff, proved that they were in occupation of the
land prior to the application for the patent and had no notice of the proceedings upon which it
had been obtained, I am of the opinion plaintiff could not have recovered, but it cannot be
said that the proofs upon the part of the plaintiff were not sufficient to warrant the court in
denying the motion for a nonsuit, or to support the judgment in the absence of other evidence.
___________
32 Nev. 304, 304 (1910) Russell v. Esmeralda County
[No. 1827]
JAMES M. RUSSELL, Respondent, v. ESMERALDA COUNTY, Appellant.
1. StatutesTitleSufficiency.
The act of February 27, 1883 (Comp. Laws, 2468-2507), entitled An act to regulate fees and
compensation for official and other services in the state * * * and to repeal all other acts in relation
thereto, and regulating the fees of officers in the state, including sheriffs and constables, contains but one
general subject and matter properly connected therewith, and is not in conflict with the constitution (art. 4,
sec. 17) requiring each law to embrace but one subject and matter properly connected therewith.
2. StatutesGeneral and Special StatutesValidity.
The act of February 27, 1883 (Comp. Laws, 2468-2507), regulating the fees of officers in the state,
including sheriffs and constables, and providing that the act shall not affect the fees of officers of any
county wherein the total vote does not exceed 800, and the same shall apply to all future elections, etc.,
does not conflict with the constitution (art. 4, secs. 20, 21) prohibiting the passage of any special law in
enumerated cases, and declaring that in the enumerated cases, and in all other cases where a general law
can be made applicable, all laws shall be general, since a general law fixing the compensation of officers of
counties cannot be enacted, as it would result in making the compensation of officers inadequate in the
small counties and exorbitant in the larger counties.
3. Constitutional lawEqual Protection of the laws.
The act of February 27, 1883 (Comp. Laws, 2468-2507), regulating the fees of officers in the state, and
providing that the act shall not apply to fees of officers of any county wherein the total vote of the last
election did not exceed 800, and the same shall apply to all future elections, operates alike on all persons
similarly situated, and does not deny to any citizen the equal protection of the laws in violation of the
fourteenth amendment to the federal constitution.
Appeal from District Court of the First Judicial District of the State of Nevada, Esmeralda
Action by James M. Russell against Esmeralda County. Judgment for plaintiff, and
defendant appeals. Reversed and remanded.
Augustus Tilden, District Attorney, and George Springmeyer, Deputy District Attorney, for
Appellant:
I. Does the act of 1883, in providing for fees and compensation of constables for service
and travel in criminal cases, refer to section 5 of the act of 1S75, or to section 5 of the act
of 1SS3?
refer to section 5 of the act of 1875, or to section 5 of the act of 1883?
It would seem that the language of the statute of 1883 is clear and explicit in this regard.
Whether the words, for service and travel in criminal cases, the same fees as are allowed
sheriffs for similar services, have a plain meaning, can best be determined by finding
whether the same act provides that the sheriff receive any fees for such service and travel. It
certainly does. Stats. 1883, sec. 5, pp. 59-60 contains these provisions: The fees allowed to
sheriffs shall be * * * for every arrest in a criminal proceeding, two dollars; for service of any
process in a criminal case, the same mileage as in civil cases. The simple and natural
construction of the language, and the plain meaning of the words, seem to be that the
reference in section 7 to the fees allowed sheriffs is to section 5 of the same act. That is to
say, the quoted provisions of section 5 are incorporated by reference into section 7, and the
latter is to be read as though the language of section 5 referred to were written out at length in
section 7 at the time of its adoption. This is especially true when it is observed that section 5
of the act of 1875 is admittedly repealed by section 5 of the act of 1883, so far as it relates to
sheriffs. The coincidence that the language of section 7, in the act of 1875, as to constables'
criminal fees is preserved in the act of 1883 is of no consequence. Upon that basis, it would
be useless to proceed further for when the language is clear, plain, simple and unambiguous
and susceptible of but one construction, there is nothing left to construe. (11 Nev. 118; 6
Nev. 104; 8 Nev. 271.)
II. It is a well-known principle of statutory construction that the whole of the act and all of its
parts are to be taken together. In Leet v. John Dare Silver M. Co., 6 Nev. 222, our supreme
court uses this language: Section third of these mining laws thus construed harmonizes with
other parts of the same laws. The entire mining law must be construed together. This is
certainly very apropos. Further, if possible, the meaning should be gathered from the act itself
and confined to it. The rule is well stated in 26 Am. & Eng. Ency. Law, p. 600: It is the duty
of a court neither to add anything to nor to take anything from a statute unless good grounds
appear for thinking that the legislature intended something which it has failed precisely
to express," and numerous cases are cited.
grounds appear for thinking that the legislature intended something which it has failed
precisely to express, and numerous cases are cited. State v. Toll Road Co., 10 Nev. 160,
holds on this subject: In arriving at the intention of the legislature we must look at the whole
act, its object, scope, and extent, and find out, from the act itself if possible, what the
legislature meant. So in Maynard v. Johnson, 2 Nev. 25: The whole statute is to be taken
together and so examined as to arrive at the intent, if possible. And again in the same
decision: We are bound in expounding a statute to construe one part by the light we derive
from other parts. And in 10 Nev. 365: The meaning may be sought by examining the
context and by considering the reason or spirit of the laws. Again, in 26 Am. & Eng. Ency.
Law, p. 604, it is said: Words are to be interpreted with reference to the subject-matter of the
statute in which they are used, for the legislative intention may often be deduced from a
consideration of the subject-matter and the purpose of the act.
III. It follows, then, that to find for the plaintiff the language of the statute must first be
held to be ambiguous. Then, after resorting to all known canons of construction or
interpretation, that it must be concluded that a strained and unnatural meaning must be given
to the words of a statute which is otherwise clear and unambiguous. It must be found that,
while the provisions of section 5 of the act of 1875 were repealed so far as they applied to
sheriffs, yet they were reenacted so far as they applied to constables. It would be easier to
assume that if the legislature had intended such a result, it would have left out altogether that
portion of the section having to do with criminal fees.
Thompson, Morehouse & Thompson, for Respondent:
I. This act (Stats. 1883, p. 56), and particularly secs. 5 and 7, is unconstitutional in this, to
wit: It violates section 17 of article 4 of the state constitution in the matters of which we
complain, because the title of the act An act to regulate fees and compensation for official
and other services in the State of Nevada, and repeal all other acts in relation thereto
contains within the body of the act incongruous matter, not connected with or included in the
title, or else the title must be held to contain more than one subject.
with or included in the title, or else the title must be held to contain more than one subject.
There is no question but the legislature may classify counties under section 20 of article 4 of
the state constitution, as amended in 1889, for the purpose of establishing and regulating the
compensation and fees of county and township officers, but an act that fixes the
compensation and fees of the county and township officers, and at the same time fixes the
fees, which the public at large must pay for certain services must as to the fees paid by the
public be general and uniform. Compensation and fees in this constitutional provision
might possibly apply, as attempted in this act, if the act as to fees applied to every county in
the state; but the moment you classify counties into groups, so as to create different counties
as classes, for the purpose of giving a sheriff in one county a larger salary than some other
county, which no doubt can be done, then the word fee in the constitution means his pay or
compensation by fees, as distinguished from salary; but does not mean fees as applied to
the charge made for his services in a matter, for instance, serving a writ of attachment, and by
that means make a certain fee to be paid by a litigant in Esmeralda County and a different fee
in Lyon County. This constitutional provision (sec. 20, art. 4) uses the word fees as the mode
of payment of the compensation of the officer; that is to say, he may have his compensation
fixed as a salary, or in lieu thereof be paid in fees. Therefore, the legislature may classify
counties in one of which the officer is paid a salary and in another by fees. But, in so
classifying, the legislature cannot make the fee paid the officer for his services by an
individual different in the different counties throughout the state, because, by section 21 of
article 4 of the constitution, all laws fixing the price or fee which the individual pays must be
general and uniform.
II. The act of 1865 is general and applies to all counties alike, but the act of 1883,
aforesaid, applies to only certain counties, and in these counties section 5 and section 7,
relating to sheriffs and constables, lower the fees chargeable against the people in their
common right, so that a man living in Lyon County, under the act of 1865, applicable to that
county, must pay the sheriff a vastly higher fee for the same official services than a man
in Esmeralda County.
must pay the sheriff a vastly higher fee for the same official services than a man in Esmeralda
County. Why this difference? It is not intrinsic, nor a natural difference. The subject of the
legislation is one of a general nature and applies to all the people. It cannot be classified at all.
All people who are called upon to pay for the service of a subpena are in the same class.
Likewise, all persons who want a complaint or a summons or any writ served are of the same
class and it matters not what county they live in. They cannot be differentiated because
residents of different counties. The fee to be paid must be the same to all the people in every
county. Therefore, the schedule of fees, fixed by sections 5 and 7 of the act of 1883, is
unconstitutional, beyond any doubt, because such schedule not being the subject of special
legislation, or classification by counties, must fall unless made applicable to all counties.
III. This very constitutional question arose in Bloss v. Lewis, 109 Cal. 493, and is declared
to be unconstitutional, because in violation of section 4 of article 11 of the California
constitution, which is section 25 of article 4 of the Nevada constitution, and in violation of
section 11, article 1, of the California constitution, which is section 21 of article 4 of the
Nevada constitution.
IV. Again, in 1883 the state constitution specially prohibited the passing of local or special
laws (sec. 20, art. 4) regulating county and township business. (This legislation is certainly
regulating county and township business. (Welsh v. Bramlet, 98 Cal. 219; Bloss v. Lewis, 109
Cal. 493.) And the state constitution was not changed until 1889. So this act was within the
inhibition of the state constitution at the time of its passage.
R. C. Stoddard, Attorney-General, Augustus Tilden, and George Springmeyer, for
Appellant, in reply:
I. The title and the body of the act of 1883 speak for themselves. But if further investigation
be necessary, a comparison of the body of the act and its title with the bodies of the acts and
titles held constitutional in the following Nevada cases will be found conclusive: State v.
Ruhe, 24 Nev. 251; State v. Washoe Co.,
State v. Washoe Co., 22 Nev. 235; State v. Trolson, 21 Nev. 419.) The next contention of
respondent is that the act of 1883 is bad because it regulates county and township business
and is local or special legislation instead of being of general and uniform operation
throughout the state, as required by the constitution. He says this is the fact because
individuals pay different fees to officers in the different counties for the same kinds of official
services. This proposition appellant earnestly controverts in this: That the act is not local or
special legislation at all, and appellant asserts that it is without any question a law that is of
general and of uniform operation throughout the state.
II. This principle, taken in connection with the well-established proposition that courts will
use every reasonable intendment to sustain the constitutionality of a law and will uphold it
unless it is proved bad beyond a reasonable doubt, places all the burden upon the respondent.
It would be vain to pursue this line of inquiry further. The examination made reveals that
before the constitutional amendment of 1889, as now, the Legislature of Nevada could pass
local or special laws regulating the compensation of county and township officers. Can there
be any doubt that it could pass a general law such as the act of 1883, making a reasonable
classification on the basis of population regulating such compensation?
III. And now we come to the final constitutional principle involved. It is this: The
constitutional questions above dealt with and so vigorously urged by respondent cannot by
him be taken advantage of for the reason that he is not a party prejudiced. He does not come
within the class of Lyon County citizens who may object to paying the Esmeralda County
fees; he does not come within the class of Esmeralda County citizens who may object to
paying the Esmeralda County fees. He is simply a recipient of fees, an official who has a
claim for which he is suing the county, and consequently he is precluded from raising
questions pertaining to the constitutional rights of the person subject to such fees; i.e., the
payer of such fees.
IV. Nor will a court listen to an objection made to the constitutionality of an act by a
party whose rights it does not affect, and who has therefore no interest in defeating it."
affect, and who has therefore no interest in defeating it. (Cooley Const. Lim. 7th ed. 232.)
Only those whose rights would be prejudiced by the enforcement of an unconstitutional act
will be heard to question its validity. (6 Am. & Eng. Ency. Law, 1090, and cases there cited.)
It is a firmly established principle of law that no one can be allowed to attack a statute as
unconstitutional who has no interest in it and is not affected by its provisions. (8 Cyc. 787,
and cases cited.) Is respondent in the position of a party prejudiced simply because his fees
are fixed by the law he is attacking? The New York courts, in Town v. Loveless, 72 N. Y.
211; People v. Brooklyn, 89 N. Y. 75; Hall v. People, 90 N. Y. 498, and People v. Turner, 49
Hun, 466, 2 N. Y. Sup. 255, hold that the constitutional inhibition against taking property
without due process is for the benefit of owners of the property and cannot be taken
advantage of by a person whose property is not being so taken. So, too, a person charged with
crime under a statute cannot raise the question of its constitutionality upon grounds not
connected with its relation to criminals: (State v. Rauch, 47 Ohio St. 478, 25 N. E. 59; State
v. Snow, 3 R. I. 64; State v. Potterfield, 47 S. C. 75, 25 S. E. 39; Rutter v. Sullivan, 25 W. Va.
427.) Courts will not pronounce a statute unconstitutional because it may impair the rights of
persons not complaining of its unconstitutionality, said the court in Antonio v. Wright, 22
Grat. 833. The quoted excerpts from the decisions make the law clear. What, then, is the
position of the respondent and what are his rights? He is suing Esmeralda County for fees
earned in his official capacity as constable. He says the act of 1883 here in question is
unconstitutional, because: (1) It does not provide the same fees in each county in the state. (2)
It abridges and denies the privileges and immunities and the equal protection of the laws to
the citizens of the several counties who may have occasion to pay fees. The respondent is not
attacking the law in his capacity as a citizen so wrongfully discriminated against; he does not
belong to the class prejudiced. Consequently, he is not in a position to assert any rights in the
premises and cannot assume the rights of persons not complaining.
This is an action brought by respondent, as plaintiff, against the appellant, Esmeralda
County, to recover a judgment for $3,954.70 alleged to be owing him on account of an unpaid
balance for fees as constable of Goldfield Township, in said county, and accruing between the
1st day of March, 1905, and the 30th day of December, 1906, inclusive. The plaintiff had
presented monthly bills to the county for fees and disbursements, covering the time
mentioned, aggregating $13,815.75. The board of county commissioners, acting for the
defendant county, allowed on account of these several claims the aggregate sum of $9,861.05
and refused to approve or allow the same in any greater amount. The case was tried upon an
agreed statement of facts, and judgment awarded in favor of the plaintiff for the full amount
sued for. From the judgment, the defendant county has appealed.
By the provisions of the agreed statement of facts, appellant cannot recover, unless the
provisions of Comp. Laws, 2460, 2462, are applicable to his case. These section of the
Compiled Laws are sections 5 and 7, respectively, of an act entitled An act to regulate fees
and compensation for official and other services in the State of Nevada, approved March 9,
1865, as amended, Stats. 1875, p. 147, 149. Section 5, supra, related to the fees allowed to
sheriffs, and section 7, supra, the fees allowed to constables, by reference, constables were
allowed for certain services in criminal cases the same fees as are allowed sheriffs for
similar services.
By an act approved February 27, 1883, entitled 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 (Comp. Laws 2468-2507), another comprehensive act was passed regulating fees of
officers in this state, including the offices of sheriff and constable. Sections 5 and 7 of this
latter act corresponded with the same numbered sections of the act first mentioned, excepting
that the fees allowable were lower. By section 41 of the act of 1883 (Comp. Laws, 2506), it is
provided that the provisions of this act shall not apply to or affect the fees of the officers of
any county in this state wherein the total of the last election did not exceed eight hundred,
and the same shall apply to all future elections, and it is hereby provided that in such
counties 'An act to regulate fees and compensation for official and other services in the
State of Nevada,' approved March 9, 1S65 {see section 2457, et seq.), and the act
amendatory thereto, shall remain in full force and effect."
state wherein the total of the last election did not exceed eight hundred, and the same shall
apply to all future elections, and it is hereby provided that in such counties An act to regulate
fees and compensation for official and other services in the State of Nevada,' approved March
9, 1865 (see section 2457, et seq.), and the act amendatory thereto, shall remain in full force
and effect. Section 42 of the act (Comp. Laws, 2507) reads: This act 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. It was agreed that at the
general election in November, 1904, the total vote of Esmeralda County exceeded 800.
We think it was clearly the intention of the legislature that the provision of section 7 of the
act of 1883 (Comp. Laws, 2474), reading, for services and travel in criminal cases, the same
fees as are allowed sheriffs for similar services, referred to section 2472. In the lower court,
it would appear that counsel for respondent contended that, under certain rules of statutory
construction, this would not be the case, but as no such contention is urged in the brief upon
appeal, that position, we think, may be regarded as abandoned for lack of merit.
Counsel for appellant makes the sole contention upon this appeal that the act of 1883,
supra, is void, in that it violates certain sections of the state and federal constitutions. It is
first contended that it is contrary to the provisions of section 17, article 4, which requires 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. We think this
contention is without merit. The act deals exclusively with the subject of fees which public
officers may charge for official services and compensation which they may receive for
services rendered by virtue of their official position. The act contains but one general subject
and matter properly connected therewith. No authorities whatever have been cited supporting
counsel's contention that this act violates the provision of the constitution in question. The
following cases, we think, support the view that the act is within this particular
constitutional requirement: State v. Ah Sam, 15 Nev. 27, 27
within this particular constitutional requirement: State v. Ah Sam, 15 Nev. 27, 27 Am. Rep.
454; Esser v. Spalding, 17 Nev. 308; State v. Silver, 9 Nev. 231; State v. Atherton, 19 Nev.
344; Bell v. District Court, 28 Nev. 296; 1 L. R. A. (N. S.) 843, 113 Am. St. Rep. 854; State
v. State Bank and Trust Co., 31 Nev. 456; State v. Frazier, 59 Pac. 5. The contention that the
act of 1883 is violative of sections 20, 21, article 4, in that it is not of general and uniform
operation throughout the entire state, is answered, we think, by former decisions of this court.
In the case of State v. Fogus, 19 Nev. 247, this court by Hawley, J., said: From this
(referring to extracts from Constitutional Debates) 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. 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 conditions 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. 398, 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, 8 Pac. 813, 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.'
In the case of Comstock M. & M. Co. v. Allen, 21 Nev. 325, 330, this court, by Bigelow, J.,
said: It is first contended that this act is unconstitutional, upon the ground that it is special
legislation, applicable only to Ormsby County, and, as such, in conflict with section 20 of
article 4 of the constitution as it stood prior to the amendment adopted in 1SS9.
as it stood prior to the amendment adopted in 1889. It becomes necessary to pass upon this
question, because that act allows larger fees for these services than are allowed by the general
statutes, which, if this act is unconstitutional, would govern their amount. If the statute was in
conflict with the constitution as it stood at the time of the passage of the law, the subsequent
change in the constitution authorizing such legislation would not validate it. (State v. Tufly,
20 Nev. 427, 19 Am. St. Rep. 374.) We are of the opinion, however, that in the case of State
v. Fogus, 19 Nev. 247, the question of the constitutionality of such a statute was settled
adversely to the appellant, and, as the reasoning of the case seems clear and satisfactory, we
see no grounds for refusing to follow it here. (See, also, State v. Spinner, 22 Nev. 213.)
We are unable to see any force in the contention that this act (1883) is violative of section 1,
article 14, of the amendments to the federal constitution. The law operates alike on all
persons similarly situated, and hence it cannot be said to deny to any citizen the equal
protection of the law or abridge the privileges or immunities thereof within the purview of
this section of the constitution. (Walston v. Nevin, 128 U. S. 578, 9 Sup. Ct. 192, 32 L. Ed.
544; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923; Hayes v. State, 120 U.
S. 68, 7 Sup. Ct. 350, 30 L. Ed. 578; Cook v. State, 90 Tenn. 407, 16 S. W. 471, 13 L. R. A.
183.) Similar statutes exist in many states, and we are not aware of their ever having been
successfully attacked on this ground. It is our conclusion that the act of 1883, supra, is
constitutional, and, as respondent was allowed his fees in accordance with its provisions, it
follows that he is not entitled to recover in the action.
It was contended by counsel for appellant that, as the respondent accepted and was paid
the allowance upon his claims made by the county commissioners, he is not entitled to sue for
the amount disallowed. As this contention is raised for the first time upon the appeal, and
there is a question of its waiver under the stipulation, we have not given it any consideration.
The judgment is reversed, and the cause remanded.
____________
32 Nev. 319, 319 (1910)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1910
____________
32 Nev. 319, 319 (1910) Tilden v. Esmeralda County
[No. 1864]
AUGUSTUS TILDEN, Appellant, v. ESMERALDA
COUNTY, Respondent.
1. District and Prosecuting AttorneysSalariesFees.
The act of March 15, 1905 (Stats. 1905, c. 109), fixing the salary of the district attorney of a designated
county in full for his services, and repealing conflicting acts, suspends as to such county the operation of
Comp. Laws, 2296-2310, authorizing the collection by district attorneys of fees in addition to salary in so
far as they are conflicting; and the act of March 11, 1907 (Stats. 1907, c. 50), providing that the district
attorney in such county shall receive a salary and such fees * * * as are now allowed by law, gives the
district attorney the salary fixed and the fees authorized by sections 2296-2310.
2. StatutesGeneral LawsSubsequent Special StatuteEffect.
A special statute restricts the effect of a prior general act from which it differs, and suspends its
operations in the field covered by the special act.
3. District and Prosecuting AttorneysFees.
Under Comp. Laws, 2299, requiring the district attorney to attend the district courts for the transaction of
criminal business and to attend justice courts when required by the justices of the peace and conduct
prosecutions for public offenses, and under the vagrancy act of March 5, 1887, sec. 7 (Comp. Laws, 4866),
providing that for each conviction under the act the district attorney shall be entitled to ten dollars from the
county, a district attorney is not entitled to charge a fee of ten dollars for a conviction under the vagrancy
act in a case which he did not prosecute.
Action by Augustus Tilden against Esmeralda County. From a judgment for defendant,
plaintiff appeals. Reversed and remanded.
Augustus Tilden, District Attorney, in pro. per. for Appellant:
I. The issue is thus clearly defined: Esmeralda County claims that, as the fees in question
were abolished as to Esmeralda County by the act of 1905, the words in the act of 1907 and
such fees and commissions as are now allowed by law are meaningless, because at the time
of its passage there were no fees allowed by law in Esmeralda County. The district attorney
claims, first, that, admitting the act of 1905 repealed the fees in question, the repealing clause
of the act of 1907 restored them; second, that the act of 1905 was not a repealing but a
suspending act, and that the act of 1907 removed the suspension and restored the fees. The
latter is the better view, but either view is preferable to one that would render meaningless the
words and such fees and commissions as are now allowed by law. A statute should be so
construed that, if it can be prevented, no clause, sentence, or word should be superfluous,
void, or insignificant, but every sentence and word shall be given its ordinary meaning and
acceptation. (Crozer v. People, 206 Ill. 464, 69 N. E. 489.) In construing a statute, every part
should, if possible, be upheld and given its appropriate force. (Andel v. People, 106 Ill. App.
558.) Where one construction leaves a portion of a statute meaningless and nugatory, and
another construction gives to the entire statute an intelligible and consistent meaning, the
latter will ordinarily be adopted. (Western Travelers' Acc. Assn. v. Taylor, 62 Neb. 783, 87 N.
W. 950.) A statute should be so construed as to give effect to every part thereof. (Smith v.
Bryan, 4 Va. 121, 40 S. E. 652.) The presumption is that every word of a statute has some
force and effect. (Browne v. Turner, 54 N. E. 510.)
II. The act of 905 was a suspending, not a repealing, act, and upon its repeal the
suspension ceased.
and upon its repeal the suspension ceased. There is not in Nevada, as in most of the states, a
statutory provision that the repeal of a repealing act shall not revive the repealed act. Such an
act is in force in Colorado, but the supreme court of that state holds it inapplicable to the
repeal of a suspending act. The difference between repeal and suspension, and the effect of
the repeal of a suspending act, are pointed out in a Colorado case parallel in principle with the
one at bar. (Heirssen v. State, 23 Pac. 995; People v. Hunt, 41 Cal. 435; Broadhead v.
Milwaukee, 19 Wis. 624, 88 Am. Dec. 711; Pepin Township v. Sage, 129 Fed. 657.)
III. The statute is too plain for construction: For such and every legal conviction under
this act the district attorney shall be entitled to receive the sum of ten dollars from the
county. (Vagrancy Act, Stats. 1877, p. 181, Comp. Laws, 4866.) In all other misdemeanor
cases the district attorney is allowed a fee of fifteen dollars, collectible from the defendant as
costs and not chargeable to the county. (Comp. Laws, 2306.) It is obvious why the fee in
vagrancy cases should be chargeable to the county; the ability to pay such fee would in most
cases be itself a defense to the charge of vagrancy.
The district attorney of Esmeralda County is entitled to vagrancy fees even though he does
not personally appear and prosecute. In the first place, the section above quoted is not
hampered by any ifs or ands. For each and every legal conviction under this act the district
attorney shall be entitled to receive the sum of ten dollars from the county. The act defining
the duties of district attorneys plainly contemplates that the business of the justice of the
peace office shall usually be conducted without the district attorney's assistance. It
specifically requires him to attend the district courts held in his county for the transaction of
criminal business, but says that he shall attend justice courts only when required by justices of
the peace. (Comp. Laws, 2299.) If not so required, he need not attend, yet the provision in
relation to vagrancy fees is none the less peremptory. (Comp. Laws, 4866.) It is conceivable
that the justice might at all times prefer to conduct his business without the assistance of the
district attorney. The consideration, running from the district attorney to the state, for the
vagrancy fee is not alone his actual appearance and participation in the prosecution, but
his duty to be ever ready, able and willing so to appear and participate.
ney to the state, for the vagrancy fee is not alone his actual appearance and participation in the
prosecution, but his duty to be ever ready, able and willing so to appear and participate.
Robert L. Hubbard, for Respondent:
I. The district attorney of Esmeralda County in this act was given his salary in the
following words: The district attorney and ex officio superintendent of public schools shall
receive $1,800 per annum. And section 2 of said act is as follows: All acts or parts of acts
in conflict with the provisions of this act are hereby repealed. It is very plain that the
legislature in passing this act meant to do and did place the district attorney of Esmeralda
County on a salary basis and repealed all acts under which he received any fees. The special
act of 1905 did not act as a suspension of the general laws as contended by appellant. The
legislature may suspend the operations of the general laws of the state, but when it does so the
suspension must be general and cannot be made for individual cases, or particular localities.
(Cooley, Const. Lim. 6th ed. p. 482, citing Holden v. James, 11 Mass. 396; Davidson v.
Johonnot, 7 Metc. 388; Simonds v. Simonds, 103 Mass. 572.) The act of 1905 was not an
exception to Comp. Laws, 2306, 4866. (Ex Parte Smith, 40 Cal. 419.)
II. The act of 1907 did not revive the general law (Comp. Laws, 2308, 4866) in Esmeralda
County, and the district attorney is not entitled to any fees under the said section. The effect
of a repealing statute, says a very eminent judge, I take it to be, is to obliterate the statute
repealed as completely from the records of parliament as if it never had passed, and that it
must be considered as a law that never existed, except for the purpose of those actions which
were commenced, prosecuted, and concluded while it was an existing law. (Hirsburg v.
People, 6 Colo. 147, quoting from Sedgwick, Stat. and Const. Law, p. 109.)
III. The appellant in this case seeks to invoke the common-law rule that the repeal of a
repealing act restores the act repealed. This principle has no application here for the reason
that it is a universal doctrine that the common law is restored when a statute changing it is
repealed. (Mathewson v. Phoenix Iron Foundry Company, 20 Fed.
v. Phoenix Iron Foundry Company, 20 Fed. 281.) The doctrine of the common law that a
repeal of the repealing statute revives the act repealed can only be invoked when a statute is
passed in derogation of the common-law rule, and subsequently that statute is repealed. In
this event, by the doctrine of the common law, the common law is restored and operates as
formerly. Appellant contends that in the act of 1907 the words And such fees and
commissions as are now allowed by law were sufficient to put in operation the general fees
allowed district attorneys by Comp. Laws, 2306, 4866. This is not any declaration or intent
sufficient to accomplish the revival of said fee under said sections, as the Constitution of
Nevada, article 4, section 17, states that no act of the legislature could be amended by
reference to its title only, but in such case the act as revised or sections as amended shall be
enacted and published at length. (State v. Elko County, 23 Pac. 935; State v. Conkling, 19
Cal. 513; People v. Tyler, 36 Cal. 523.)
Appellant is the district attorney of Esmeralda County, and brings this action against said
county to recover the sum of $740 alleged to be due him as fees for official services. To his
complaint a demurrer was interposed in the lower court and sustained. He elected to stand
upon the sufficiency of his complaint, and judgment for costs was entered in favor of the
respondent county. From the judgment he appeals.
The appeals presents the following questions of law: (1) Is the district attorney of
Esmeralda County entitled, in addition to his salary, to fees for convictions in felony cases as
provided in Comp. Laws, 2306? (2) Is he entitled to a fee of $10 for all convictions in
vagrancy cases under the provisions of Comp. Laws, 4866?
By an act entitled An act regulating the compensation of county officers in Esmeralda
County in the State of Nevada, approved March 15, 1905, it is provided:
Section 1. From and after the approval of this act, the county officers of Esmeralda
County, State of Nevada, named in this act, shall receive the following salaries and fees in
full compensation for their services: * * * The district attorney and ex officio superintendent
of public schools shall receive eighteen hundred {$1,S00) dollars per annum.
and ex officio superintendent of public schools shall receive eighteen hundred ($1,800)
dollars per annum. * * *
Sec. 2. All acts or parts of acts in conflict with the provisions of this act are hereby
repealed. (Stats. 1905, p. 210.)
By an act entitled An act pertaining to compensations of county officers in Esmeralda
County, in the State of Nevada, and repealing all acts or parts of acts in conflict therewith,
approved March 11, 1907, it is provided:
Section 1. From and after the passage of this act the county officers of Esmeralda County,
named in this act, shall receive the following salaries, fees and commissions for their services
and none other: * * * The district attorney and ex officio superintendent of public schools
shall receive $3,000 per annum, and such fees and commissions as are now allowed by law. *
* *
Sec. 2. All acts and parts of acts in conflict with this act are hereby repealed. (Stats.
1907, c. 50.)
It is conceded by respective counsel that prior to the act of 1905, supra, the district
attorney of Esmeralda County was entitled to the fees pertaining to that office, prescribed in
the general laws. The general act relating to the office of district attorney, and which
prescribes the duties of that officer, was approved March 11, 1865, and is entitled An act
concerning district attorneys. (Comp. Laws, 2296-2310.) By the twelfth section of this act it
is provided: The district attorney, in addition to the yearly salary allowed by law, shall
receive the following fees: For each conviction in capital cases, the sum of one hundred
dollars; on conviction of any other felony, fifty dollars, and for a misdemeanor. * * * (Comp.
Laws, 2306.)
By section 7 of an act entitled An act concerning vagrancy and vagrants, approved
March 5, 1877 (Comp. Laws, 4860-4867), it is provided: For each and every legal
conviction under this act the district attorney shall be entitled to receive the sum of ten dollars
from the county. * * * (Comp. Laws, 4866.)
It is the contention of counsel for respondent that the appellant is not entitled to any fees,
because by the act of 1905, supra, all former laws were repealed, and he was limited to
$1,S00, which was his only compensation, and, because the words, "and such fees and
commissions as are now allowed by law," used in the statute of 1907, supra, could not
operate to create a law which did not theretofore exist, nor could they operate to revive a
dead or repealed law; hence, that such words are of no force or effect.
to $1,800, which was his only compensation, and, because the words, and such fees and
commissions as are now allowed by law, used in the statute of 1907, supra, could not
operate to create a law which did not theretofore exist, nor could they operate to revive a dead
or repealed law; hence, that such words are of no force or effect.
The act of 1905, supra, being special, and applicable only to Esmeralda County, did not
operate as a repeal of any portion of the general laws applicable to the office of district
attorney, but only to suspend the operations of such general laws as to said county, in so far as
they were in conflict with the special act.
In Lewis's Sutherland on Statutory Construction, 2d ed. vol. 1, sec. 275, p. 532, the author
says: If the special statute is later, the enactment operates necessarily to resist the effect of
the general act from which it differs. These interpretations harmonize with the rule that when
a general intention is expressed, and also a particular intention, which is incompatible with
the general one, the particular intention shall be considered an exception to the general one.
The special act is in the nature of an exception to the general law and suspends its operation
in the field covered by the special act, and when the latter is repealed the general law operates
as if the special law had never existed. (Santa Barbara v. Eldred, 95 Cal. 378, 30 Pac. 562;
People v. Hunt, 41 Cal. 435; State v. Sawell, 107 Wis. 300, 83 N. W. 296.)
We do not think it was the intention of the legislature, by section 7 of the vagrancy act,
supra (Comp. Laws, 4866), to give to district attorneys, as contended, a fee of $10 for every
conviction under the act, regardless of whether the district attorney actually prosecuted the
case, or even had knowledge that the same was being so prosecuted.
A similar question was presented to the Supreme Court of California in the case of
Edwards v. County of Fresno, 74 Cal. 475, 16 Pac. 239. The court disposed of it in the
following apt language: It will be perceived that the district attorney for Fresno County was
by law to be paid for his services a salary, and, in certain cases, fees for convictions. We can
discover nothing in our laws relating to the district attorney, his duties or fees, which
permits us to think that the legislature intended the plaintiff here should be entitled to
charge and receive the sum of $15, or any other sum, from the County of Fresno, for
convictions where he never instituted any proceedings at all, never appeared before the
magistrates where the convictions were had, or rendered any service whatever, either by
himself or deputy.
duties or fees, which permits us to think that the legislature intended the plaintiff here should
be entitled to charge and receive the sum of $15, or any other sum, from the County of
Fresno, for convictions where he never instituted any proceedings at all, never appeared
before the magistrates where the convictions were had, or rendered any service whatever,
either by himself or deputy. The pervading idea that runs through the whole law pertaining to
the compensation allowed district attorneys is for services rendered as such. Where the law
allows him a fee for each conviction, it would seem as if a conviction was meant in which the
district attorney or his deputy took some part, either by the institution of the proceedings, by
being present or aiding at the trial, or in some other way performing some service as district
attorney. In the present instance, the record shows no connection by the district attorney with
the convictions for which fees are claimed, except the presentation of his bill to the board of
supervisors, and the action brought to cover his alleged fees.
The ordinary vagrancy case is not one which requires the services of the district attorney.
Occasionally a case may arise such that a district attorney should consider it his duty to
prosecute it, of his services may be required by a justice of the peace; but, unless so required,
no duty is imposed upon him by law to prosecute misdemeanor cases in justices' courts. The
language of the statute is: He shall attend the district courts held in his county, for the
transaction of criminal business; he shall, also, attend justices' courts in his county, when
required by the justices of the peace, and conduct all prosecutions on behalf of the people for
public offenses. (Comp. Laws, 2299.)
If it were the intention of the legislature to make the district attorney a present of $10 every
time there was a conviction in a vagrancy case in his county, one would naturally expect to
find some intimation of such intended benefaction in the title of the act. Section 7 of the
vagrancy act should be construed with reference to other statutes in pari materia affecting the
office of district attorney, and, when so construed, the legislative intent, we think, is manifest.
It is our conclusion that appellant is entitled to fees for convictions in felony cases, but
that he is not entitled to such fees for convictions under the vagrancy act where services
were neither performed nor required.
convictions in felony cases, but that he is not entitled to such fees for convictions under the
vagrancy act where services were neither performed nor required.
The judgment and order sustaining the demurrer are reversed, and the cause remanded,
with directions to the trial court to rule upon the demurrer in accordance with the views in
this opinion expressed.
____________
32 Nev. 327, 327 (1910) Leeper v. Jamison
[No. 1862]
R. C. LEEPER, Appellant, v. LYLE JAMISON, et al., as the City Council of the City of
Reno, and the Mayor and City, Respondent.
1. Municipal CorporationsOfficersRemoval.
Article 15, section 11, of the constitution provides that when the tenure of any office is not declared by
law, the office shall be held during the pleasure of the power making the appointment. Held, that where the
term of office of the chief of police is not specified by law or city charter, an incumbent may be removed at
will without his resignation, and the acceptance by the mayor and council of an incumbent's resignation
constitutes a removal, though the resignation was executed many months before for a special purpose, and
had no force as such, and was not to be presented.
Action by R. C. Leeper against Lyle Jamison and others, City Council of the City of Reno,
and another. Defendants had judgment, and plaintiff appeals. Affirmed.
W. D. Jones, for Appellant:
I. The main questions on this appeal are: (1) Has the tenure of office of the chief of police
of Reno been declared? (2) Could the council with the mayor remove the appellant without
cause, notice or hearing? (3) Does section 11, article 4, of the constitution of this state
(Comp. Laws, 175) apply? {4) A construction of section 4, article 7, of the constitution of
this state {Comp.
(4) A construction of section 4, article 7, of the constitution of this state (Comp. Laws, 133)
and its application to the question involved. (5) Was the mayor and council justified in using
the so-called resignation of appellant in ousting him from the office of chief of police? As to
the first question, has the charter declared the tenure of the chief of police? Section 1 of
article 9 makes plain the great importance of the office of chief of police.
II. Appellant insists that from all of these provisions of the charter the tenure of office of
the chief of police has been declared by the charter to be: (1) Until removed as provided in
article 19 of the charter (Stats. 1905, 139, sec. 2), or as provided in article 3 (Stats. 1905, 101,
sec. 2). (2) Or until a new mayor and council succeed to those respective offices and
nominate and confirm a successor.
III. The second question is: Could the council with the mayor remove Leeper as chief of
police without cause, notice or hearing? We think not. Article 3 of the charter (Stats 1905,
101, sec. 2) provides that the mayor may suspend the chief for dereliction, neglect or
nonperformance of duty, and report such action and cause therefor to the council at the first
subsequent regular meeting, and if the council by a majority vote approve the suspension, the
office shall be declared vacant. If a majority vote be against such approval, such suspension
shall be revoked. We have clearly shown that the charter has prescribed two methods of
vacancy in the office of chief of police, to wit: the one as prescribed in article 19 (Stats. 1905,
139, sec. 2), and the other in article 3 (Stats. 1905, 101, sec. 2).
IV. Expressio unius est exclusio alterius. (Anderson's Dictionary, 436.) The rule is well
settled that where the events that shall constitute a vacancy in a particular office are clearly
enumerated, all other causes of vacancies are excluded.
V. To determine the tenure of office of appellant, the entire charter should be read and
construed together, from which it will appear that it was the intention of the legislature that
the chief of police should be appointed for two years, unless sooner removed in the manner
prescribed in the charter, or unless he should resign or die. (State v. Ruhe, 24 Nev. 261.)
Frank D.
Frank D. King and Summerfield & Curler, for Respondents:
I. Section 11 of article 15 of the constitution of Nevada, provides as follows: The tenure
of any office not herein provided for may be declared by law, or, when not so declared, such
office shall be held during the pleasure of the authority making the appointment; but the
legislature shall not create any office, the tenure of which shall be longer than four years,
except as herein otherwise provided in this constitution.
II. Counsel for appellant urges that, because the office of chief of police was not created by
the constitution, the provisions of section 2 of article 15 of the constitution do not apply to
that office. In this he fails to ascribe to the words any office not herein provided for the
significance and the meaning which they necessarily convey. It is too plain for argument that
they include statutory as well as offices of constitutional origin, and the several cases
heretofore cited show that the offices in question, in those cases, are offices of statutory origin
only. Section 4 of article 7 of the constitution, directing provision to be made by law for the
removal from office of any civil officer other than state and judicial officers by impeachment,
does not, under the authorities hereinbefore cited, limit the appointing authority for removing
its appointees whose tenure of office has not been declared by law.
III. If he was removed by the appointing power rightfully, it necessarily follows that he
had, and has, no right to the salary of the office during the time he was removed.
IV. The conclusion is irresistible that it was the legislative intent that these particular
officers, by reason of the nature of their duties, should not have a fixed tenure of office, but
should be removable promptly at the pleasure of the appointing power. The law having
provided, ex industria, the tenure of all of the other officers, it is not possible that the
omission to fix a tenure of these particular offices was the result of oversight or mistake. In
fact, it is well known that in the government of American municipalities these particular
officers are generally appointed without any fixed tenure, and are subject to removal with or
without cause, and with or without notice, at the pleasure of the appointing power. The
charter act of the City of Reno is not, therefore, unique in this respect, but follows along the
line of law adopted for the government of municipalities in this country.
but follows along the line of law adopted for the government of municipalities in this country.
Plaintiff brought this action to obtain a judgment declaring that he is the chief of police of
the City of Reno, and as such entitled to an accrued salary of $2,047.75. From a decision
adverse to him in the district court, he has appealed.
The case was tried upon an agreed statement of facts, from which it appears that the
plaintiff was appointed and became chief of police on the 14th day of May, 1907; that on the
9th day of December, 1907, while the mayor and city council were in regular session, the
mayor delivered to the clerk of the council a writing signed by the plaintiff, stating that he
tendered his resignation as chief of police, to take effect at once, and asking that it be
accepted; and thereupon the office of chief of police was declared to be vacant and a
successor to plaintiff was nominated and appointed and the appointee qualified and entered
upon, and has since continued to perform, the duties of the office. According to the stipulated
facts, this writing had been signed and delivered by the plaintiff to the mayor on the 13th day
of May, 1907, for the purpose of protecting the mayor from the criticism of certain persons
who were opposing the plaintiff for the nomination and appointment to the office, and had
been left with the mayor under the promise that it would not be used for any other purpose,
nor as a resignation of the office by the plaintiff.
A number of questions have been presented and argued relating to the force and effect of
the writing, but these need not be considered at length, for it may be conceded that the writing
had no force as a resignation when it was never executed nor authorized by the maker to be
delivered or used for that purpose. As no term for the office of chief of police is specified in
the charter nor by law, the incumbent could be removed at will without any resignation being
filed and without any reason being given by the mayor or council for his removal, under
section 11 of article 15 of the state constitution, which provides that, when the tenure of any
office is not declared by law, the office shall be held during the pleasure of the power
making the appointment.
the power making the appointment. Many cases sustaining this proposition are cited in the
brief.
The judgment of the district court is affirmed.
____________
32 Nev. 331, 331 (1910) State v. O'Keefe
[No. 1849]
STATE OF NEVADA, Appellant, v. DANIEL O'KEEFE,
SAM OATS and J. H. GRANT, Respondents.
1. BailCriminal ProsecutionsRecognizanceDescription of OffenseSufficiency.
In recognizance the details of the offense need not be stated with the particularity required by the
indictment, but it suffices if any word is used by way of recital which is commonly employed to designate
the particular offense.
2. BailCriminal ProsecutionsRecognizanceDescription of OffenseSufficiency.
The criminal practice act, section 511 (Comp. Laws, 4476), provides that the recognizance shall be
substantially in the form there given, and in a space contemplated for the name of the crime are the words,
in parentheses, designating it generally. The civil practice act, section 71 (Comp. Laws, 3166), provides
that the court shall disregard any error or defect in the proceedings which shall not affect the substantial
rights of the parties. Held, that a recognizance reciting that an indictment having been found charging W.
with the crime of uttering and passing false paper, etc., sufficiently designated the crime without stating
that the false paper was passed with intent to defraud.
Action by the State of Nevada against Daniel O'Keefe and others. From the judgment,
plaintiff appeals. Reversed with directions.
Augustus Tilden and George Springmeyer, for Appellant:
I. Killing, like stealing and theft, is a layman's term, and all killings are not
crimes, but the court, despite the statutory provision that the bond shall name the nature of
the offense charged, construed the allegation to mean a felonious killing and held the
description sufficient. Breaking in an outhouse and stealing therefrom."
an outhouse and stealing therefrom. (Main v. Comm., 56 S. W. 970.) The statute in
Kentucky described the offense as the felonious breaking any outhouse belonging to or used
with a dwelling-house. Said the court: The bond is good because the description indicates
in a general way the nature of the charge, which is all that is required. This is particularly
important because a felonious intent is an essential ingredient of the offense. (State v.
Reiman, 3 Pennewill, 73.) With the offense of V. L. O. L. (Allen v. Commonwealth, 73 S.
W. 1027.) The Kentucky statute requires that the undertaking of bail shall describe the
offense. The court held the above description good on a prosecution for the violation of the
local option law, saying that the abbreviation did not invalidate because the sureties knew
defendant was indicted and they were pledging themselves that he would appear, even though
they did not understand the offense. Obtaining money by false pretenses. (Terr v. Connor,
87 Pac. 591.) In this crime the guilty knowledge and the felonious intent are essential
ingredients. But it must be admitted that the descriptive words are the general words naming
the offense. Not naming the offense at all; i.e., an entire omission of any description. (People
v. Gillman, 26 N. E. 469.)
II. When it is remembered that our code was adopted from that of New York and that the
New York court was construing a form of bond which throughout is in the language of the
Nevada form, even the words shall at all times render himself amenable to the order and
process of the court, the decision is rendered most striking and important. It is believed that
it conclusively determines the principal case adversely to respondents. To follow what is so
well demonstrated by the New York court, in our case the substantial rights of W. J.
Wheaton, the person admitted to bail, are in no wise prejudiced, and unless they are so
prejudiced by a technical error in the undertaking, because of the general policy shown by the
statute (Comp. Laws, 4452), the sureties will not be released; and, further, even though the
description be defective, that is not the essence of the undertaking, for the sureties contract
for more, viz: that the indicted person "shall at all times render himself amenable to the
order and process of the court," and this the respondents as sureties have failed to do.
shall at all times render himself amenable to the order and process of the court, and this the
respondents as sureties have failed to do.
III. But one other attack which would be entitled to any consideration could be made upon
the description, the crime of uttering and passing false paper. It is that the words false
paper are not used in section 83-1/2 of the crimes and punishments laws, but instead are
used bill, note, check or other instrument in writing. False paper, in common parlance,
applies to all of them, and although the crime has not been long known to the law, the
universal description applied to it is the crime of uttering and passing false paper, just as
murder is the common term for the crime. In State v. Murphy, 23 Nev. 390, our supreme
court held that selling whisky to an Indian was a sufficient description in a bond, for
although the statute does not use the word whisky but only the words spirituous, or malt
liquor, wine or cider of any description, the courts judicially know that whisky is a spirituous
liquor. Said the court: It is well settled that courts will take judicial notice of the meaning of
words, which from continuous use have acquired a definite signification generally, if not
universally, known. This effectually disposes of any point that may be made along this line.
Finally, the court, in passing upon the liability of the respondents upon the bail bond in
question, might with advantage keep in mind the following additional facts and principles:
(1) In every respectsaving the controversy as to the description of the crimethe
Nevada statute as to the requisites of bail bonds is followed precisely and word for word. And
the indictment by the complaint appears to be good.
(2) The courts generally hold that trivial defects or technicalities in the form of bonds
should be disregarded, since the sureties are being sued civilly. A bond is sufficient where
the sureties know what they undertake. (City of Kansas v. Hescher, 4 Kan. App. 782, 46
Pac. 1005; City of Kansas v. Garnier, 46 Pac. 707; 5 Cyc. 103, and citations.) Texas is the
only state holding contra.
(3) The general policy of the law is to hold the sureties wherever possible. Section 1895 of
Cutting's Compiled Laws expressly makes that provision as to official bonds.
(4) Passing false paper is the general method of describing the offense, just as murder
or arson or obtaining money by false pretenses are the usual terms applied to those
crimes.
(5) Public policy warrants the upholding of the bond signed by respondent, for, if it be so
defective as to release the sureties, it would be seldom indeed that a justice court bond would
stand. Justices of the peace are rarely learned in the law, and to require a technical description
of an offense would lead to hardship upon the public and its officers, to the abuse known as
jumping bonds, and to the resultant increase in the commission of crime.
(6) The statutory requirement, describing it generally, is not mandatory, and universally
it is held that closely related phrases do not mean the technical precision required in an
indictment. (5 Cyc. 98; 5 Cent. Dig. col. 2371.)
Frederick W. Hankey, for Respondents:
I. Curiously in the act of 1907 the legislature state that persons violating said provision
shall be deemed guilty of a felony. If the legislature, by the act of 1907, created a new
crime, that crime could only be determined as follows, that is, any person who would pass,
utter or publish, with the intent to defraud, an instrument in writing, for the payment of
money, of the delivery of property, directed to or drawn upon some real or fictitious person,
bank, firm or corporation, when such person had no money, property or credit, or insufficient
money, property or credit, to meet or make payment of the same. If a person did all of those
things and had no intention to defraud, it would not be a crime. Any person might pass, utter
or publish a check for the payment of money, directed to and drawn upon a bank when such
person had no money in the bank, and do so innocently. The contention of respondents was
and is that there is no such offense against the criminal law of the State of Nevada as the
crime of uttering and passing false paper. There is a crime and offense against the laws of
the State of Nevada covered by the act of 1907, page 207, of the passing, uttering or
publishing a bill, note, check or instrument, with the intent and under the circumstances
defined in that statute.
page 207, of the passing, uttering or publishing a bill, note, check or instrument, with the
intent and under the circumstances defined in that statute. The recognizance in this case did
not define that offense, nor did it give any general characterization or designation of a crime
known to the laws of the state, and therefore did not comply with section 4476 as to the form
therein given, either in haec verbis or substantially.
II. If in the case at bar there was any general designation of the alleged offense stated, it
would have been forgery, and that was not used, and the designation omitted to state any
but one of the essential elements of the offense described in the act of 1907.
III. It will be contended that uttering and passing false paper is not an offense at common
law, nor that there is any general name by which it can be designated, unless it be forgery,
as provided by the law of 1861. It is here and now expressly admitted by counsel for
respondent that if a recognizance or bail bond generally designates an offense as murder,
rape, larceny, forgery, riot, assault, or any other general term importing crime, it
would be sufficient, but upon this question it is finally submitted that this recognizance fails
in every particular, and by reason thereof did not create an obligation against the respondents,
and the demurrer was properly sustained. Adverting to counsel for appellant's persistent
appeal to this court to proceed upon the principles of abstract justice and to disregard the
plain provision of the statute, without a compliance with which the respondents could not be
held liable, we respectfully beg leave to recall this court's attention to this expression as given
in Sherman v. Shaw, 9 Nev. 152, in which the court said: It is as unsatisfactory to the court
as it is to counsel to have cases disposed of upon mere questions of practice. But it must be
remembered that the rules of practice are as obligatory upon us as upon the parties to the suit;
and if the attorneys desire to have their cases examined upon the merits they must comply
with the plain provisions of the statute, and the rules as established by the court. This
expression has been approved in Marx v. Lewis, 24 Nev. 306, and in a criminal case where
this court felt extreme reluctance (State v. Preston, 30 Nev. 301.) Augustus Tilden, District
Attorney, and George Springmeyer, for Appellant, in reply:
Augustus Tilden, District Attorney, and George Springmeyer, for Appellant, in reply:
I. A further consideration is, that this, being a suit to enforce a contract, under our practice
it is purely a civil suit, a proceeding to recover on the forfeiture of a bond, and does not,
therefore, in any respect, have to do, in a criminal way, with any of the rights of the person
accused of crime. Even under the common-law writ known as a scire facias to enforce a
forfeited recognizance, it is held to be a wholly civil proceeding. The action to enforce,
whether by scire facias or by ordinary suit, does not involve the guilt or innocence,
conviction or acquittal of any party, and therefore is not a criminal case of any grade. * * *
Nor do we think that such action can be considered in any reasonable sense a criminal
proceeding, although it may be a proceeding arising in a criminal case. (U. S. v. Zarafonitis,
150 Fed. 97.) And see Kirk v. U. S., 124 Fed. 333, for a full discussion. Practically every state
holds such a proceeding to be civil. (19 Ency. Pl. & Pr. 307.)
II. A full description of the offense would make the bond a very cumbersome document. It
is, of course, clear that a person, not having sufficient funds with the drawee, might
innocently draw and pass a check, for example. And an indictment that failed to allege the
criminal intent would be defective. It is believed that sufficient particularity for a bond is had
by the use of the word crime, and the rest of the bond sufficiently imputes the criminal
intent. The words, with the intent to defraud, do not enlighten the sureties, even if they are
entitled to know and are not presumed to know the charge. We have no quarrel with Waters
v. People, 35 Pac. 56, cited by respondents. It clearly comes within the category of cases
where a bond is given for an offense which is not punishable in law, i.e., is not a crime at all.
Here there is no suggestion that W. J. Wheaton was not charged with a crime. Although they
were not commented upon by counsel for respondents, it is earnestly urged that in reaching a
conclusion upon the question of whether the offense is properly described, the cases cited in
appellant's opening brief are of emphatic significance, and should not be disregarded. And
again, we call the attention of the court to some valid descriptions, almost parallel to our
case: "Resisting process."
again, we call the attention of the court to some valid descriptions, almost parallel to our case:
Resisting process. (Browder v. State, 9 Ala. 58.) With the offense of V. L. O. L. (Allen v.
Comm., 73 S. W. 1027.) Not naming the offense at all, i.e., an entire omission of any
description. (People v. Gillman, 26 N. E. 469.)
III. Attention is called to the fact that these provisions do not go merely to the pleadings,
but to the proceedings; the decision is to be based on abstract justice. This court has on
numerous occasions applied these provisions and disregarded technicalities. (Hawthorne v.
Smith, 3 Nev. 182; McManus v. Ophir Co., 4 Nev. 15; Flagg v. Trustees, 4 Nev. 400; State v.
C. P. Co., 7 Nev. 103.) In McManus v. Ophir Co., supra, this court quotes from Van
Santvoord as follows: This furnishes a single test in all cases, a broad and universal test,
namely: That if the defect is such as in the opinion of the court will not affect the substantial
rights of the adverse party, no matter in what that defect shall consist, the judgment will not
be reversed or affected thereby * * *; the action is to be stated, tried and determined on its
merits alone, and that the substantial rights of the parties, and they alone, are to be regarded
as controlling the administration of justice under the form of law. Appellant vigorously
asserts that, taking this to be a civil proceeding, holding good the description of the offense
will not affect the substantial rights of the respondents; and, on the other hand, if it is in the
nature of a criminal proceeding, such a holding will not affect any substantial rights of W. J.
Wheaton, the defendant accused of crime. Whatever view is taken, the conclusion is the
same. Apropos the Texas case, it is interesting that the Texas legislature, presumably because
of the interpretation given to the statute, has twice amended the provision upon recognizance.
In commenting upon the Texas cases the Supreme Court of New Mexico in Terr v. Minter,
supra, a case decided in 1907, said: It is true that there were some cases which seemed to
hold that the offense must be described with particularity, and the elements of the crime set
out, notably the Texas cases cited by appellant. But the latter cases are founded upon a statute
which provides that the offense of which the defendant is accused be definitely named in the
bond, and that it appear therefrom that he is accused of some offense against the laws of
the state."
accused be definitely named in the bond, and that it appear therefrom that he is accused of
some offense against the laws of the state.
This action was brought to recover on a recognizance, given under section 511 of the
criminal practice act (Comp. Laws, 4476), by which one W. J. Wheaton, who had been
indicted, obtained his release and failed to appear for trial. General demurrers to the
complaint were sustained, and the state has appealed from a judgment rendered in favor of the
respondents for costs. The only question presented is whether the recital an indictment
having been found * * * charging W. J. Wheaton with the crime of uttering and passing false
paper is such a defective reference to the crime as to invalidate the recognizance and prevent
it from being enforced. The statute states that the recognizance should be substantially in the
form there given; and in a space contemplated for the name of the crime are the words, in
parentheses, designating it generally.
The authorities are not uniform. It is claimed that it was necessary to state in the
recognizance that the false paper was passed with intent to defraud, for without such intent
there would be no guilt. This would be true if we were considering the necessary allegations
of an indictment, but the cases very generally hold that the details of the offense need not be
stated with the particularity required by indictment. In State v. Birchim, 9 Nev. 99, this court
said: The rules governing the construction of commitments and recognizances are essentially
different. The common law has always protected the subject against arbitrary imprisonment
by requiring the causes of his detention to be expressed upon the commitment. * * * A
recognizance, however, is the voluntary act of the obligors, and assumes the existence of a
valid commitment. The reasons for setting forth the particulars of the offense in commitments
do not exist in the case of recognizances, and the construction given in the words nature of
the offense,' as they occur in section 166 (Comp. Laws, 4136), is inapplicable to the same
words in section 504. * * * The object of this section is to provide a form which the
magistrate may be required to accept.
this section is to provide a form which the magistrate may be required to accept. A failure to
follow the form would not release the obligors from their liability. (2 Ld. Raym. 1138, 1459;
Phelps v. Parks, 4 Vt. 488; State v. Cannon, 34 Iowa, 323.)
Respondents rely in part upon, and it is said the district court was moved by, the opinions
in Belt v. Spaulding, 17 Or. 130, 20 Pac. 829, U. S. v. Sauer (D. C.), 73 Fed. 671, and various
Texas decisions. This federal case was in that state, and it was held that the form of the bail
bond taken by the United States commissioner should conform in all substantial particulars to
the requirements of the state in which the commissioner was sitting. The opinion in Belt v.
Spaulding was written more than twenty years ago by one of the justices of the Supreme
Court of Oregon, and another justice concurred in the result, apparently leaving the language
approved by a single judge. The Supreme Court of Colorado, in an opinion rendered last year
in Marmaduke v. People, 45 Colo. 357, 101 Pac. 337, said: We are aware of the technical
rule adopted in Belt v. Spaulding, 17 Or. 130, 20 Pac. 827, but are not impressed with the
logic of that case and decline to follow it. The criminal code of Texas being more stringent
than ours in its provisions that the offense of which the defendant is accused be distinctly
named in the bond and that it appear therefrom that he is accused of some offense against the
laws of the state (article 309, subd. 3), the decisions there are not considered directly
applicable under our statute.
Among the cases cited by the appellant which support the more liberal rule are ones in
which the terms used by way of recital of the offense were resisting process (Browder v.
State, 9 Ala. 58); stealing from the mail (U. S. v. Dennis, Fed. Cas No. 14,949); stealing
from a store (Young v. People, 18 Ill. 566); carrying concealed weapons (Hall v. State, 9
Ala. 827); offense of misdemeanor (Vinson v. Northen, 94 Ga. 698, 19 S. E. 991); the
offense of larceny (Foote v. Gordan, 87 Ga. 277, 13 S. E. 512); a charge of killing one T.
W. (State v. Williams, 17 Ark. 371); and with the offense of V. L. O. L. (Allen v. Com., 73
S. W. 1027). Other cases are presented in which designations similar in principle and
omitting to state that the offense had been committed with felonious intent or guilty
knowledge were held not to invalidate the recognizance.
felonious intent or guilty knowledge were held not to invalidate the recognizance.
In People v. Gillman, 125 N. Y. 372, 26 N. E. 469, the court enforced a recognizance
which followed the statutory form, but in which there was an omission to fill the blank in the
recital intended for the specification of the nature of the crime. There was a provision in New
York somewhat similar to section 71 of our practice act (Comp. Laws, 3166), which provides
that the court shall in every stage of the action disregard any error or defect in the
proceedings which shall not affect the substantial rights of the parties. It was said that an
error or mistake in the undertaking will not render it invalid unless it have actually prejudiced
the defendant or tend to his prejudice in respect to a substantial right. That, obviously, is not
the effect here of the omission. As formerly, so now, being the voluntary act of the party, the
undertaking permits the presumption of the regularity of the proceedings, and by coming into
the proceeding in that manner, in behalf of the accused, the surety will be presumed to know
upon what charge the prisoner was held by the sheriff. The statement of the offense charged,
therefore, is not of the essence of the undertaking of bail, nor does it bear very materially
upon the obligation. It is rather a matter for recital, and it bears upon the completeness of the
instrument in form and historical detail. No doubt if the recital of the offense in the
recognizance had contained all the details required to be stated in an indictment, the
defendants would have signed and executed the instrument. It must be presumed that they
were aware of the offense for which Wheaton had been indicted or they would not have
sought his release. The real purposes of the recognizance were to obtain his discharge from
custody, which they secured, and to guarantee the state the payment of the amount of the bail
in case he failed to appear when required by the court.
We think the liberal rule is more strongly supported by the decisions, tends more to serve
the ends of justice without doing any real wrong to persons who may sign recognizances, and
is more in keeping with our statutory provisions requiring only a substantial compliance with
the form for recognizances, which directs only a general designation of the offense, and
the section authorizing disregard of errors which do not prejudice.
which directs only a general designation of the offense, and the section authorizing disregard
of errors which do not prejudice. The recital in the recognizance that an indictment had been
found charging Wheaton with the crime of uttering and passing false paper leads to the
inference that he had been charged by the grand jury with uttering and passing false paper in
such a manner as to constitute a crime, and consequently with intent to defraud. The assertion
that he was indicted for crime, without further statement, would be about as definite as the
references in some of the recognizances which have been upheld, such as that the accused had
been charged with felony or misdemeanor.
We need not determine whether a recognizance would be good which failed to make any
reference to the offense such as the one which was enforced in the New York case, but as
held in Marmaduke v. People, 45 Colo. 357, 101 Pac. 337, supra, we believe it is sufficient if
any word is used by way of recital in the recognizance which is commonly employed to
designate the particular criminal offense. The views we have expressed are in harmony with
the liberal doctrine in regard to the recital in recognizances heretofore announced in State v.
Birchim, 9 Nev. 99, and State v. Murphy, 23 Nev. 398.
The judgment is reversed, and the district court is directed to overrule the demurrers to the
complaint and allow the defendants to answer if they desire.
____________
32 Nev. 342, 342 (1910) Collins v. Goodwin
[No. 1853]
KATHERYN A. COLLINS, Respondent, v.
NAT C. GOODWIN & CO., INCORPORATED, Appellant.
1. New TrialStatementSettlement and Authentication.
The civil practice act (Comp. Laws, 3292), sec. 197, provides that a party preparing the statement on
motion for new trial shall serve the same on the adverse party who may propose amendments thereto, and
shall within five days after the service on him of the statement serve the same with the statement on the
moving party, who shall within five days give notice to the adverse party if he declines admitting the
amendments, or they shall be deemed accepted. At any time thereafter either party may have the statement
settled by the judge or referee on two days' notice. When the statement is agreed to, it shall be accompanied
by the certificate of the parties or their attorney that the same has been agreed on. When settled by the
judge or referee it shall be accompanied by his certificate, etc. Held, that though, where no objection to a
proposed amendment is made within the time specified, the amendment is deemed to have been accepted
by the adverse party, and the statement is in effect agreed on by the parties, the same should be allowed and
certified before being used on the motion.
2. New TrialStatementWaiver of Settlement.
Where the parties submit a motion for a new trial on the statement as agreed on, they waive the objection
that the statement was not properly allowed and certified.
3. Appeal and ErrorDelay in Filing Transcript.
Where the transcript on appeal is not filed within the time prescribed by Supreme Court Rule 3, the
appeal will be dismissed.
Action by Katheryn A. Collins against the Nat. C. Goodwin and Company, Incorporated.
Plaintiff had judgment, and defendant appeals. On motion to dismiss appeal. Motion
granted.
Dodge & Barry, for Appellant.
Glynn & Painter, for Respondent.
This is a motion under the provisions of rule 3 of this court to dismiss an appeal from an
order denying a motion for a new trial.
trial. The following facts appear from the papers on file in support of the motion: That on
July 25, 1908, judgment was entered in favor of the plaintiff for the sum of $1,625 damages.
That on July 31, 1908, notice of intention to move for a new trial was duly filed and served.
That on November 21, 1908, statement on motion for a new trial was filed and served. That
on December 29, 1908, proposed amendment to statement on motion for a new trial was filed
and served by plaintiff. That no written notice declining to accept said proposed amendment
was filed in said cause. That on January 5, 1909, plaintiff filed and served notice of motion to
settle statement on January 9, 1909. That no order of court appears of record relating to such
settlement. That on January 16, 1909, argument on motion for a new trial was set for hearing
on January 23, 1909. That on January 23, 1909, the following order was made and entered of
record in said cause: Defendant's motion for a new trial coming on regularly to be heard.
Dodge & Barry, appearing as attorneys for the defendants, and Lorrin Andrews, Esq.,
appearing as attorney for the plaintiff. The motion was argued by counsel for the respective
parties. Defendant offered in evidence all the files in said case, and statement on motion for a
new trial. Order admitted in evidence and considered as read. Ordered motion stand
submitted.' That on April 2, 1909 (in pursuance of certain prior orders not necessary to
quote), the following order was made and entered in the cause: Whereas it appearing to the
satisfaction of the court that the plaintiff has filed herein her consent to the judgment entered
herein being reduced to the sum of $625, the said consent being pursuant to an order of the
court heretofore made on the 30th day of March, 1909. It is therefore ordered that said
judgment be reduced to the sum of $625 and it is further ordered that the motion of the
defendant for a new trial, be and the same is hereby denied.' That on May 3, 1909, notice of
appeal from the order of April 2, 1909, denying motion for a new trial was filed and served,
and on the same date an undertaking on appeal in due form was filed.
It is the contention of counsel for the appellant that the motion to dismiss ought not to
prevail for the reason that the statement on motion for a new trial was never settled by the
trial court.
the trial court. This contention, under the facts disclosed, we think is without merit.
Section 197 of the civil practice act, relative to statements on motion for a new trial,
provides: The party preparing the statement * * * after having filed the same with the clerk,
and had such filing entered and endorsed, shall serve the same on the adverse party, on the
same day, who may propose amendments thereto, * * * and shall within five days after the
service on him of the statement, file his amendment with the clerk, and * * * shall on the
same day, serve the same, with the statement, on the moving party, who shall, within five
days thereafter, give written notice to the adverse party if he declines admitting the
amendments, or they shall be deemed accepted. At any time thereafter either party may have
the statement settled by the judge or referee upon two days' notice thereof to the other party. *
* * When the statement is agreed to it shall be accompanied with the certificate, either of the
parties themselves in fact or their attorney, that the same has been agreed upon, and is correct.
When settled by the judge or referee, it shall be accompanied with his certificate that the same
has been allowed by him and is correct. When no amendments have been filed, the statement
shall be accompanied with the certificate of the clerk of that fact. * * * The several periods of
time limited may be enlarged. * * * (Comp. Laws, 3292.)
The amendment offered by the plaintiff to the defendant's statement on motion for a new
trial is deemed to have been accepted by the defendant and, therefore, the statement, in effect,
agreed upon by the parties. There was then nothing more for the judge to settle than if no
amendment had been proposed. Where no amendments have been filed, the certificate of the
clerk to that effect is sufficient authentication. (Borden v. Bender, 16 Nev. 49; Tull v.
Anderson, 15 Nev. 426.) The statement should be certified to in some appropriate manner,
and it is irregular for the court to pass upon the motion in the absence of some such
certification. But if, as a matter of fact, it appears that the statement has been settled or agreed
upon to all intents and purposes, and counsel submit the motion to the court upon the
statement without question, as was done in this case, they will be deemed to have waived
the formality of certification.
the motion to the court upon the statement without question, as was done in this case, they
will be deemed to have waived the formality of certification. There has been no contention
that the ruling on the motion was inadvertently or improvidently made before the statement
was certified to, and no motion to vacate the order on that ground was made. (Crosby v.
North Bonanza M. Co., 23 Nev. 70, 75.) As counsel cannot now be heard to question the
want of certification to the statement on motion for a new trial, it follows that no valid reason
appears for appellant's delay in sending the statement or transcript on appeal to this court.
The case at bar may be distinguished from the case of Young v. Updike, 29 Nev. 303,
relied on by counsel for appellant, not only because of the fact that different statutory
provisions were involved, but for the further reason that in the latter case no question of
waiver was involved.
The motion to dismiss the appeal is granted.
____________
32 Nev. 346, 346 (1910) Knight v. District Court
[No. 1893]
BART KNIGHT, Relator in Petition and Application for Writ of Prohibition, v. THE
DISTRICT COURT OF THE SEVENTH JUDICIAL DISTRICT OF THE STATE OF
NEVADA, in and for the County of Esmeralda, and HON. PETER J. SOMERS, Judge of
said Court, Respondent.
1. Indictment and InformationPreliminary ExaminationBar.
Under Comp. Laws, 4167, providing that the grand jury has power to inquire into all public offenses
committed within the jurisdiction of the court, and to present them either by presentment or indictment, the
grand jury is authorized to indict a person accused of crime, notwithstanding the case may be pending on
preliminary examination before a justice of the peace.
2. ProhibitionJurisdictionOther Remedy.
Where the indictment is regular on its face, and the trial court has jurisdiction of the person named in the
indictment, the supreme court will not intervene by writ of prohibition; it appearing that relator had another
remedy.
Original proceeding. Application for writ of prohibition by Bart Knight against the District
Court of the Seventh Judicial District, and another. Writ denied.
J. Emmitt Walsh and Frederick W. Hankey, for Petitioner:
I. Section 4167 of the Compiled Laws provides the statutory power of the grand jury. The
constitution of the State of Nevada, section 1 of article 6, and section 8, provide that justices
of the peace are constitutional officers, and that the legislature shall fix by law their powers,
duties and responsibilities, and that justice courts shall have such criminal jurisdiction as
may be prescribed by law, with certain limitations following. Section 4072 of the Compiled
Laws makes a justice of the peace a magistrate, and section 4073, et seq., provides the duties
and powers of magistrates upon criminal complaint. We take it that it will be conceded that if
upon the filing of a complaint before a magistrate there inure to the person charged any
substantial rights, to which he eo instanti becomes entitled, any action upon the part of the
magistrate, or of any prosecutor, which will, against his consent, deprive him of any of those
substantial rights, is illegal.
II. That a plea in abatement was the proper method of raising the question in the court
below, see 12 Cyc. p. 355, and that prohibition is the proper and only remedy here, see Bell v.
District Court, 28 Nev. 280; Hughes v. Parker, 69 L. R. A. 271.
III. Under the practice, the intent to which the prohibition of this court may and should
extend is, of course, optional with the court. The petitioner had prayed only for that, which he
submits upon the facts and the law he is entitled to. Abundant reasons and abstract and
concrete justice demand it. The granting of this relief by this tribunal in no wise affects the
right of the state or its power to punish or to try any person accused of the crime. The way of
the state is as clear and as open as it was at the time they abandoned the straight path of the
law placed before them, and all your petitioner asks is that they get back into the straight path.
R. C. Stoddard, Attorney-General, for Respondent, by demurrer:
Now comes the respondent above named and demurs to relator's petition on file herein
upon the following grounds, to wit:
I. That said petition does not state facts sufficient to constitute a cause of action against
said respondent or to entitle him to the relief therein prayed for, in this: (a) That it does not
appear from said petition that relator is without a plain, speedy and adequate remedy at law.
(b) That it does not appear from said petition that the respondent has exceeded or threatened
to exceed its jurisdiction or is without rightful jurisdiction in the premises.
This is an application for a peremptory writ of prohibition against the District Court of the
Seventh Judicial District of the State of Nevada, in and for Esmeralda County, and Hon. Peter
J. Somers, judge of said court, to restrain and prohibit the said respondent from proceeding or
taking any further action upon certain indictments pending in said court against the relator,
Bart Knight.
It appears from the record that the relator, Bart Knight, together with Jake Hildebrandt, M.
J. Smith, and Martin Miller of Goldfield, Nevada, were indicted by the grand jury of said
County of Esmeralda for the crime of grand larceny. That prior to said indictments, on the
14th day of February 1910, six complaints were laid before Arthur E. Barnes, justice of the
peace in and for Goldfield Township, County of Esmeralda, State of Nevada, charging said
above-named parties with the crime of grand larceny. That warrants of arrest were issued for
said defendants, and each of them was arrested and taken into custody by virtue of said
warrants of arrest, and on the 15th day of February, 1910, said defendants and each of them
were arraigned before said justice of the peace at his court-room in Goldfield, and upon
motion of the district attorney of Esmeralda County the hearing of said complaints against
said defendants was set for the 18th day of February, 1910, at the court-room of said
magistrate. That on the 18th day of February, 1910, the relator and his codefendants above
named appeared in said magistrate's court ready for, and demanding, hearings and
examinations upon the said complaints, and that, after being arraigned, the district attorney
refused any hearings or examinations upon said complaints and charges, and submitted
charges to the grand jury of Esmeralda County, which was then in session, which said grand
jury, on the 24th day of February, 1910, found and returned against said relator and his
codefendants true indictments for grand larceny. Thereupon, on the 24th day of February,
1910, the relator was arrested upon a bench warrant issued out of the District Court of the
Seventh Judicial District, brought before Hon. Peter J. Somers, judge of said court, and was
directed by said court to remain in custody unless said relator entered into a bond, as required
by law, in the sum of $3,000, which said bond was duly given, and relator, upon being called
before the bar of said court to plead to said indictments, filed a plea in abatement to the said
indictments, to which a demurrer was interposed by the district attorney of said county, and
sustained by the judge of said court. That relator, upon being called to further plead to said
indictments, stood mute. That the judge of said court directed and ordered a plea of not guilty
to be entered against said relator, Bart Knight, and relator maintains and alleges that,
unless this writ of prohibition issues, he will be forced to trial upon said indictments by
said court.
a plea of not guilty to be entered against said relator, Bart Knight, and relator maintains and
alleges that, unless this writ of prohibition issues, he will be forced to trial upon said
indictments by said court.
The contentions of petitioner, as raised by his plea in abatement, and which are interposed
in this court in justification of his right to the issuance of the writ prayed for, are as follows:
First, that, complaints having been filed before a magistrate, the grand jury was without
jurisdiction to investigate the matters involved in those complaints during the pendency, and
before the determination of the issue of probable cause before the magistrate, and that the
procedure in the State of Nevada, while permitting the presentation of a charge of crime
before a grand jury, contemplates and requires that, when an investigation before a magistrate
is initiated, it must be concluded, and until it is concluded the grand jury cannot consider it;
second, that in the case presented by the petitioner the plea in abatement in the district court
discloses that the action of the district attorney and the justice of the peace in not proceeding
with the matter vitiates the indictments found by the grand jury, for the reason that they are
irregular, and not found in accordance with law.
After a very careful examination of the law cited by counsel in behalf of petitioner, in
support of his contentions, and a due consideration of the very able and eloquent appeal in
behalf of his client, we are of the opinion that his contentions are not sufficient to warrant this
court in intervening in this proceeding by the issuance of a writ of prohibition. While we
agree with counsel for petitioner that a person accused of and arrested for crime is entitled to
a prompt examination, and that his substantial rights must be protected at all times, and that
his examination should not be unnecessarily delayed to suit the accomodation or convenience
of the officers of the law, still we are of the opinion that the grand jury are authorized, under
the law in this state, to indict a person accused of crime, notwithstanding that the case may be
pending on preliminary examination before a justice of the peace. (Comp. Laws, 4167.) The
law is well established that the grand jury may investigate and indict one charged with a
felony, although he has been arrested and arraigned for a preliminary examination, and is
not bound to await the action of the examining court, for the reason that the action of the
examining court is no bar to the right of the grand jury to inquire into the case and indict
the accused, even though he has been discharged on the preliminary examination.
he has been arrested and arraigned for a preliminary examination, and is not bound to await
the action of the examining court, for the reason that the action of the examining court is no
bar to the right of the grand jury to inquire into the case and indict the accused, even though
he has been discharged on the preliminary examination.
The grand jury has unquestioned power to investigate any criminal offense and find an
indictment without any previous preliminary examination of the accused; and, even when a
preliminary examination of an accused person is pending, the grand jury has full power to
make inquiry and find an indictment against such person, notwithstanding such preliminary
examination. No matter what the action of the justice of the peace may be in his
determination of the preliminary examination, his action cannot relieve the grand jury from
their bounden duty, or deprive them of their right to investigate and act upon the charges
against the accused, and under no circumstances can an examination before a justice of the
peace divest the grand jury of their power to investigate the charge against the accused. (17
Am. & Eng. Ency. Laws, 1280; State v. Whalen, 148 Mo. 286, 49 S. W. 989; State v.
Gieseke, 209 No. 331, 108 S. W. 525; State v. Bringer, 42 La. Ann. 1091, 8 South. 279, 10 L.
R. A. 137; State v. Jeffries, 210 Mo. 302, 109 S. W. 615; People v. Horton, 4 Parker, Cr. R.
(N. Y.) 212; People v. Hafferman, 5 Parker, Cr. R. (N. Y.) 393.)
The indictment being regular on its face, and the district court having jurisdiction of the
person named in the indictment, this court will not intervene by writ of prohibition, as relator
appears to have another remedy, even conceding any errors were committed. However,
believing as we do, that the plea in abatement was properly overruled, it is not necessary to
further consider any of the other points urged in the petition. (Ex Parte Easton, 95 U. S. 77,
24 L. Ed. 373; Fraser v. Freelon, 53 Cal. 644; Walcott v. Wells, 21 Nev. 47, 9 L. R. A. 59,
and notes p. 60, 37 Am. St. Rep. 478; 16 Ency. Pl. & Pr., p. 1128; Bell v. District Court, 28
Nev. 280, 1 L. R. A. 843, 113 Am. St. Rep. 854.)
The application for the writ is denied.
____________
32 Nev. 351, 351 (1910) Judell Co. v. Goldfield Realty Co.
[No. 1869]
H. L. JUDELL COMPANY, Respondent, v.
GOLDFIELD REALTY COMPANY, Appellant.
1. CorporationsPowersHotel.
A corporation incorporated to do a general hotel business has authority to take over the business of one
operating a caf in a hotel building owned by the corporation, together with the bar and cigar stand in
connection therewith, for the power to do a general hotel business necessarily includes the authority to buy
and sell refreshments, cigars, wines, etc.; a hotel being defined as a place for the accommodation of
travelers with food and lodging.
2. CorporationsContractsLiability.
Where a corporation which took over the business of another, who was indebted to third persons, held out
its secretary and general manager as possessing authority to make contracts with the third persons in
settlement of their claims, and the corporation accepted the benefits of agreements entered into by the
secretary and manager, a third person could enforce a note executed in the name of the corporation by the
secretary and manager in payment of his claim.
Action by H. L. Judell and another, copartners, doing business under the firm name of the
H. L. Judell Company, against the Goldfield Realty Company. From a judgment for plaintiff,
defendant appeals. Affirmed.
Pyne & Douglass, for Appellant:
I. That witnesses on the part of plaintiff allege that J. F. Douglass, who had gone to San
Francisco to investigate the accounts of the Goldfield Catering and Caf Company to see if
the representations made by the caf company were correct, telegraphed that the
representations were correct and to turn over the accounts. This telegram was sent to Harry
Cole and received by Harry Cole, according to the said testimony. J. F. Douglass testified that
he found that the representations made by the Goldfield Catering and Caf Company were not
correct, and that he telegraphed Mr. Cole to turn over the business on account of an
agreement or arrangement made between J. F. Douglass and Mr. Cole whereby the business
would be taken over by the Goldfield Realty Company, whatever the event of the
investigation was. Mr. Douglass upon returning home refused to sign the agreement
known as plaintiff's exhibit No.
would be taken over by the Goldfield Realty Company, whatever the event of the
investigation was. Mr. Douglass upon returning home refused to sign the agreement known as
plaintiff's exhibit No. 3, and it was never signed or entered into either by the Goldfield Realty
Company or by J. F. Douglas for the Goldfield Realty Company. That while J. F. Douglass
was in San Francisco, he, on the second day of March, 1908, signed the paper known as
plaintiff's exhibit No. 6, but without authority from the Goldfield Realty Company, and by
that paper agreed to assume the indebtedness of the account of Judell & Company. That
immediately upon Mr. Douglass's return to Goldfield, he notified T. L. Foley, the attorney for
Judell & Company, who had the claim of Judell & Company in Goldfield, Nevada, for
collection, that the Goldfield Realty Company refused to pay the said account of Judell &
Company and refused to pay the note signed by him in San Francisco, being plaintiff's exhibit
No. 6, for the reason that the goods and wares which the Goldfield Catering and Caf
Company said they had were not in the possession of the Goldfield Catering and Caf
Company and that therefore there was no consideration.
II. A principal is not bound by the unauthorized acts of its agents, but is only bound by
the acts of an agent acting within the scope of its authority. (Lonkey & Smith v. Succor Mill
Co., 10 Nev. 17; 23 Nev. 491, 506; 21 Nev. 42.) It was not shown that Douglass had any
authority or that he was ever authorized to sign any note or obligation to pay the indebtedness
of Judell & Company, nor was it shown that it was within the scope of his employment to
guarantee the debts of the Goldfield Catering and Caf Company. Douglass positively
testifies that he was never authorized by the Goldfield Realty Company to enter into the
agreement with Judell & Company.
III. A corporation cannot be held responsible for a contract of its officers or agents unless
it affirmatively appears that such officers or agents were authorized to make the contract or
that the corporation received the benefit derived from the contract. (Edwards v. Water
Company, 21 Nev. 469.) The evidence in this case shows that no consideration nor benefit
was derived by the Goldfield Realty Company by reason of the contract or note signed by J.
F. Douglass.
contract or note signed by J. F. Douglass. That the only evidence that bears upon the question
of consideration is that of Groppengiesser, wherein he states that the Goldfield Catering and
Caf Company turned over its business to the Goldfield Realty Company.
IV. The court erred in not granting defendant's motion for nonsuit when the plaintiff rested
his case, for the reason that plaintiff had not proven that the note or agreement upon which
plaintiff based his cause of action had been executed by the Goldfield Realty Company and
that plaintiff had not proven that J. F. Douglass had the authority to execute the note or
agreement for the Goldfield Realty Company, and that plaintiff did not prove that the
Goldfield Realty Company had received any benefit or compensation by reason of the signing
of the said note or agreement.
V. That the court erred in making its finding of fact No. 7 in which it found that J. F.
Douglas was duly authorized to bind the defendant in making the said agreement, when no
evidence has been introduced in the case showing that J. F. Douglass had ever been
authorized to make the said agreement for the Goldfield Realty Company. The supreme court
of this state in the case of Edwards v. Water Company, 21 Nev. 469, lays down the rule that a
corporation cannot be held responsible for a contract by its officers or agents unless it
affirmatively appears that such officers or agents were authorized to make the contract. It was
the duty of the plaintiff to prove that J. F. Douglass had been authorized to execute the
contract or note set out in the complaint, before judgment could be rendered against the
defendant. The burden of proof was upon the plaintiff, as the agreement was not under seal
and was not executed by the president and secretary of the corporation.
John F. Kunz, for Respondents.
The plaintiff in this action brought suit to obtain a judgment against defendant in the sum
of $961.15, with interest and costs, on account of an indebtedness due plaintiff for goods,
wares, and merchandise sold and delivered by plaintiff to the Goldfield Catering and Caf
Company, a California corporation, which indebtedness the plaintiff alleges defendant
assumed and agreed to pay.
goods, wares, and merchandise sold and delivered by plaintiff to the Goldfield Catering and
Caf Company, a California corporation, which indebtedness the plaintiff alleges defendant
assumed and agreed to pay. The defendant company interposes a defense to the complaint
that its manager and secretary was not authorized to bind the company in the execution of
said promissory note, evidencing the amount of the indebtedness in dispute, a determination
of which issue is determinative of this appeal.
An examination of the record on appeal discloses that the Goldfield Realty Company is a
corporation organized under the laws of the State of Nevada, and during the times mentioned
was conducting the Goldfield Hotel at Goldfield, Nevada. Among the various objections for
which this corporation was formed, as disclosed by its articles of incorporation, we find: (a)
To purchase, sell and own real estate, to erect buildings thereon, and to engage in a general
hotel business. (b) To engage in the business of buying and selling merchandise, wines,
liquors and cigars either at wholesale or retail. (c) * * * (d) To engage in a general
commission business, and to do all and anything necessary, suitable or convenient for the
accomplishment of any of the purposes or attainment of any of the objects hereinbefore
enumerated. The transcript further discloses that the Goldfield Catering and Caf Company
is a California corporation, and owned, operated, and conducted the caf and restaurant in the
Goldfield Hotel, as well as the bar and cigar stand in connection therewith; that in January,
1908, the Goldfield Catering and Caf Company was indebted to various creditors, not only
for furniture and fixtures, but also for goods, wares, and merchandise sold to it in conducting
the said branches of business, and for part of which said indebtedness notes had been given to
some of its creditors and indorsed by the appellant, Goldfield Realty Company. To secure the
Goldfield Realty Company for indorsing these notes of indebtedness, a mortgage was
executed by the Goldfield Catering and Caf Company on January 17, 1908, to the Goldfield
Realty Company, under the terms of which, however, the Goldfield Catering and Caf
Company was permitted to remain in possession of all of the personal property so
mortgaged.
Company was permitted to remain in possession of all of the personal property so mortgaged.
Pursuant to certain negotiation between the officers and agents of the Goldfield Realty
Company and the Goldfield Catering and Caf Company, the following resolution, prepared
and drawn by J. F. Douglass, general manager and secretary of the Goldfield Realty
Company, was passed on February 19, 1908, by the board of directors of the Goldfield
Catering and Caf Company:
Whereas, the Goldfield Catering and Caf Company is indebted to various merchants of
Goldfield, San Francisco, Oakland and other places in large sums of money, aggregating
many thousands of dollars, for the equipment and supplies used in the kitchen, dining-room
and bar room in the Goldfield Hotel; and whereas, owing to prevailing conditions it is unable
to secure the money for payment of these bills either through profits of its caf and bar, or by
any other means; and whereas, the Goldfield Realty Company is desirous of purchasing said
equipment and stock from the persons and concerns from whom the same was secured,
providing the Goldfield Catering and Caf Company releases all its claim, both in law and in
equity, in and to said equipment and stock to said persons and concerns from whom the same
was secured. Now, therefore, be it resolved, that in consideration of the surrender of all
promissory notes given by this company in payment for said equipment and stock, and the
release of this company from all indebtedness on account of said equipment and stock where
same is not secured by notes or otherwise by its several creditors, this company will surrender
all its right and claim of whatsoever nature in and to said equipment and stock of goods to the
persons from whom same was secured, and that this resolution be effective as to any
individual instance of indebtedness as soon as this company is released from same. (Signed)
O. Groppengiesser. Harry Cole, Acting Secretary. Approved: Harry Cole, Arthur Starkey, B.
J. Sears.
Pursuant to this resolution, the business and assets of the Goldfield Catering and Caf
Company in the Goldfield Hotel were turned over to the appellant, which included all of its
furniture, stock, etc., in bar, kitchen, and dining-room, which the appellant accepted and
received.
were turned over to the appellant, which included all of its furniture, stock, etc., in bar,
kitchen, and dining-room, which the appellant accepted and received. Afterwards the
Goldfield Realty Company leased the said business formerly owned and conducted by the
Goldfield Catering and Caf Company to the individual stockholders or part of them of the
said Goldfield Catering and Caf Company. In conformity with the understanding evidenced
by the foregoing resolution, J. F. Douglass, the secretary and manager of the defendant
company, while in San Francisco arranging the indebtedness with the creditors of the catering
company, called upon the plaintiff, and proposed, executed, and delivered the note in dispute
in behalf of the defendant company, and represented to the plaintiff that he was fully
authorized to make the arrangements for an assumption of the indebtedness of the Goldfield
Catering and Caf Company for the defendant Goldfield Realty Company, and recited in the
note given that he was duly authorized to make said note as evidenced by the following
indenture:
[Letterhead of Hotel St. Francis.] San Francisco, Cal., March 2nd, 1908. H. L. Judell &
Company, San Francisco, Cal.Gentlemen: For and in consideration of the substitution of
the Goldfield Realty Company, as your debtor in the sum of nine hundred and fifty dollars
($950.00), subject to correction, in the place of the Goldfield Catering and Caf Company,
and the further consideration of your extending the time for the payment of the said amount
as hereinafter provided, we, the undersigned, Goldfield Realty Company, by J. F. Douglass,
our secretary, first duly authorized, hereby agree to pay the said amount above named, at the
times and in the manner following, to wit: One-half of said amount to be paid April first,
1908; and one-half of said amount to be paid May first, 1908. Respectfully, Goldfield Realty
Company, By J. F. Douglass, Secretary.
It appears from the evidence that after the Goldfield Realty Company had taken over the
furniture and fixtures of the Goldfield Catering and Caf Company, it retained possession of
said property and was considered publicly to be the owner thereof. It publicly conducted the
caf and bar, bought supplies for both, paid for labor, and retained the benefits and receipts
from the same, and paid a part of the said unsecured debts of the Goldfield Catering and
Caf Company as well as indebtedness for which notes had been given.
receipts from the same, and paid a part of the said unsecured debts of the Goldfield Catering
and Caf Company as well as indebtedness for which notes had been given.
The evidence shows that J. F. Douglass was the general manager and secretary, and so
represented himself, of the Goldfield Realty Company, and that he conducted the business
without consultation with the board of directors; that he was held out by the company as the
man having absolute control of the business, and the directors admitted at the time of the trial
that J. F. Douglass was the sole manager to look after all of the business of the company
within the scope of its powers as defined by its articles of incorporation, and that J. F.
Douglass was in the entire charge of all of its business.
It appears that the Goldfield Catering and Caf Company delivered possession of
everything contained in the bar, kitchen, and dining-room to the Goldfield Realty Company,
and that thereafter the realty company conducted the business by leasing the same. By
acceptance of the assets of the catering and caf company the Goldfield Realty Company
obligated itself to pay the debt owing to the respondent herein, and the catering and caf
company turned over to the realty company the bar and grill upon the telegraphic instructions
of J. F. Douglass, with whom the understanding was had. While the witness Douglass
testified that he was not specially authorized by the directors of the Goldfield Realty
Company to enter into the arrangement wherein this debt was assumed, yet the evidence
discloses that Douglass had been authorized by the defendant company as its sole
representative to manage all contracts and expenditures for material necessary for the
construction of the Goldfield Hotel, a building reputed to have cost from $150,000 to
$200,000, and the evidence further discloses that Mr. Douglass had full charge of all the
business affairs of the company, and had been permitted to transact all of its business, and
was so held out to the public at Goldfield and elsewhere. Similar notes given under similar
circumstances to other creditors of the catering and caf company by J. F. Douglass in behalf
of the realty company were paid by the realty company without objection from the board of
directors.
In addition to all this the company received and retained the property of the catering and
caf company, and in view of the representations made by Mr. Douglass, the general manager
and secretary of the realty company, that he had the authority to execute the promissory note
in question, and informed the respondent that he was making similar arrangements with other
creditors of the catering and caf company to assume their indebtedness, which was assumed
and afterwards paid by the realty company, and the fact that the said Douglass was held out in
the community as the sole representative of the realty company, which said company accepted
the benefits of the agreement entered into by its general manager and secretary, and where it
is clear the realty company had the authority under its articles of incorporation, to purchase
the property of the catering company for the benefit of the hotel owned by the realty
company, we do not think it can be said, under these circumstances, that this corporation is
not bound by the act of its general manager and secretary.
We believe that the Goldfield Realty Company had ample authority, under the scope of its
enumerated powers in its articles of incorporation, to take over the business of the Goldfield
Catering and Caf Company, and its general manager was vested with ample authority to
make this contract for and on behalf of the realty company with the catering and caf
company. The Goldfield Realty Company was incorporated to do a general hotel business,
which necessarily included the authority to buy and sell merchandise, wines, liquors, and
cigars, and such other materials as go to stock a hotel, caf or restaurant. The word hotel,
which is synonymous with the word inn, in defined as a place for the accommodation of
travelers with food and lodging, and necessarily implies the right to purchase the business of
the catering and caf company in question, especially where, as in this case, said caf and bar
were in the lobby of the Goldfield Hotel, the main property of the realty company. (20 Cyc.
1070; Pinkerton v. Woodward, 33 Cal. 557, 91 Am. Dec. 657.)
After a careful review of the evidence in this case, we are of the opinion that it is
conclusively shown that Mr. Douglass, as general manager and secretary of the Goldfield
Realty Company, was vested with complete authority by the board of directors of the said
realty company, in his capacity as general manager and secretary of said company, to
execute the said promissory note in dispute for said company under the circumstances
disclosed.
pany, was vested with complete authority by the board of directors of the said realty
company, in his capacity as general manager and secretary of said company, to execute the
said promissory note in dispute for said company under the circumstances disclosed. Said
secretary, J. F. Douglass, having been held out by said company to be its general manager,
and having been shown to have done transactions of a similar nature in behalf of the realty
company, and all of his actions accepted and none repudiated by the board of directors,
except this especial act of Mr. Douglass, and that the said realty company having taken over
the property of the catering and caf company, and having received and retained the benefits
of the agreement entered into by its representative with the said catering and caf company,
and the said general manager and secretary of the realty company having represented to
respondent herein that he was authorized to bind the realty company, as it is shown he was
authorized to do with other creditors of the catering and caf company, we believe the
respondent herein had the right, under the circumstances, to accept as it did the
representations made in good faith, and that the Goldfield Realty Company is in no position
to avoid the responsibility of the act of its general manager in this transaction, and that the
judgment of the lower court should be affirmed. (Western Homestead Co. v. First National
Bank, 47 Pac. 721; Colorado Springs Co. v. Am. Pub. Co., 97 Fed. 843, 38 C. C. A. 433;
Greig v. Riordan, 99 Cal. 316, 33 Pac. 913; Union Gold M. Co. v. Rocky Mt. Nat. Bank, 2
Colo. 565, affirmed 96 U. S. 640, 24 L. Ed. 648; Brown v. Crown Gold M. Co., 150 Cal. 376,
89 Pac. 88; Allen v. Citizens' Steam Nav. Co., 22 Cal. 28; Extension G. M. Co. v. Skinner, 28
Colo. 237, 64 Pac. 198; Meyer v. V. & T. R. Co., 16 Nev. 341; Bergtholdt v. Porter Co., 114
Cal. 681, 46 Pac. 738; Whitaker v. Kilroy, 70 Mich. 635, 38 N. W. 606; Moss v. Averell, 10
N. Y. 449; Siebe v. Joshua Machine Works, 86 Cal. 390, 25 Pac. 14; Shaver v. Bear River
Co., 10 Cal. 396; Carey v. Phil. Petroleum Co., 33 Cal. 694; Gribble v. Columbus Brewing
Co., 100 Cal. 67, 34 Pac. 527; Morawetz on Corp., secs. 630 and 633; Kelsey v. Bank, 69 Pa.
426; Murray v. Lumber Co., 143 Mass. 250, 9 N. E. 634; 1 Beach, Corp. Dec. 195; Sherman
v. Fitch, 98 Mass. 59; Edwards v. Carson Water Co.,
v. Carson Water Co., 21 Nev. 469; Bean v. Pioneer M. Co., 66 Cal. 451, 6 Pac. 86, 56 Am.
Rep. 106; Main v. Casserly, 67 Cal. 127, 7 Pac. 426.)
It is so ordered.
___________
32 Nev. 360, 360 (1910) Gibson v. Hjul
[No. 1858]
ANGUS R. GIBSON and W. C. STEWART, Plaintiffs, v. P. H. HJUL, Administrator of the
Estate of John Pardy, Deceased, and J. H. BYERLY, Respondents. (HENRY K. MITCHELL,
Intervener and Appellant.)
1. PartiesImproper InterventionObjections.
Even though intervener did not have such an interest in the result of the suit between plaintiffs and
defendants as would entitle him to intervene, yet he having been permitted to do so, and, after plaintiffs
dismissed their complaint, the case having gone to trial between intervener and defendants on the issues
raised by their pleadings, intervener having thus virtually become the plaintiff, and defendants at the time
plaintiffs dismissed their complaint, not having asked to have the entire proceedings dismissed, but,
without further objection, proceeded to trial on the issues raised by their answer to intervener's complaint,
the court had jurisdiction of the parties as well as of the subject-matter.
2. Appeal and ErrorHarmless Error.
Rejection of evidence to show acts of ownership by intervener's grantor was harmless; defendants not
questioning the ownership of such grantor to a time six years after such acts.
3. TrialAdmission of EvidenceOrder of AdmissionDiscretion.
The court has discretion to admit the evidence out of the regular order subject to the later supplying of
other evidence which will establish its relevancy or materiality.
4. Appeal and ErrorHarmless ErrorExclusion of Evidence.
Even if it was permissible, on cross-examination of one who had testified that he and his partner had
given up their case, to ask him how or why they had given it up, exclusion of the testimony, immaterial on
any issue, was harmless.
5. Mines and MineralsLocationNoticeRecording.
A notice of location of a mining claim is not required by Comp. Laws, 208, et seq., to be recorded.
6. Mines and MineralsNotice of LocationAdmission in Evidence.
A notice of location of a mining claim, while not answering the requirements of Comp. Laws, 210, for a
certificate of location, and so not evidence of an act of location, is admissible in support of a claim of
adverse possession, and to explain testimony.
7. Mines and MineralsCertificate of LocationRecord.
Filing of a defective certificate of a location of a mining claim, or failure to file any certificate, does not
invalidate the claim.
32 Nev. 360, 361 (1910) Gibson v. Hjul
8. Mines and MineralsNotice of Location.
Notice of location of a mining claim is not required to be strictly exact, and is not controlling; courses
and distances given therein yielding to monuments erected on the ground.
9. Mines and MineralsDiscovery Shaft.
Though ore was not discovered in a so-called discovery shaft on a mining claim, it is enough that the
locator subsequently found valuable ore in other workings on the claim, and where ore was unquestionably
discovered did work more than the equivalent of that required for a discovery shaft.
10. Mines and MineralsRights as Between Different LocatorsEvidence.
Evidence, in a suit for mining lands, the parties claiming under locations, and defendants also claiming
under adverse possession, held sufficient to sustain a judgment for defendants.
11. Mines and MineralsLocation of ClaimEnd Lines.
That the end lines of a mining claim are not parallel does not invalidate the location, but only affects
extralateral rights.
Appeal from the District Court of the Third Judicial District, of the State of Nevada,
Eureka County; Peter Breen, Judge.
Action by Angus R. Gibson and another against P. H. Hjul, administrator of John Pardy,
deceased, and another. Henry K. Mitchell intervened, and, from a judgment for defendant
Pardy, appeals. Affirmed.
Henry K. Mitchell, in pro. per., for Appellant:
I. The court erred in admitting as evidence defendant's notice of location. Said notices are
void, because each notice omits the fourth and fifth subdivisions of section 210 of the
Compiled Laws. Section 210 was in full force and effect at the time of the alleged location by
defendant Pardy. The subdivisions required by the said statute and omitted in the notices are
as follows: FourthThe number of linear feet claimed in length along the course of the
vein, each way from the point of discovery, with a width on each side of the center of the
vein, and the general course of the lode or vein as near as may be. FifthThe dimensions and
location of the discovery shaft or the equivalent sunk upon the claim. Said section 210
further provides: Any record of the location of a lode mining claim which shall not contain
all the requirements named in the section shall be void."
32 Nev. 360, 362 (1910) Gibson v. Hjul
ments named in the section shall be void. The notices are absolutely dumb as to each of the
above requirements. In such case the legislature said the location shall be void, and if void the
court below erred in their admission as evidence. (Am. & Eng. Ency. Law, vol. 20, p. 720,
and note 5.)
II. There was no ore discovered by the defendant in his alleged discovery shaft at the time
of, or prior or subsequent to, the pretended location. Discovery is the first step in the
location of the claim, or, more exactly, it is the precedent requisite to the location.
Discovery and appropriation are the sources of title to mining claims, and development by
working is the condition of their continued possession. The provision of the Revised
Statutes, 2320, is No location of a mining claim shall be made until the discovery of the vein
or lode within the claim. No right can be acquired by location before discovery. (Bar. &
Adams, p. 14; Overman S. M. Co. v. Corcoran, 15 Nev. 147.) The act of Congress will
permit a discovery at any place within the limits of the claim, but the laws of the states and
territories may require something else to perfect a discovery. In many states, accordingly, the
discoverer of ore to locate his claim must sink a discovery shaft of a certain depth, or such
tunnel, adit or open cut as is defined to be the equivalent of such shaft. (Bar. & Adams, p.
216.) Section 209 of the Compiled Laws requires that the locator shall sink a discovery shaft
upon the claim to the depth of at least ten feet from the lowest part of the rim of such shaft at
the surface, or deeper if necessary, to show by such work a lode or deposit of mineral in
place. (Cheerman v. Shreve, 40 Fed. 787; McLaughlin v. Thompson, 29 Pac. 816; Burke v.
McDonald, 33 Pac. 49; Foote v. Nat. M. Co., 2 Mont. 402; Wade Am. M. Laws, p. 44.)
Discovery being the first prerequisite to a valid location, it is expedient to refer to all the
testimony of the several witnesses for defendant and intervener to show that no discovery was
madethat no vein or lode or rock in place carrying mineral of any value was developed in
the discovery shaft.
III. The end lines of defendant's location are not parallel and cannot be made parallel.
Section 2320 of the Revised Statutes requires that the end lines shall be parallel; this is
mandatory.
32 Nev. 360, 363 (1910) Gibson v. Hjul
mandatory. The requirement relates to the original location. Any person locating must have
parallel end lines, whether his location conflicts with other claims or not. In a legal
controversy the court may give him an angular piece of ground, provided the same is, within
his original location, a parallellogram, but he cannot locate originally a triangular piece of
ground as such. (Bar. & Adams, p. 441; Eureka Con. v. Richmond, 4 Sawy. 302; Iron S. M.
Co. v. Elgin Co., given in Bar. & Adams, p. 453.)
Cheney, Massey & Price, and C. L. Harwood, for Respondent:
I. The court below was without jurisdiction to grant the petition and permit the
intervention. The appellant has no standing in this court. Henry K. Mitchell, as attorney for
the plaintiffs, began this suit in 1906. February 4, 1908, he filed a so-called petition of
intervention, alleging himself to be the owner of the Sam Tilden mine, and that the
defendants and the plaintiffs (Mitchell's clients) claimed some portion of said Sam Tilden. He
was permitted to intervene by an ex parte order made the same day; his bill of intervention
was also filed the same day, and Mr. Mitchell admitted service upon himself, as attorney for
the plaintiffs, of his bill of intervention. This pleading is in substance a complaint in
ejectment and alleges title and right of possession in himself. The action of the court was
objected to and the sufficiency of the intervention was challenged by the defendant, but the
court on motion struck out the objection and the demurrer thereto. The right to intervene is
governed by section 599 of the practice act which was adopted verbatim from the California
statute. The intervener, Henry K. Mitchell, had no such interest in the matter in litigation that
he would either gain or lose by the direct legal operation and effect of the judgment which
might be rendered in the suit between the original parties.
II. The notice, the exclusion of which the intervener complains of, in the second
specification of error, included a number of mining claims, among others the Sam Tilden,
and, so far as any issues in this case were or might be affected by it, it was merely a
self-serving declaration and could have no tendency to prove any of the issues in this case.
The fact that a man spreads upon the record a declaration that he is the owner of a mining
claim and intends in good faith to work it affords no reason for permitting him to offer
such a declaration in evidence.
32 Nev. 360, 364 (1910) Gibson v. Hjul
that a man spreads upon the record a declaration that he is the owner of a mining claim and
intends in good faith to work it affords no reason for permitting him to offer such a
declaration in evidence. If this were so, the door would be open to street-corner conversations
and hearsay testimony of every kind. The court was clearly correct in excluding the testimony
offered.
III. The question asked on cross-examination was not proper, for the reason that it was not
cross-examination of anything material which was brought out on the direct examination. The
most that could be said in support of the position of the appellant is that the trial court in its
discretion might permit the rule as to cross-examination to test the credibility of the witness
to be extended so far as to permit the question to be asked. The answer might have been, if it
had been permitted, that they abandoned the lease on the advice of their attorney, who
appeared for them originally in this action, because it had been decided by the general land
office and suggested in a decision of the Supreme Court of the United States that a deputy
United States mineral surveyor could not initiate a valid location of mining ground, and that
therefore they could relocate the Beehive, because Pardy was a United States deputy surveyor
at the time he made his location of it. At any rate, it appears that this was what was done, and
the Fannie was relocated on that ground by the witness and his partner, and the intervener as
their attorney; when it was decided the plaintiffs had no claim, and they frankly came into
court and so stated, the intervener was on hand with the Sam Tilden location. Several grounds
are urged as constituting error in the admission of respondent's notice of location of the
Beehive.
(a) The appellant's first ground of objection is based on variance on the proof from the
allegations of the answer in the first course stated in the notice of location and a like variance
in the last course. These differences or variances in allegata and probata are trifling and
immaterial. The intervener was not misled or surprised and does not even claim that he was.
Therefore, he has no cause of complaint. (Whitman v. Shiverick, 3 Nev. 288; McNair v.
Gilbert, 3 Wend. 344; Halleck v. Commercial Ins. Co., N. J. L.
32 Nev. 360, 365 (1910) Gibson v. Hjul
Halleck v. Commercial Ins. Co., N. J. L. 268; O'Neill v. Newman, 93 N. W. 1064; see, also,
numerous cases in 39 Cent. Dig, tit. Pleading, sec. 1338.) Appellant cites 11 Am. & Eng.
Ency. Law, 2d ed., to the effect that a variance in matters of description is fatal. The text and
the cases cited, so far as we are at present able to read them, refer to description in the
broad sense (more accurately descriptive), and not in the sense appellant seeks to apply the
rule he invokes. It will be noted that nearly all of the citations are of criminal cases, and it
will be found that the point arose with reference to the allegations of the indictment,
concerning which, of course, the rule is very strict. It is not contended that the description of
the location certificate as a probative document varied in the allegation and the proof, or that
the intervener was surprised or misled in the slightest degree, and as a matter of fact he was
not. The variance was immaterial and harmless. See the context of the intervener's own
citation: 11 Am. & Eng. Ency. Law, 531-533.
(b) This objection is based on the claim that the notice failed to comply with the law in
certain particulars required to be stated to constitute a valid notice to be recorded. The first
and conclusive answer to this objection, and those following, is that the notice was admissible
to show the nature of defendant's possession and as title or color of title without regard to
whether it was sufficient under the mining statute. (Jones v. Prospect Mountain Tunnel Co.,
21 Nev. 339, 352; Patchen v. Keeley, 19 Nev. 404, 414.) The proof was conclusive, and the
jury found that the defendant was in open and notorious possession of the property from the
time of its location. An essential element of the defendant's pleas of the statute of limitations
of two and five years was the nature of his claimhis title or color, and whether adverse to
the intervener and every one else. Of these facts the notice or certificate of location, though it
may have been defective under the mining statutes, was material evidence and the best
evidence; it was therefore admissible and it has been so held in the cases referred to. Further,
it is not contended the notice was insufficient as a notice of location under the federal statutes
(section 2324), or under the state statute (Comp. Laws, 208).
32 Nev. 360, 366 (1910) Gibson v. Hjul
The proof was undisputed and the jury found that the intervener's grantor, Hartnett, had full
knowledge of the Beehive, its corners, its boundaries and its mineral discovery and
production, and that he acquiesced therein. The claim was properly staked and marked. The
recording of the location certificate was therefore essential. (Ford v. Campbell, 29 Nev. 578;
Zerres v. Vanina, 134 Fed. 618.)
(c) The further ground is urged that there was no ore or vein discovered by the defendant
in his alleged discovery at the time of or prior or subsequent to the pretended location.
(d) The nonparallelism of the lines does not invalidate the location. The requirement of
section 2320 of the United States Revised Statutes is directory only, and the sole penalty
suffered by the locator is the loss of extralateral rights. (Morrison, Mining Rights, 13th ed. pp.
171, 172, and cases cited; Lindley on Mines, sec. 365.) At any rate, as to the intervener, the
question need not be considered. The defendant Pardy was in possession, and as to the
intervener that was sufficient. He was not obliged to prove a valid location. Intervener was
not in position to assail defendant's title. It was no answer to defendant's proof of possession
to say that the title was in the government, or a third person, and not in defendant. (Patchen v.
Keeley, 19 Nev. 404, 414; Golden Fleece Co. v. Cable Con. Co., 12 Nev. 312, 321.)
Henry K. Mitchell, in pro. per., for Appellant, in reply:
I. In the case of Hopkins v. Noyes, 4 Mont. 550, 2 Pac. 280, the court says: Possession
within a mining district to be protected, or to give validity to a title, must be in pursuance of
the law and the local rules and regulations. It must stand upon the law and be the result of a
compliance therewith. Possession without a location carries no title. Possession under a
location that has become dead by reason of nonrepresentation, or a failure to comply with the
local rules and customs, is equivalent to possession with no location at all. * * * Possessory
titles must be supported by proof, a compliance with the law that gives the right to and
sustains the possession. The statutes of Nevada and Montana in force at the time of making
the above decision are almost verbatim, {Snyder on Mines, appendix B, p.
32 Nev. 360, 367 (1910) Gibson v. Hjul
verbatim, (Snyder on Mines, appendix B, p. 1295.) Occupancy and possession are
synonymousexploration implies occupancy or possession. If under the Revised Statutes,
section 2319, defendant could not occupy the claim without a compliance with the mining
rules and regulations, he certainly can claim no right of possession without such compliance.
The case of Ford v. Campbell, 29 Nev. 578, is decisive of several principles contended for by
appellant herein.
This action concerns the title to a certain piece of mining ground on Prospect Mountain in
the Eureka Mining District, Eureka County, Nevada. The ground in question appears to have
been embraced within the several mining claims following, named in the order of their
location: Grindstone, Sam Tilden, Beehive, and Fannie. Plaintiffs instituted this action
October 13, 1906, basing their right to recover upon the Fannie location. Prior to making this
last-named location, the plaintiffs had been lessees of the said John Pardy, deceased, who was
an original defendant, and who died subsequent to the rendition of judgment in the action.
Plaintiffs based their right to recover upon the Fannie location upon the theory that the
Beehive location was void because of the fact that its locator, the said John Pardy, was at the
time of making the location a deputy United States mineral surveyor. After the defendants
had filed their answer to plaintiffs' complaint, proceedings were suspended in the court below
for the reason that the question of the right of a deputy mineral surveyor to locate a mining
claim was then pending in this court in the case of Hand v. Cook, 29 Nev. 518. The decision
of this court in the Hand v. Cook case, supra, having been adverse to plaintiffs' contention,
plaintiffs appeared in court in person and dismissed their complaint. Prior to the dismissal of
the complaint, Henry K. Mitchell, who had been the attorney for the plaintiffs, was granted
permission to intervene and filed a complaint in intervention, claiming title to the ground in
controversy by virtue of a deed, dated March 15, 1907, for the Sam Tilden claim from one
Maurice Hartnett. The defendants' objection to the right of the said Henry K. Mitchell to
intervene in the action having been overruled, defendants filed an answer and
subsequently an amended answer to the said intervener's complaint in intervention.
32 Nev. 360, 368 (1910) Gibson v. Hjul
intervene in the action having been overruled, defendants filed an answer and subsequently an
amended answer to the said intervener's complaint in intervention.
The case was tried upon the issues raised upon the complaint in intervention and the
amended answer thereto. The defendant J. H. byerly having no interest in the controversy
other than that of lessee of the defendant John Pardy, and his lease having expired prior to the
entry of judgment in the case, judgment was entered in favor of the defendant Pardy. The Sam
Tilden location was made by the said Maurice Hartnett March 9, 1889. The Beehive location
was made by the defendant Pardy July 27, 1899, and covers the major portion of the Sam
Tilden claim. These two locations are the only ones directly involved in the action. The issues
as made by the defendants were a denial of the allegations of the intervener; the allegation of
the location of the Beehive; the possession thereunder continuously from the time of such
location; that such possession was open, adverse, and notorious; the forfeiture of the Sam
Tilden claim; and, also, a special plea of the statute of limitations of both two and five years.
The case was tried by the court; but the court, deeming certain equitable features to be
involved in the case, impaneled a jury in an advisory capacity. General and special issues
were submitted to the jury, which were found in favor of the defendant Pardy. The findings
were adopted by the court, and a decision and judgment entered in favor of said defendant.
From the judgment, and from an order denying the intervener's motion for a new trial, the
intervener has appealed.
The motion for new trial was based upon the grounds: (1) Insufficiency of the evidence to
justify the decision of the court, and that such decision is contrary to the evidence, and that
the same is against law. (2) Errors in law occurring at the trial and excepted to by the
intervener.
A preliminary question is raised by counsel for respondents which goes to the jurisdiction
of the lower court to entertain the complaint in intervention. We need not, we think,
determine whether the intervener had such an interest in the result of the suit between the
original plaintiffs and defendants as would entitle him to intervene, or whether the situation
presented at that time falls within the rule laid down in the case of Harlan v. Eureka
Mining Co.,
32 Nev. 360, 369 (1910) Gibson v. Hjul
sented at that time falls within the rule laid down in the case of Harlan v. Eureka Mining Co.,
10 Nev. 92, as contended. Had the plaintiffs remained in the suit and the issues raised upon
the plaintiffs' complaint and the defendants' answer been tried and determined, the position of
counsel for respondents might be correct. After the plaintiffs dismissed their complaint, the
case went to trial between the intervener and the defendants upon the issues raised by their
respective pleadings. The intervener became virtually the plaintiff in the case. At the time the
plaintiffs dismissed the complaint, defendants did not ask to have the entire proceedings
dismissed, but, without further objection, proceeded to trial upon the issues raised by their
answer to the intervener's complaint. We think, under the state of facts, the court had
jurisdiction of the parties as well as the subject-matter.
The statement on motion for new trial presents nine assignments of error, which we will
consider in order.
Error is assigned in admitting in evidence the laws or regulations of the Eureka Mining
District. These regulations were offered in evidence in support of defendants' objection to the
admission in evidence of the notice of location of the Sam Tilden claim; defendants
contending that such notice was not in accordance with the district regulations. The objection
to the admission of the notice in evidence was overruled and the notice admitted. Even
conceding, for the purposes of this case, that those regulations were erroneously admitted,
appellant was in no way injured thereby.
Error is assigned in the ruling of the court excluding as evidence a certain notice recorded
by the said Maurice Hartnett, December 19, 1893, in the office of the county recorder of
Eureka County, which notice was filed in pursuance of the act of Congress relieving locators
from the necessity of doing annual labor for the year 1893. This notice was offered for the
purpose of proving an act of ownership upon the part of intervener's grantor at the time of
filing such notice. As this notice was filed nearly six years prior to the date of the initiation of
defendants' claim, and as they have not questioned the ownership of the Sam Tilden claim by
intervener's grantor prior to the date of the location of the Beehive claim, we are unable to
see wherein this proposed evidence was material and wherein its rejection could possibly
be prejudicial error.
32 Nev. 360, 370 (1910) Gibson v. Hjul
we are unable to see wherein this proposed evidence was material and wherein its rejection
could possibly be prejudicial error.
Error is assigned in the ruling of the court excluding the evidence of Maurice Hartnett
offered for the purpose of proving that the Sam Tilden claim was one of a group of claims
known as and called the Excelsior Group. It is difficult to understand the making of this
assignment, in view of the fact that the record upon appeal contains the following from the
testimony of the said Maurice Hartnett: Maurice Hartnett then testified: That the property
conveyed was and is the Sam Tilden in suit and constitutes one of the Excelsior Group which
he conveyed by the deed offered.' The deed which was admitted in evidence over the
defendants' objection also described the claim as one of the Excelsior Group.
Error is assigned in overruling intervener's objection to the testimony of W. C. Stewart and
A. R. Gibson relating to a lease from the defendant Pardy. This evidence, we think, was
clearly admissible as showing or tending to show possession by Pardy and work done or
being done upon the claim in question. While, at the time this evidence was offered,
defendant Pardy had not offered his proof of location of the Beehive claim, this evidence was
subsequently supplied. The court has the discretion to admit evidence out of the regular order,
subject to the supplying of other evidence later which will establish its relevancy or
materiality.
Error is assigned in sustaining the objection interposed by the defendants to a question
asked the witness A. R. Gibson to explain how or why he and his partner gave up their lease.
The witness had previously testified that he and his partner, Stewart, had given up their lease.
Conceding, without deciding, that the question was permissible in cross-examination, we are
unable to see wherein the exclusion of this testimony could possibly have been prejudicial to
the intervener, as it was not material to the issues presented.
Error is assigned in admitting as evidence defendants' notice of location of the Beehive
mining claim. A notice of location of a mining claim is not required to be recorded under the
statutes of this state. (Comp. Laws, 208, et seq.) Comp. Laws, 210, provides for the filing of
a certificate of location which must contain certain specified statements.
32 Nev. 360, 371 (1910) Gibson v. Hjul
210, provides for the filing of a certificate of location which must contain certain specified
statements. A certificate complying with the provisions of this section is made prima facie
evidence of the facts therein stated. The section further provides: Any record of the location
of a lode mining claim which does not contain all the requirements named in this section shall
be void. The notice admitted in evidence does not answer the requirements of a certificate of
location, in that it fails to contain at least the fifth requirement: The dimensions and location
of the discovery shaft, or its equivalent, sunk upon the claim. The notice, we think, was
admissible as evidence of an act of location and in support of defendants' claim of adverse
possession, and, also, for purposes of explaining the testimony of defendant Pardy and other
witnesses. Defendant did not rely on it as a a certificate of location or offer it in evidence as a
certificate. (Jones v. Prospect Tunnel Co., 21 Nev. 352.) The filing of a defective certificate
of location or the failure to file any certificate does not invalidate the claim. We had occasion
to go into this question very fully in the case of Ford v. Campbell, 29 Nev. 578. In that case
we held that the failure to file a certificate of location in accordance with the provisions of the
statute did not render a location void, but that the effect of failure to file such certificate was
to impose upon the claim owner the burden of proof to establish by other evidence that a
valid location had in fact been made. In this case defendants, we think, established,
independent of record proof, the essential requirements of a valid location of the Beehive
claim.
A further objection to the admission in evidence of the notice of location of the Beehive
claim is based upon a variance between the allegata and probata, in this, that the answer
alleges its first course to be at a point commencing south 30-3/4 degrees east, 292 feet, from
the southwest corner of Eldorado patent No. 140, and its last course to be thence south 30-3/4
degrees east, 840 feet, while the notice offered claims in each course above stated 32-1/2
degrees east. We think this objection is without merit. Notices of location are not required to
be strictly exact, and they are not controlling. The courses and distances described in the
notice yield to the monuments erected on the ground.
32 Nev. 360, 372 (1910) Gibson v. Hjul
erected on the ground. (1 Lindley on Mines, secs. 381, 382; Book v. Justice M. Co., 58 Fed.
106.)
Error is assigned in the finding made by the trial court that a vein, lode, or rock in place
was discovered at the time of the Beehive location or in sinking the discovery shaft. It may be
seriously questioned whether the evidence shows a discovery in the so-called discovery
shaft. The evidence, however, shows clearly that the defendant Pardy subsequently found
valuable ore in other workings upon the claim, some of which ore was extracted and shipped
and was of a value in excess of $100 per ton. It is a reasonable deduction from the evidence
that the work done in other parts of the claim where ore was unquestionably discovered was
more than the equivalent of that required for a discovery shaft. Conceding, without deciding,
that this finding was erroneous, it does not, we think, affect the result in this case.
The last assignment of error goes to the sufficiency of the evidence to justify the decision
and judgment. The defendant Pardy, after testifying that he located the Beehive claim at the
time stated in the notice, and that he built posts or monuments at the corners described,
further testified: I did $100 worth of work on the Beehive mine for the year 1899, after my
location of the claim, and each year since, up to the present time, I have done $100 worth of
work on the Beehive. When I located the Beehive mine, I was familiar with the ground on
which it is located and with the surrounding ground. The ground I located was unoccupied
and open to location as mining ground. At the time of my locating it, there had not been any
work done on the ground located as the Beehive for a period of at least eight or ten years. I
examined the ground and ascertained that the annual labor had not been performed on it,
since the time of my location of the Beehive mine. I have had the open and actual possession
of the ground against Maurice Hartnett and his grantee as alleged, H. K. Mitchell, and against
all others up to the commencement of this suit. Maurice Hartnett, nor any one else, ever
informed me I had located ground of his. Maurice Hartnett knew I was working the ground,
and did not interfere with my so doing. For over seven years Maurice Hartnett saw me work
the ground, doing the annual labor and other work, and did not prevent me from doing
the same.
32 Nev. 360, 373 (1910) Gibson v. Hjul
seven years Maurice Hartnett saw me work the ground, doing the annual labor and other
work, and did not prevent me from doing the same. He never told me he owned the ground.
When I made the location of the Beehive, there was what I call ore or mineral-bearing matter
at the location point or discovery shaft. The mine was located on a zone of mineral-bearing
lime. That all the limestone on that side of the Prospect Mountain be considered the lode or
ledge of mineral-bearing rock. The witness further testified: That, after said location of said
Beehive, I took a considerable quantity of paying ore from the said Beehive mine.
A. R. Gibson, a witness for defendant Pardy, testified that he, together with W. C. Stewart,
had leased the Beehive claim from the defendant Pardy and had extracted ore therefrom and
shipped the same to reduction works; that the said Maurice Hartnett was aware of the work
being done by them upon the Beehive claim, but made no claim whatever that he owned the
property. The witness further testified that he had been familiar with the property for a
number of years, and that the annual labor was not done on the ground for many years until
the Pardy location was made.
W. C. Stewart testified that he was associated with the witness A. R. Gibson in a lease of
the Beehive mine from the defendant Pardy; that Maurice Hartnett knew of the said lease
and of the work the said Stewart and Gibson were doing on the said Beehive mine; and that
the said Hartnett never objected thereto, but, on the contrary, lent them some tools to work
with on the said mine.
The contention made by counsel for appellant that the proof shows that the end lines of the
Beehive claim are not parallel is of no force in this case, as such a fact, if it be a fact, does not
make the location invalid, but could only affect extralateral rights, which are not involved in
this case. (Section 365, Lindley on Mines.)
There is evidence in this case that, at the time of the location of the Beehive claim, the
Sam Tilden claim was subject to forfeiture for failure to do the annual labor required; that,
since the location of the Beehive claim, the defendant Pardy has been in the open,
notorious, and adverse possession thereof against the intervener and his grantor and
against all the world.
32 Nev. 360, 374 (1910) Gibson v. Hjul
has been in the open, notorious, and adverse possession thereof against the intervener and his
grantor and against all the world.
The judgment and order appealed from are affirmed.
Sweeney, J.: I concur.
Talbot, J., concurring:
I concur in the affirmance of the judgment of the district court in favor of the defendants
for reasons not relating to the invalidity of the location of the Beehive by John Pardy at the
time that he was United States deputy mineral surveyor. If the action as between the
intervener, who is in the position of a plaintiff, and the defendants, who are the only parties to
this appeal, depended upon whether such a surveyor could make a valid location of a mining
claim, it might be proper for this court to frankly reverse its decision and correct its
conclusion in Hand v. Cook, 29 Nev. 518, because the federal courts, acting within the
jurisdiction vested in them for finally construing federal enactments, as well as the United
States land office and the Supreme Court of Utah, have placed an interpretation upon the act
of Congress the reverse of that given by a majority of the members of this court in that case.
In Waskey v. Hammer, 170 Fed. 36, 95 C. C. A. 310, the United States Circuit Court of
Appeals, in an opinion by Judge Ross, concurred in by Judges Gilbert and Morrow, after
citing section 452, U. S. Rev. Stats. (U. S. Comp. Stats. 1901, p. 257), which provides that
the officers, clerks and employees in the general land office are prohibited from directly or
indirectly purchasing or becoming interested in the purchase of any of the public lands, and
stating that the later rulings in the land department were to the effect that this statute is
applicable to a deputy surveyor said: In the case of Hand v. Cook, 29 Nev. 518, a majority of
the Supreme Court of Nevada held that the statute in question did not apply to a deputy
mineral surveyor; but the reverse was held by the Supreme Court of Utah in the case of
Lavagnino v. Uhlig, 26 Utah, 1, 71 Pac. 1046, 99 Am. St. Rep. 808. It will not do for a court
to take a strained and narrow view of the language employed by Congress in its enactments,
but rather give such a construction as will carry into effect its obvious intent.
32 Nev. 360, 375 (1910) Gibson v. Hjul
will carry into effect its obvious intent. We entertain no doubt that a deputy mineral surveyor
is an employee in the general land office,' within the meaning of the statute. * * * Nor do we
see that there is any much clearer way to prohibit an act than to say expressly that it is
prohibited. That Congress did in the section in question.
In the case of Prosser v. Finn, 208 U. S. 67, 28 Sup. Ct. 225, 52 L. Ed. 392, the supreme
court held that section 452 applied to a special agent of the land department who had made an
entry under the timber culture act (act March 3, 1873, c. 277, 17 Stat. 605, as amended by act
March 13, 1874, c. 55, 18 Stat. 21). The court said: The difficulty in the way of any relief
being granted to the plaintiff arises from the statute prohibiting any officer, clerk, or
employee in the general land office, directly or indirectly, from purchasing or becoming
interested in the purchase of any of the public land. That a special agent of the general land
office is an employee of that office is, we think, too clear to admit of serious doubt. * * * It is
not clear, from any document or decision to which our attention has been called, what is the
scope of the duties of a special agent of the land office, but the existence of that office or
position has long been recognized. Suffice it to say that they have official connection with the
general land office, and are under its supervision and control with respect to the
administration of the public lands. (Wells v. Nickles, 104 U. S. 444, 26 L. Ed. 825; 1 Land
Dec. Dep. Int. 608, 620; Instructions to Special Timber Agents, 2 Land Dec. Dep. Int. 814,
819-822, 827, 828, 832; Circular of Instructions, 12 Land Dec. Dep. Int. 499.) They are in
every essential sense employees in the general land office. They are none the less so, even if it
be true, as suggested by the learned counsel for the plaintiff, that they have nothing to do with
the survey and sale of the public lands, or with the investigation of applications for patents, or
with hearings before registers and receivers. Being employees in the general land office, it is
not for the court, in defiance of the explicit words of the statute, to exempt them from its
prohibition. Congress has said, without qualification, that employees in the general land
office shall not, while in the service of that office, purchase or become interested in the
purchase, directly or indirectly, of public lands.'"
32 Nev. 360, 376 (1910) Gibson v. Hjul
become interested in the purchase, directly or indirectly, of public lands.'
In my opinion, these decisions of the highest federal courts construing this act of Congress
are conclusive until or unless the Supreme Court of the United States reverses the case of
Waskey v. Hammer, which is reported to be pending before that tribunal at this time on a writ
of certiorari, or unless it reverses its own decision in Prosser v. Finn, or makes an
improbable distinction by holding that a United States deputy mineral surveyor is not an
officer or employee of the general land office when a special agent is held to be such an
employee.
It is shown by the evidence, and apparently conceded, that John Pardy posted the notices
and did the work regularly required for making the location, and did the annual work every
year on the Beehive. Assuming that the location of this claim was void because John Pardy
was a deputy mineral surveyor at the time it was made, there are obstacles which would
prevent a recovery by the intervener.
As to the Sam Tilden claim, on which he relied as having been located ten years before the
Beehive, it appeared that notices of location had been posted and recorded; but the jury found
that the location work required by the rules and regulations of the mining district and the
annual work required by the laws of Congress, had not been performed. If the Sam Tilden had
been properly located, it might be said that, if its locator remained in possession and
continued to claim the ground, he could hold it without doing the annual work as against any
one who failed to make a valid new location. But there is evidence supporting the plea of the
statutes of limitations for actions for mining claims and for real estate interposed by
defendants and tending to show an abandonment of the ground by the locator of the Sam
Tilden and an estoppel against him, in addition to any mere failure to do the annual work
which might result in forfeiture upon the making of a new valid location. The testimony of
the locator of the Sam Tilden that he had done the annual work was contradicted by witnesses
who asserted that no work had been done on the ground for eight or ten years before the
location of the Beehive. The jury found the special issues in favor of the defendants, and the
findings were approved by the court.
32 Nev. 360, 377 (1910) Gibson v. Hjul
favor of the defendants, and the findings were approved by the court.
In the statement, which is to be commended for its conciseness while apparently fully and
clearly presenting the issues raised, evidence indicating abandonment of the ground and acts
which would estop the claimant under the Sam Tilden location from asserting a right to it is
apparently uncontradicted. There was testimony that the locator of the Beehive had done the
work for seven years with the knowledge of the locator of the Sam Tilden, who did not object
or tell him that he owned the ground; that the locator of the Sam Tilden knew that the lessees
were working on the Beehive and never made any objection, but, on the contrary, loaned
them tools to work with and procured a tape-line and helped them to measure off the land,
and never told them that he owned or claimed the ground or not to work or trespass there; and
that he said he hoped they would get ore and that he would not bother about it.
In view of the weakness of the intervener's claim under these circumstances, as apparently
found by the jury, and considering the finding that the necessary location work had not been
done on the Sam Tilden at the time the notices for its location were filed and recorded in the
year 1889, that the annual work had not been done for so many years prior to the location of
the Beehive in 1899, and that no objection had been made by the locator of the Sam Tilden to
the work being done on the Beehive for seven years after its location, and that, instead of
objection being made, assistance and encouragement were given by him to the lessees
working on the Beehive, and the evidence of acts relating to an estoppel and a bar under the
statute of limitations, enough appears to sustain the judgment, regardless of any question of
the insufficiency or invalidity of the location of the Beehive.
____________
32 Nev. 378, 378 (1910) Ex Parte Prosole
[No. 1877]
In the Matter of the Application of JOHN PROSOLE for Writ of Habeas Corpus.
1. StatuteConstructionIntention of the LegislatureGiving Effect Thereto.
If the will of the legislature is apparent, the court should give such construction to the language of a
statute as will give it force, and not nullify its manifest purpose.
2. ArsonBurning Insured PropertyPunishment.
Section 4711 of the Compiled Laws designates certain acts as constituting arson in the second degree,
and prescribes the punishment thereof, and section 4712 prescribes that one wilfully burning insured
property to injure or defraud shall be adjudged guilty of arson in the second degree and punished
accordingly. Held, that the words quoted refer to and are intended to supply the same punishment
provided for that offense in the preceding section.
3. StatutesConstructionStatute as a Whole.
It is elementary that effect must be given, if possible, to every word, clause, and sentence of a statute by
construing it so as to make all parts harmonize with each other, and render them consistent with its general
scope and object.
4. StatutesConstructionStatute as a Whole.
All parts of the same act must be considered together, and if one part, standing alone, is obscure, its
meaning may be disclosed by another, and consideration of the entire act may expand or restrict the terms
of a particular clause.
5. StatutesConstructionIntent of Legislature.
In construing all statutes, the object is to ascertain the legislative intent, and words must not be narrowed
to exclude what it was intended to embrace, but the intent must be gathered from the words, and they must
be such as to leave no room for reasonable doubt on the subject, and it must not be defeated by a forced
and overstrict construction.
6. StatutesConstructionIntent of Legislature.
The rule of strict construction of penal statutes is not violated by permitting words to have their full
meaning, or the more extended of two meanings, as the wider popular instead of the narrow technical one;
but the words should be taken in such sense as will best manifest the legislative intent.
Original proceeding. In the matter of the application of John Prosole for a writ of habeas
corpus to obtain release from imprisonment. Petition denied.
A. N. Salisbury and G. W. Shutter-Cottrell, for Petitioner.
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for
Respondent.
Petitioner was indicted by the grand jury of Washoe County for the crime of arson in the
second degree, and charged with maliciously and feloniously setting fire to and burning
certain goods, wares, and merchandise situated in a building in Reno which were insured with
the Globe and Rutgers Fire Insurance Company of the City of New York in the sum of $3,000
against loss by fire, with intent to defraud that company. Trial was had, and the jury brought
in a verdict finding him guilty as charged in the indictment, and the court rendered judgment
finding him guilty of the crime of arson in the second degree, and ordering that he be
punished therefor by imprisonment for a term of four years in the state prison, to which place
he was committed, and where he now languishes.
The indictment, trial, and conviction were under section 4712 of the Compiled Laws,
being section 58 of the act relating to crimes and punishments: Every person who shall
wilfully burn, or cause to be burned, any building, or any goods, wares, merchandise, or other
chattel, which shall be at any time insured against loss or damage by fire, with intent to injure
or defraud such insurer, whether the same be the property of such person, or of any other,
shall, upon conviction, be adjudged guilty of arson in the second degree, and punished
accordingly. It is alleged that he is unlawfully restrained of his liberty because the district
court acted wholly without jurisdiction in passing judgment upon this petitioner and in
sentencing and ordering him to be confined in the Nevada state prison, as aforesaid, for the
reason that said section 4712 provides no punishment for the crime charged in the indictment
against petitioner and for the charge upon which this petitioner was tried and convicted as
aforesaid, and for the reason that the laws of the State of Nevada provide no punishment for
the offense charged in the said indictment against this petitioner, and for which petitioner was
tried and convicted and sentenced.
Has the legislature designated any punishment for the crime for which he was indicted and
convicted? Section 4710 of the Compiled Laws provides that every person who shall wilfully
and maliciously burn, in the nighttime, any dwelling-house in which there shall be some
human being, shall be deemed guilty of arson in the first degree, and shall be punished by
imprisonment for not less than two years, and which may extend to life. Section 4711, which
directly precedes the one assailed by petitioner, provides that every person who shall wilfully
and maliciously burn any dwelling-house, or cause to be burned any kitchen, office, shop,
barn, stable, storehouse, warehouse, or other building, or stacks or stocks of grain, hay,
cordwood, lumber, or other designated property of the value of $50 or more, shall be
deemed guilty of arson in the second degree, and upon conviction thereof shall be punished
by imprisonment in the state prison for a term not less than one year nor more than ten years;
and should the life or lives of any person or persons be lost in consequence of such burning,
as mentioned in this and the preceding section, such offender shall be deemed guilty of
murder, and shall be indicted and punished accordingly.
If the will of the legislature is apparent, it is the duty of the court to give effect to its
intention, and such construction should be placed upon the language of the statute as will give
it force and not nullify the manifest purpose of that section, which should be construed in
connection with the preceding one. We are unable to conclude otherwise than that by
designating in section 4711 that certain acts shall constitute arson in the second degree, and
that persons convicted thereof shall be punished by incarceration in the state prison for a term
not less than one nor more than ten years, it was, by the provision in the following section
that every person who shall wilfully burn any building, any goods, wares or merchandise,
which shall be at the time insured against loss or damage by fire, with intent to injure or
defraud such insurer, whether the same be the property of such person or any other, shall,
upon conviction, be adjudged guilty or arson in the second degree and punished accordingly,
the intention of the legislature to make persons committing the acts last designated guilty
of arson in the second degree, the same as if these acts had been specified in the previous
section among those constituting that crime as there designated, and that the words
"shall be adjudged guilty of arson in the second degree and punished accordingly" refer
to, and are intended to supply, the same punishment which is provided for that offense in
the preceding section, as clearly and fully as if the last section had repeated the language
of the former one, providing that offenders upon conviction "shall be punished by
imprisonment in the state prison for a term not less than one nor more than ten years."
ture to make persons committing the acts last designated guilty of arson in the second degree,
the same as if these acts had been specified in the previous section among those constituting
that crime as there designated, and that the words shall be adjudged guilty of arson in the
second degree and punished accordingly refer to, and are intended to supply, the same
punishment which is provided for that offense in the preceding section, as clearly and fully as
if the last section had repeated the language of the former one, providing that offenders upon
conviction shall be punished by imprisonment in the state prison for a term not less than one
nor more than ten years. Any other construction would nullify section 4712 entirely and set
aside the evident intention of the legislature contrary to the ordinary rules for construing
statutes.
The language assailed and the provision for punishment for the crime of arson in the
second degree are the same in sections 4711 and 4712 of our Compiled Laws as in the
California statute of 1856 (Cal. Stats. 1856, p. 132; Woods's Digest 1856-1860, 336). In
People v. Hughes, 29 Cal. 257, an indictment and conviction for arson in the second degree
for burning an insured building with intent to defraud the Hartford Insurance Company was
sustained under the section of the statute corresponding to the one under which petitioner was
convicted. It was sought to reverse the judgment of the trial court there on other grounds.
In Davis v. State, 51 Neb. 318, 70 N. W. 990, it was said: A criminal statute is not void
for uncertainty which prescribes as a punishment for the doing of a certain act the same
punishment that is prescribed for doing another-named act, when the same criminal code
defines the latter act and prescribes its punishment.
As quoted by the Supreme Court of Alabama from Marshall, C. J., in U. S. v. Wiltberger,
5 Wheat. 76 (5 L. Ed. 37): It is the legislature, not the court, which is to define a crime and
ordain its punishment. Though penal laws are to be construed strictly, they are not to be
construed so strictly as to defeat the obvious intention of the legislature; nor is the maxim to
be so applied as to exclude from the operation of the statute cases which the words in their
ordinary acceptation, or in that sense in which the legislature obviously used them, would
comprehend."
the statute cases which the words in their ordinary acceptation, or in that sense in which the
legislature obviously used them, would comprehend.
In Huffman v. State, 29 Ala. 44, the court said: While we disclaim the right to extend a
criminal statute to causes out of the letter, yet we hold it to be our duty to apply it to every
case clearly within the cause or mischief of making it, when its words are broad enough to
embrace such case. (Walton v. State, 62 Ala. 199.) The same language was quoted and
adopted in Holland v. State, 34 Ga. 457; and it was further stated that the intention of the
legislature is to be collected from the words it employs, and that the construction contended
for would render nugatory clauses embraced in the penal code. In U. S. v. Athens Armory, 35
Ga. 351, Fed. Cas. No. 14,473, it was said: But, notwithstanding the rule that in statutes of
this kind the intention is to be attained by strict interpretation, it is nevertheless the duty of
the judge to give full expression to the legislative will, * * * to ascertain which will,' says
Bishop (1 Crim. Law, sec. 231), is the great end of all interpretation.' (United States v.
Eighty-Four Boxes of Sugar, 7 Pet. 453, 8 L. Ed. 745; The Schooner Enterprise, 1 Paine, 32,
Fed. Cas. No. 4,499; United States v. Wigglesworth, 2 Story, 369, Fed. Cas. No. 16,690;
Taylor v. United States, 3 How. 197, 11 L. Ed. 559; Attorney-General v. Radloff, 10 Exch.
84; per Gould, J., in Myers v. State, 1 Conn. 502.)
The following is a paragraph from Meadowcroft v. People, 163 Ill. 70, 45 N. E. 306 (35 L.
R. A. 176, 54 Am. St. Rep. 447): It is urged that the statute is penal, and must therefore be
strictly construed. But the rule of strict construction does not prevent our calling in the aid of
other rules and giving to each its appropriate scope; the ascertainment of the legislative will
being the primary consideration after all. (Bishop on Stat. Crimes, sec. 200.) A strict
construction is not violated by giving the words of a statute a reasonable meaning, according
to the sense in which they were intended, and disregarding captious objections, and even the
demands of an exact grammatical propriety. (Id. sec. 212.) And a statute which is made for
the good of the public ought, although it be penal, to receive an equitable construction.
to receive an equitable construction. (6 Bacon's Abr. 391; People v. Bartow, 6 Cow. 290.)
The rule for the interpretation of criminal statutes has also been well defined in the
following cases: It is an elementary rule of construction that effect must be given, if
possible, to every word, clause, and sentence of a statute. In other words, a statute must
receive such construction as will make all its parts harmonious with each other, and render
them consistent with its general scope and object. (Follmer v. Nuckolls County, 6 Neb. 204;
State v. Babcock, 21 Neb. 599, 33 N. W. 247.) If we apply the foregoing rule in the
interpretation of the law under consideration, it is not a difficult task to ascertain the
legislature's intent. (State v. Bartley, 39 Neb. 358, 58 N. W. 174, 23 L. R. A. 67.) Another
rule controlling the interpretation of statutes is that all the parts of the same act must be
considered together, and if one part, standing by itself, is obscure, its meaning may be
disclosed by another part of the same statute. The consideration of the entire act may expand
or restrict the terms of some particular clause. (State v. Myers, 146 Ind. 38, 44 N. E. 802.)
The object in construing penal, as well as other statutes, is to ascertain the legislative intent.
That constitutes the law. If the language be clear, it is conclusive. There can be no
construction where there is nothing to construe. The words must not be narrowed to the
exclusion of what the legislature intended to embrace; but that intention must be gathered
from the words, and they must be such as to leave no room for a reasonable doubt upon the
subject. It must not be defeated by a forced and overstrict construction. The rule does not
exclude the application of common sense to the terms made use of in the act in order to avoid
an absurdity, which the legislature ought not to be presumed to have intended. * * * The
proper course in all cases is to adopt that sense of the words which best harmonizes with the
context, and promotes in the fullest manner the policy and objects of the legislature. The rule
of strict construction is not violated by permitting the words of the statute to have their full
meaning, or the more extended of two meanings, as the wider popular instead of the narrow
technical one; but the words should be taken in such a sense, bent neither one way nor the
other, as will best manifest the legislative intent." {U. S. v.
way nor the other, as will best manifest the legislative intent. (U. S. v. Hartwell, 6 Wall. 395,
18 L. Ed. 830.)
The petition for the applicant's release is denied.
____________
32 Nev. 384, 384 (1910) State v. Petty
[No. 1859]
STATE OF NEVADA, Respondent, v. C. C. PETTY, Appellant.
1. Criminal LawCompelling Accused to Testify Against HimselfPhysical Examination.
Where the defense in a homicide case was sadistic insanity, and accused was examined by a physician for
the purpose of testifying for accused as to his physical condition as bearing upon the question of insanity,
accused's examination upon an order of court by physicians appointed by it upon the state's request to
enable them to testify as to the same facts did not compel accused to become a witness against himself
contrary to article 1, section 8, of the constitution.
2. HomicideEvidence Admissible for Particular Purpose.
Where, in a prosecution for uxoricide, in which the defense was sadistic insanity, accused's medical
witness testified as to the conditions of accused's heart and genital organs, and did not state until
cross-examination that he did not base his conclusions upon the condition of the heart and genital organs,
the state could introduce evidence of the condition of such organs; and hence an objection as to its
propriety as impeaching testimony was not well taken.
3. Criminal LawAdmission of EvidenceSimilar Evidence by Adverse Party.
The overruling of an objection to the state's medical testimony as to the condition of accused's heart and
genital organs, given in connection with testimony on the concededly material questions of the condition of
his head, etc., on the ground that it was immaterial, was not error, unless accused withdrew or struck the
testimony offered by himself on the condition of such organs.
4. Words and PhrasesSadism.
Sadism is a mental disease in which the sexual instinct is abnormal or perverted.
5. Criminal LawTrialImproper ArgumentAction of Court.
In a prosecution for uxoricide, in which the defense was sadistic insanity, in objecting to accused's
medical witness detailing statements made by accused during a physical examination of him before trial by
the witness, the state's attorney stated that he objected to a conversation occurring in a jail three or four
days before trial, as it was highly improper, and no doubt was manufactured for the physician's benefit, and
that he knew there were eye witnesses to the killing, and that a legitimate defense of insanity would not
avail accused. Held, that striking out such remarks and instructing the jury to disregard them cured any
injury that might have resulted therefrom, they being merely the expression of the state's attorney's opinion.
32 Nev. 384, 385 (1910) State v. Petty
6. Criminal LawAppealHarmless Error.
An assertion by an attorney in argument, either directly or by innuendo, of the existence of a fact tending
to prejudice the jury against accused, when such fact is not in evidence, is generally held prejudicial.
7. Criminal LawTrialArgumentAction of Court.
The limits of arguments before a jury is necessarily a matter for the trial court's discretion, and an
instruction to disregard improper argument will be held not to cure such argument only where the remarks
are clearly prejudicial.
C. C. Petty was convicted of murder in the first degree, and appeals. Affirmed.
F. B. Mayers, for Appellant:
I. The remark of the assistant district attorney was as follows: But I do object to his
stating a conversation that occurred three or four days ago in the jail down here just before
this trial commenced, as it is highly improper, and may be, and no doubt is, and was,
manufactured for the doctor's benefit, made before the jury in the course of the trial. The
remark of the district attorney was as follows: He knew that there were eye witnesses to the
killing that night, and that thereby an endeavor to establish an alibi would be futile. And he
knew, also, gentlemen, that a legitimate defense of insanity would not avail him anything in
this case, made before the jury in his argument. Both of these remarks were certainly
prejudicial to the defendant. The defense interposed was rather a peculiar one, sadistic
insanity, and one which few, outside the medical profession, know exists. Sadism is a mental
disease in which the sexual instinct is abnormal or perverted, and the one afflicted, in the
grasp of sexual frenzy, will tear, bite, scratch and often kill the object of his desire, and upon
recovering from the paroxysm have no recollection of his acts.
II. No person shall be compelled in any criminal case to be a witness against himself.
(Const. of Nev., sec. 8; Const.
32 Nev. 384, 386 (1910) State v. Petty
of U. S., amend. 5.) The defendant was forced to submit to a physical examination for the
purpose of supplying the prosecution with evidence and testimony with which to rebut the
testimony of Doctor Hepner. This was done after the case for the prosecution and defense was
in and during rebuttal, and not for the purpose of rebutting any statement of the defendant.
This was a violation of his constitutional privilege, and made him a witness against himself.
(State v. Jacobs, 50 N. C. 259; Blackwell v. State, 44 Am. Rep. 717; Stokes v. State, 30 Am.
Rep. 75; People v. Wolcott, 51 Mich. 612; Cooper v. State, 4 L. R. A. 766; People v. McCoy,
45 How. Prac. 216; Emery's Case, 9 Am. Rep. 22.)
III. Only in matters relevant to the issue can a witness be contradicted for the purpose of
impeachment. (Louisville Jeans Clothing Co. v. Lichkoff, 19 South. 436; McDonald v.
Hooker, 23 S. W. 679; Mullin v. McKim, 45 Pac. 416; Hanchett v. Kimbark, 2 N. E. 512;
Eikenberry et al. v. Edwards, 24 N. W. 570.)
R. C. Stoddard, Attorney-General, L. B. Fowler, Deputy Attorney-General, W. Woodburn,
Jr., District Attorney, M. B. Moore, Assistant District Attorney, for Respondent:
I. Appellant raises the point of misconduct on the part of the district attorney and the
assistant district attorney. The court ordered and instructed the jury to disregard the remarks,
but appellant contends that this did not cure the error. A conviction will not be reversed
because of improper remarks made by the prosecuting attorney, where the court instructs the
jury to disregard them. (People v. Pope, 108 Mich. 361; Palmer v. People, 138 Ill. 356;
Grubb v. State, 117 Ind. 277; State v. Brown, 12 Minn. 538; State v. Hack, 118 Mo. 92; State
v. Kilgore, 93 N. C. 533; McGill v. State, 25 Tex. App. 499; Patrick v. State, 33 S. W. 1078;
Bradshaw v. People, 153 Ill. 156; McDonel v. State, 90 Ind. 320; Zimmerman v. State, 31 N.
E. 550; People v. Pernman, 72 Mich. 184; State v. Howard, 118 Mo. 127; State v. Taylor,
134 Mo. 109; People v. Owens, 132 Cal. 471; People v. Matthews, 139 Cal. 528.)
II. The one remaining point urged by the appellant we do not deem consequential. His own
statement of his point is very satisfactory to respondent.
32 Nev. 384, 387 (1910) State v. Petty
very satisfactory to respondent. If three doctors put on the stand by the state testified to
immaterial matters, we fail to understand how this immaterial testimony could have injured
appellant or injured the testimony of Doctor Hepner. If, on the other hand, it was material for
the appellant, at the trial of his case, to have Doctor Hepner testify as to sadistic insanity, its
causes or probable causes, and then to testify to abnormal sexual condition of the appellant,
which might form the basis for sadistic insanity, then it was material and highly important
that the state should overcome any possible impression this may have had on the jury, by
proving the nonexistence of such conditions. If there is a conflict between what Dr. Hepner
said on direct examination and what he said on cross-examination, this does not change the
fact that the jury might have accepted his testimony on direct examination and have been
governed by it, and the state was properly allowed to meet this situation.
On the 9th day of March, 1909, upon a public street in the Town of Sparks, Washoe
County, defendant killed his wife, May Petty, by shooting her five times with a pistol. He was
indicted for this uxoricide, and upon trial a verdict was returned of murder in the first degree,
with punishment fixed at death. Judgment was entered in accordance with the verdict. From
the judgment and from an order denying defendant's motion for a new trial, defendant has
appealed.
Upon the trial defendant relied upon the defense of sadistic insanity. In support of this
defense, the defendant went upon the stand and testified in his own behalf. He also called as a
witness Dr. A. H. Hepner, who qualified as an expert, and testified, among other things, to
having made a physical examination of the defendant prior to the trial, and detailed certain
physical conditions existing in the defendant, which, in part, formed a basis for his opinion
that at the time of the killing the defendant was insane.
For the purposes of rebuttal, counsel for the state requested the court to appoint three
physicians and to order that the defendant be submitted to an examination by them relative to
the physical conditions detailed in the testimony of Dr.
32 Nev. 384, 388 (1910) State v. Petty
to the physical conditions detailed in the testimony of Dr. Hepner. Over the objection of
counsel for defendant, the order as requested was made, and the following-named physicians
were appointed by the court for the purpose of making the examination: Dr. B. F.
Cunningham, Dr. W. H. Hood, and Dr. L. T. Ritchie. The examination was made in a suitable
room in the county jail in the presence of counsel for the state and for the defendant. Each of
the said physicians so appointed by the court subsequently, upon rebuttal and over the
objection of defendant, testified to the facts disclosed by their examination of the person of
defendant within the limits specified in the order of the court. Exceptions to the order
directing the examination, and to the testimony of the appointed physicians, were based upon
the contention that the constitutional guaranty that no person shall be compelled, in any
criminal case, to be a witness against himself, was violated. (Const. Nev. art. 1, sec. 8.) We
think the court did not err in the order or in the admission of the testimony.
Considering this constitutional provision, this court by Hawley, J., in State v. Ah Chuey,
14 Nev. 83, 33 Am. Rep. 530, said: The constitution means just what a fair and reasonable
interpretation of its language imports. No person shall be compelled to be a witnessthat is,
to testifyagainst himself. To use the common phrase, it closes the mouth' of the prisoner.
A defendant in a criminal case cannot be compelled to give evidence under oath or
affirmation or make any statement for the purpose of proving or disproving any question at
issue before any tribunal, court, judge, or magistrate. This is the shield under which he is
protected by the strong arm of the law, and this protection was given, not for the purpose of
evading the truth, but, as before stated, for the reason that in the sound judgment of the men
who framed the constitution it was thought that, owing to the weakness of human nature and
the various motives that actuate mankind, a defendant accused of crime might be tempted to
give testimony against himself that was not true. * * * From whatever standpoint this
question can be considered, the truth forces itself upon my mind that no evidence of physical
facts can be upon any established principle of law, or upon any substantial reason, be held
to come within the letter or spirit of the constitution.
32 Nev. 384, 389 (1910) State v. Petty
substantial reason, be held to come within the letter or spirit of the constitution. The question
of whether or not the court erred in compelling the defendant, Ah Chuey, to exhibit his arm
must, in my opinion, be determined upon other grounds. Was the defendant compelled to
exhibit himself in such a manner as to unjustly or improperly prejudice his case before the
jury? Did the act in question have a tendency to degrade, humiliate, insult, or disgrace the
defendant? Did the judge, by the act in question, convey to the jury the idea that he believed
the defendant to be guilty of the offense charged against him? If either of these questions
ought to be answered in the affirmative, then I think the defendant should be granted a new
trial. A defendant in a criminal case is entitled to a fair and impartial trial, free from insult or
obloquy, and courts cannot be too particular in guarding his personal rights and privileges. He
should never be compelled to make any indecent or offensive exhibition of his person for any
purpose whatever. The judge presiding at the trial should not express any opinion upon the
facts (State v. Tickel, 13 Nev. 502, and the authorities there cited), or compel the defendant to
do any act which would clearly convey to the jury an intimation that the defendant was guilty
of the offense charged, or to exhibit himself in such a manner as to prejudice his case before
the jury.
While this opinion was rendered more than thirty years ago, it is recognized as a leading
case construing this provision which exists in most of the state constitutions and in the federal
constitution. Not all of the authorities are in harmony with the Ah Chuey case, but the weight
of authority is. The reasons supporting the conclusions reached in that case are convincing,
and need not be repeated here. In this case the defendant had interposed the defense of
insanity, had offered himself as a witness solely in support of this defense, had been
physically examined by a physician for the purpose of enabling such physician to testify
concerning his physical condition as bearing on his alleged insanity, and such physician had
testified in regard thereto. He could not therefore interpose any legal objection to the state
having the benefit of the same character of expert examination which he had through the
testimony of his physician submitted to the jury.
32 Nev. 384, 390 (1910) State v. Petty
through the testimony of his physician submitted to the jury. The recent case of People v.
Furlong, 187 N. Y. 198, 79 N. E. 978, presents a situation somewhat similar to that here
involved. We quote from the opinion the following: The only exceptions taken by the
defendant that are urged before us relate to the examination of the defendant by Dr. Flint
during one of the adjournments of the court, while the defendant was on trial, and also to the
subsequent testimony of Dr. Flint, in which he related to the jury the conversation which he
had with the defendant, and described what he found upon a physical examination. It is
claimed in behalf of the defendant that such examination was obtained by entrapping the
defendant, and that it was generally unfair and prejudicial to him, and that he was thereby
compelled to give testimony against himself in violation of his constitutional rights. * * * The
defendant was distinctly told that he might decline to answer any questions that were put to
him, and that anything that he said in answer to questions might be used against him. * * *
The record does not disclose any justification for the claim that Dr. Flint was used to entrap
the defendant into making a statement for use against him on the trial. There is no denial of
the testimony that Dr. Flint examined the defendant after being told that it was requested by
the court, and that the examination was made without the knowledge or presence of either
counsel. We are not to pass upon the question whether due courtesy was shown to the counsel
engaged in the trial in holding the examination without notifying them. * * * The statement
made to Dr. Flint was not within the constitutional prohibition against compelling a defendant
to give testimony against himself. (People v. Truck, 170 N. Y. 203, 63 N. E. 281; People v.
Gardner, 144 N. Y. 119, 38 N. E. 1003, 28 L. R. A. 699, 43 Am. St. Rep. 741; People v. Van
Wormer, 175 N. Y. 188, 67 N. E. 299; People v. Adams, 85 App. Div. 390, 83 N. Y. Supp.
481, affirmed 176 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675, affirmed
Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575; People v. Mills, 178 N.
Y. 274, 70 N. E. 786, 67 L. R. A. 131.) See, also, State v. Tettaton, 159 Mo. 354, 60 S. W.
743; O'Brien v. State, 125 Ind. 38, 25 N. E.
32 Nev. 384, 391 (1910) State v. Petty
137, 9 L. R. A. 323; Gordon v. State, 68 Ga. 814; Commonwealth v. Buccieri, 153 Pa. 550,
26 Atl. 228; People v. Hock, 150 N. Y. 303, 44 N. E. 976.
Counsel for appellant further contends that it was error to order the examination of
defendant's person or to permit the physicians appointed by the court to testify to facts
disclosed by such examination, for the reason that the purpose of such examination was to
contradict the witness Dr. Hepner for purposes of impeachment, and, as Dr. Hepner had, upon
cross-examination, testified that he had not based his opinion on the physical symptoms of
defendant testified to by him, except the typical degeneracy written on his face and head,
his testimony relative to defendant's heart and genitals was as to an immaterial matter, and
hence could not be contradicted for purposes of impeachment. We do not think the testimony
of the physicians appointed by the court can be regarded solely in the light of impeaching
evidence. Dr. Hepner had testified at length as to the condition of defendant's heart and
genital organs, and it was not until cross-examination that he stated that he did not take into
consideration the condition of these organs in reaching his conclusions as to defendant's
mental condition. Counsel for defendant never withdrew this portion of Dr. Hepner's
testimony from the case or offered to have it stricken out. It was all included in the
hypothetical question propounded to the witness by defendant's counsel.
Sadism is a mental disease in which the sexual instinct is abnormal or perverted. Where
this character of insanity is relied on, the physical facts, now claimed to be immaterial, would
very naturally be given some weight by the jury in defendant's favor where it was shown by
uncontradicted testimony that they were abnormal. The testimony of Dr. Hepner was that
defendant's heart and genital organs were abnormal, while that of the physicians appointed by
the court was that they were normal. The court in ordering the physical examination of
defendant was careful to limit it to the points testified to by defendant's own expert. If counsel
for defendant deemed these physical facts immaterial, he should not have offered testimony
concerning them, but, having offered testimony of the existence of certain physical
characteristics of defendant, he was not in position to object to the state offering
testimony in reference to the same physical facts, and, as before stated, such testimony
could hardly be held to be governed by the rules relating to impeaching testimony.
32 Nev. 384, 392 (1910) State v. Petty
defendant, he was not in position to object to the state offering testimony in reference to the
same physical facts, and, as before stated, such testimony could hardly be held to be governed
by the rules relating to impeaching testimony. At the time the order was made, it could not be
told whether the investigations of the physicians appointed by the court would confirm the
testimony of Dr. Hepner or not. The purpose of making the order was to enable the court to
arrive, if possible, at the truth of the existence or nonexistence of certain physical facts, which
the defendant had introduced into the case in his defense, and not to impeach the defendant's
witness. The mere fact that one expert witness may reach a conclusion different from that of
another expert witness does not of itself impeach the former witness. In any event the
physical examination of the defendant went to all the points testified to by Dr. Hepner which
he found as a result of his examination, all of which were considered by him in reaching his
conclusion that the defendant was insane at the time of the homicide, with the exception of
those above mentioned.
The objection to the testimony of the physicians appointed by the court was general, and
went to all of their testimony, without specifying any certain portion thereof that was claimed
to be immaterial. The examination also went to the head, including the mouth, teeth, and
tongue, of the defendant, which are conceded to be material points. No specific objection to
the testimony relative to the other alleged immaterial points was ever made. If such objection
had been made, its overruling could not, we think, constitute prejudicial error, unless
defendant withdrew or caused to be stricken out the testimony offered in his behalf
concerning the same facts.
Counsel for appellant also contends that prejudicial error was committed because of
certain remarks of the deputy district attorney embraced in an objection to certain testimony
offered upon the part of the defendant, and because of certain remarks of the district attorney
during his argument to the jury. During the progress of the examination of Dr. Hepner by
defendant's counsel, the witness was asked to describe his examination of the person of the
defendant made prior to the trial, and to detail statements made by the defendant during such
examination.
32 Nev. 384, 393 (1910) State v. Petty
such examination. To the witness detailing these statements objection was interposed by the
deputy district attorney, and as a part of such objection he said: But I do object to his stating
a conversation that occurred three or four days ago in the jail down here just before this trial
commenced, as it is highly improper, and may be, and no doubt is, and was, manufactured for
the doctor's benefit. During the course of his argument to the jury, the district attorney made
the following remark: He knew that there were eye witnesses to the killing that night, and
that thereby an endeavor to establish an alibi would be futile. And he knew also, gentlemen,
that a legitimate defense of insanity would not avail him anything in this case.
Both these remarks were but the expression of the opinion of the state's attorney, and,
conceding that they were improper, we think the order of the court striking them out and
instructing the jury to disregard them obviated any injury that might possibly otherwise have
been done the defendant. Counsel during the heat of a trial occasionally express opinions and
make unwarranted statements, but the courts generally hold that these statements are not
sufficient to warrant a new trial where they are either withdrawn or ordered stricken out, as
was the case here, and the jury directed to disregard them. Where an attorney asserts either
directly or by innuendo the existence of a fact that would tend to prejudice the minds of the
jury against the defendant, and there is nothing in the evidence tending to establish the
existence of such fact, courts generally hold such statement to be prejudicial, and the striking
of it out and the instruction to disregard it may not be held to cure it. Such a situation is
illustrated in the case of State v. Rodriguez, 31 Nev. 342, recently decided by this courta
case in which the judgment of conviction was reversed for remarks of the district attorney
which were held not to have been cured by the order and instruction of the court. The limits
which counsel may go in addressing a jury or in the conduct of a case must necessarily be left
to the discretion of the trial court, and it is only in cases where remarks are clearly prejudicial
that an instruction to disregard will be held not to cure. No hard and fast rule can be laid
down, and each breach of professional propriety must be determined upon the particular
facts of the particular case.
32 Nev. 384, 394 (1910) State v. Petty
rule can be laid down, and each breach of professional propriety must be determined upon the
particular facts of the particular case.
Courts have frequently been called upon to reverse cases because of the remark of the
attorneys for the prosecution, who through a misguided zeal appear to have forgotten that
they owe a duty to the defendant as well as to the state. This case, however, does not present a
situation of this kind, and we think it clearly falls within that class of cases where the error if
any is cured by the action of the court. (Sawyer v. United States, 202 U. S. 150, 26 Sup. Ct.
575, 50 L. Ed. 972; State v. Simpson, 32 Nev. 138; People v. Owens, 132 Cal. 471, 64 Pac.
770; People v. Pope, 108 Mich. 361, 66 N. W. 213; Palmer v. People, 138 Ill. 356, 28 N. E.
130, 32 Am. St. Rep. 146; Grubb v. State, 117 Ind. 277, 20 N. E. 257, 725; People v. Smith,
180 N. Y. 125, 72 N. E. 931; People v. Matthews, 139 Cal. 528, 73 Pac. 416.)
The judgment and order denying the motion for a new trial are affirmed, and the district
court is directed to fix a time and make all necessary and proper orders for having its sentence
carried into effect by the warden of the state prison.
____________
32 Nev. 395, 395 (1910) State v. Martel
[No. 1814]
THE STATE OF NEVADA, Respondent, v. WILLIAM
MARTEL, Appellant.
1. Criminal LawInstructionsHarmless Error.
The court instructed that a witness is presumed to speak the truth, but such presumption may be repelled
by the manner in which he testified, the character of his testimony, or by contradictory evidence, but that
the jury were the sole judges of his credibility, and that, if any witness examined before you has wilfully
sworn falsely as to a material matter, you may disregard the entire evidence of such witness. Held, that the
court's failure to add to the part above quoted the qualification except in so far as it is corroborated by
other credible evidence, could not have prejudiced accused, in view of the fact that the great
preponderance of the evidence showed guilt; the instruction as given not precluding the jury from
considering the weight of a witness's testimony, though they believed him to have sworn falsely on a
material matter.
Norcross, C. J., dissenting.
William Martel was convicted of having burglars' tools in his possession with intent to
enter a store, and he appeals. Affirmed.
J. H. Morris, for Appellant:
I. One of the principal points upon which the defendant in this case relies, is the error of
the court in instructing the jury in the said case, as follows: If any witnesses examined before
you has wilfully sworn falsely as to any material matter, you may disregard the entire
evidence of such witness. The error complained of is that the judge of the district court
omitted from this said instruction the phrase except in so far as it is corroborated by other
credible evidence.
II. In the De Wolf case the court cites the case of Cameron v. Wentworth, 57 Pac. 648, in
which it was held that the rule concerning such instructions was that where a witness has
wilfully sworn falsely as to any material matter upon the trial, the jury is at liberty to discard
his entire testimony, except in so far as it had been corroborated by other credible evidence.
The same rule is announced in Bonnie v. Earll, 29 Pac.
Pac. 882; People v. Durrant, 116 Cal. 179. In Bonnie v. Earll, 29 Pac. 882, the court cites a
great number of cases in which this question is discussed, and we respectfully call the
attention of this honorable court to these cases.
III. Mr. Jones in his work on Evidence, vol. 3, p. 1994, in discussing the maxim falsus in
uno, falsus in omnibus, states that there are certain limitations to the general rule that a
witness who speaks falsely as to one matter is not worthy of belief in other matters, and he
sets out one of these exceptions or limitations to be that the testimony of a witness speaking
falsely in a material matter may be disbelieved by a jury, except that such testimony as is
corroborated by other credible evidence, or by facts and circumstances which may be fairly
inferred from the same, should be given proper weight by the jury; in support of which
contention the author cites a number of cases, set forth in note 7, vol. 3, Jones on Evidence, p.
1998. Under the instructions as given by the judge of the district court in this case, the jury
were precluded from believing any testimony corroborative of that given by the defendant, if
they believed that the defendant wilfully swore falsely to any material matter. Such an
instruction could not help but work prejudice to any material matter.
IV. The statute is silent as to when the motion to quash the indictment should be made. In
State v. Collier, 17 Nev. 275, the court, in discussing this matter, said: We are of the opinion
that motions of this character ought, under the provisions of our statute, to be made before
plea. If a wrong has been committed the law intends that the party injured shall have a
remedy; but where it provides the manner in which relief shall be given, the path pointed out
shall be followed.
R. C. Stoddard, Attorney-General, and L. B. Fowler, Deputy Attorney-General, for the
State.
The defendant, William Martel, was indicted by the grand jury of Nye County, State of
Nevada, for the crime of having in his possession instruments and tools with felonious intent
to break and enter into a merchandise store in Tonopah, Nevada.
Nevada. It appears from the evidence that the defendant, appellant herein, with two
associates, were overheard planning the burglarizing of some building, and, upon being
shadowed by the night officers of Tonopah, were arrested about midnight in the doorway of
Ryan & Stenson's clothing store in Tonopah, Nevada. Upon being apprehended and brought
to the jail, the defendant was searched, and upon him were found two burglar or pick-lock
keys, one file for making the same, black handkerchief mask wrapped around a Colt's
six-shooter, which revolver was taken apart, some of which parts were concealed in his boot
leg and others concealed in his underclothing; also cartridges and a razor fastened to his
underclothing under his arm. Defendant was tried before a jury, found guilty, and sentenced
by the court to serve a term of three years in the Nevada state penitentiary. From the judgment
and order denying his motion for a new trial, defendant appeals.
Appellant assigns as error the following instruction given by the court: You are the sole
judges of the effect and value of the evidence introduced in this case. Your power, however,
of judging in this regard, is not an arbitrary power, but it is to be exercised with legal
discretion and in subordination to the rules of evidence. You are not bound to decide in
conformity with the declarations of any number of witnesses which do not produce a
conviction in your minds against a less number, or against a presumption or other evidence
satisfying your minds. A witness is presumed to speak the truth. This presumption, however,
may be repelled by the manner in which he testified, by the character of his testimony, or by
contradictory evidence. You are the sole and exclusive judges of his credibility. If any witness
examined before you has wilfully sworn falsely as to any material matter, you may disregard
the entire evidence of such witness.
Appellant maintains that the court erred in giving the above instruction, because in the last
three lines of said instruction the district court omitted to add the following phrase: Except
in so far as it is corroborated by other credible evidence. While we believe the court could
have with propriety added the phrase omitted and complained of, yet, in the present case, in
view of the overwhelming preponderance of evidence conclusively proving defendant's
guilt, we do not believe the omission of the same is prejudicial to the defendant's rights.
ponderance of evidence conclusively proving defendant's guilt, we do not believe the
omission of the same is prejudicial to the defendant's rights. (Turner v. State, 50 South. 629.)
The instruction as given, without the words complained of, did not preclude the jury from
regarding the weight of any evidence given of any witness, even though they believed him to
have sworn falsely on some material matter. Neither is there anything in the instruction given
as would preclude the jury from considering the testimony of other witnesses corroborative of
the same testimony which may have been given by a witness who might have testified falsely
in some respect as to some material matter.
Other instructions given and complained of were thoroughly covered by other instructions
given by the court. We believe it is unnecessary to consider them for the reason this court has
repeatedly held that, where instructions cover the law, it is not error to refuse to give other
instructions which have been covered by instructions previously given by the court of its own
motion or otherwise. Other objections raised we have considered and find devoid of merit.
The judgment of the lower court is affirmed.
It is so ordered.
Talbot, J.: I concur.
I am unable to concur in the affirmation of the judgment. In the giving of the instruction
quoted in the prevailing opinion, I think the qualifying words except in so far as it is
corroborated by other credible evidence, should have been added. In this particular case,
however, the error was without prejudice for the reason that the defendant was the only
witness in his own behalf, and was not corroborated by any evidence except in certain
particulars by evidence offered upon the part of the state, and in these particulars the evidence
was without conflict.
I think, however, the court committed reversible error in this case in refusing all the
instructions requested upon the part of the defendant.
The gist of the offense charged was the felonious intent.
Defendant's requested instructions Nos. 12 to 15, inclusive, were designed to impress upon
the minds of the jurymen that the mere finding upon the person of defendant of tools and
implements adapted to purposes of burglary was not alone sufficient to establish the criminal
intent. The only instruction given by the court upon the subject of intent was of a most
general character, and is as follows: In every crime or public offense there must exist a union
or joint operation of act and intention or criminal negligence. The intent or intention with
which an act is done is manifested by the circumstances connected with the perpetration of
the offense and the sound mind and discretion of the accused. As to the intent or intention
with which the act charged is alleged to have been done, you must arrive at it from all the
testimony in the case and from all the acts, conduct, and circumstances as shown by the
evidence introduced before you. Criminal intent is usually proven as a deduction from
declarations or acts.
Where an instruction, requested by the defendant, correctly states the law, it should not be
refused by the court unless already allowed, substantially, in other instructions to be given. It
cannot, I think, be said that the refusal to give these instructions was not prejudicial to the
defendant. The record shows that the jury had some difficulty in reaching a verdict and at one
time reported that they were unable to agree upon a question of fact. An agreement was
finally reached, and a verdict of guilty returned with a recommendation of mercy to the court.
While the evidence was all circumstantial, it may be that a verdict of guilty would have been
returned had these instructions been given; but that is a matter upon which courts are not
permitted to speculate. The refused instructions went to a material point in the case, and were
not, in my judgment, sufficiently covered by other instructions given.
____________
32 Nev. 400, 400 (1910) Riter v. Douglass
[No. 1890]
HENRY RITER, Appellant, v. W. G. DOUGLASS, as Secretary of State
of the State of Nevada, Respondent.
1. Constitutional LawFederal Constitution as Grant or Limitation of Powers.
Congress has no legislative power beyond that expressly granted or clearly implied by the constitution.
2. Constitutional LawConstitutionality of StatutesPresumption.
Since the legislature can pass any act not expressly prohibited by the state or national constitution, an act
is presumed to be constitutional until declared otherwise by a court of competent jurisdiction.
3. Constitutional LawStatutesWho Entitled to Question Validity.
Questions of the wisdom, policy or expediency of a law are for the legislature's determination, with which
courts cannot interfere.
4. ElectionsDirect Primary LawLegislative Power.
Enactment of a primary election law is an inherent right of the legislature under the constitution.
5. ElectionsDirect Primary LawConstitutionalityInvading Right of Suffrage.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not unconstitutional as destroying
political parties, nor as denying electors the right to determine the political principles their candidates must
espouse, nor as enabling electors of opposite political faith to name the candidates of their political
opponents.
6. ElectionsPrimary Legislative power.
The state has the right under the police power vested in its legislature to make reasonable regulations in
the interest of public welfare for the nomination of candidates of the various parties.
7. ElectionsPolitical Parties.
Political parties are organizations of electors entertaining the same political opinions, attempting through
an organization to elect officers of their own party faith and make their political doctrines the policy of the
government.
8. ElectionsRight to VoteNature.
The right to vote conferred by article 2, section 1, of the constitution is a mere political privilege, and not
an inherent, unqualified personal or political right.
9. ElectionsPolitical PartiesRights.
The rights of political parties can be no greater than the rights of electors under the constitution.
10. ElectionsDirect Primary LawConstitutionality.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not unconstitutional as violating article
1, section 2, of the constitution, providing that all powers are inherent in the people, nor section 20,
providing that the enumeration of rights therein shall not impair or deny others retained by the people.
11. ElectionsDirect Primary LawConstitutionality.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not unconstitutional as violating article
1, section 10, of the constitution, permitting the people to assemble for the common good and to instruct
their representatives.
12. ElectionsDirect Primary LawValidity.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid because it requires
participating electors to declare a present intention to support the nominees for whom he votes.
13. ElectionsElectorsQualifications.
Article 2, section 1, of the constitution, prescribing the qualification of electors and guaranteeing their
right to vote, applies to the election of public officers, and not to the selection of party nominees.
14. ElectionsPrimary Election.
A primary election is one for the nomination of candidates of the various parties.
15. ElectionsPrimary ElectionsClassification of PartiesLegislative Power.
The legislature can in regulating primary elections prescribe qualifying classifications for political parties
who desire to be represented on official ballots.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid as failing to provide a
method by which parties other than those designated may be represented upon the ballot, in view of section
5, subdivision c, which provides that the act shall not prevent independent nominations according to
existing laws.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid as depriving political
parties of the right to say who shall be members thereof, and forcing the admission as a member of any
elector declaring an intent to support the nominees.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid because limiting voters to a
ballot for one candidate for each office.
19. ElectorsCandidatesQualificationsLegislative Power.
The legislature can add qualifications to electors desiring to become candidates for specified offices if the
qualifications are reasonable and constitutional.
20. Constitutional LawDirect Primary LawValidityParties Entitled to Question.
Only one whose rights are affected can assert the unconstitutionality of the direct primary law of March
23, 1909 (Stats. 1909, c. 198), on the ground that it prevents one from being a candidate who has been
defeated at a primary election.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid because it requires the
payment of fees as a condition precedent to becoming a candidate; the fee being a reasonable one.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid because it requires of
candidates an oath of fealty to their party which differs from the oath required by article 15, section 2, of
the constitution, since that section applies only to persons about to enter office.
23. ElectionsElectorsQualifications.
No religious test can be made a qualification of an elector.
The direct primary law of March 23, 1909 (Stats. 1909, c. 198), is not invalid as prohibiting the
nomination of independent candidates, since section 5, subdivision c, thereof expressly authorizes such
nomination.
25. Constitutional LawDirect Primary LawValidityWho Entitled to Question.
The constitutionality of the direct primary law of March 23, 1909 (Stats. 1909, c. 198), can only be
questioned on the ground that it precludes a qualified elector and candidate from appearing on the official
ballot, or precludes any qualified elector from voting for any qualified candidate, by one deprived of such
right.
Ormsby County; F. P. Langan, Judge.
Action by Henry Riter against W. G. Douglass, Secretary of State. From a judgment for
defendant, plaintiff appeals. Affirmed.
L. A. Gibbons and James T. Boyd, for Appellant:
As said by the Supreme Court of the State of California in discussing a similar law: There
is at once to be perceived an express limitation upon the powers of political parties, which
hitherto they have exercised, of adopting their own modes for the election of their candidates.
It is a part of the political history of this state and of the United States that such powers,
whether resting in right or merely in the permissive silence of the legislature, have been freely
enjoyed. (Britton v. Board of Election Commissioners, 129 Cal. 341.)
When a party is denied rights long used, the electors of the party and they alone are
denied those rights. "All our election laws recognize in their substance and spirit that the
only effective political action under a free constitution is that which is exercised by a
combination of voters through the medium of party organization, and it follows that any
discrimination against parties or their candidates is a discrimination against the electors
composing the party." {Beatty J., in Murphy v. Curry, 137 Cal.
party and they alone are denied those rights. All our election laws recognize in their
substance and spirit that the only effective political action under a free constitution is that
which is exercised by a combination of voters through the medium of party organization, and
it follows that any discrimination against parties or their candidates is a discrimination against
the electors composing the party. (Beatty J., in Murphy v. Curry, 137 Cal. 487.)
We contend that the political power exercised by electors in the formation of political
parties, promulgation of platforms and nomination of candidates was expressly reserved to
them by section 2 of article 1 of our constitution, which provides, among other things: All
political power is inherent in the people, and by section 20 of article 1, which is as follows:
This enumeration of rights shall not be construed to impair or deny others retained by the
people.
The above views are amply sustained by the case of Britton v. Board of Election
Commissioners, 129 Cal. 337.
The law denies electors the right to determine the political principles that their candidates
must espouse, and thus denies electors the right to instruct their representatives. The primary
law enables electors of opposite political faith to name the candidates of their political
opponents. If it be said that political parties are recognized by the primary law, it can be
answered that they are recognized only to be destroyed. There is the further answer that under
the guise of maintaining the integrity of parties and the purity of elections, a political party
cannot be debauched and forced to permit candidates to go before the people as representing
the party when those candidates have been nominated by their political opponents.
The law is void in that it denies certain political parties the right to participate in primary
elections authorized by the act, and provides no method by which their candidates may appear
upon the official ballot. It may be contended that the law does not destroy political parties,
but recognizes them. If we admit this to be the fact for argument's sake, the law is not helped.
Section 21 of article 4 of our constitution provides: 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."
laws shall be general and of uniform operation. It will not be disputed that a general law can
be made applicable to elections and to all political parties. (See Marsh v. Hanly, 111 Cal.
371.) The proper construction of the foregoing provision of the constitution is familiar law. It
means that a law dealing with a certain class must give all belonging to that class the same
benefits and impose upon them equal burdens. And if the law in question fails to do so, it
violates the above provision of the constitution.
We again remark that there is under the laws of Nevada no way in which the parties
excluded from the primary law may place, as a party, candidates upon the official ballot.
In Fields v. Osborne, 60 Conn. 544, the court said: The element of time is not essential to
the formation of a legal party. It may spring into existence from the exigencies of a particular
election, and with no intention of continuing after the exigency has passed. To hold the
contrary would strike a blow at that independence in political action upon which the good
government of a locality may depend. Now, can the number of voters that must be united in
order to form a legal party be prescribed by law without violating one of the fundamental
theories of popular government? If it is shown, as it is in this case, that an independent
political party was formed, that it assumed a distinctive name, and that the ballots which it
issued sought the suffrages under no false title, but bore the name of the political party
issuing them, it is enough, so far as the point now being considered is concerned. To hold
otherwise would be to abridge rights which are not only generally held to be sacred, but
which it is of the utmost importance to preserve. (See, also, Eaton v. Brown, 96 Cal. 375.)
The law is void in that it deprives political parties of the right to say who shall be members
thereof, and forces each political party to admit as a member any elector who complies with
the legislative test. Our argument upon this point is: A political party has the right to say who
shall compose its members, and for that purpose has the right to impose whatever tests it may
desire upon those seeking to become members and to discipline its members as it may see fit,
arbitrarily, if you please, and neither the legislature nor courts can interfere with that right.
with that right. If a party had not this right, and the right is outside the party, then it has no
certain tenure of life, for the one holding this right can betray, disorganize, misrepresent, and
destroy the party by forcing it to accept as members those who will accomplish these results.
A party has this power or the legislature has the power. There is no half-way business about
it. In its ultimate analysis, the legislature means the majority of its members. If they have the
power to prescribe party tests, any political party preserves its integrity only by the majority's
grace and good willrare flowers in a political garden. A political party in its own internal
management, like any other voluntary society, is beyond the reach of the legislature, and is
beyond the reach of a court, save that the court may prevent fraud and misrepresentation
attempted to be practiced upon it. A political party is an association of citizens who agree on
certain lines of policy; and the purpose for which it exists is to impose that policy upon the
government. (Temple, J., in Britton v. Board, supra.) To the point that courts will prevent
frauds upon electors, and the misrepresentations of political parties, we cite: Whipple v.
Owen, 50 Pac. 861; Whipple v. Broad, 25 Colo. 407; Southhall v. Griffith, 37 S. W. 577;
Alkeson v. Lay, 115 Mo. 538; State v. Rotwitt, 18 Mont. 502; State v. Elliott, 17 Wash. 18;
State v. Reek, 18 Mont. 557; Certificates of Nomination of McKinley Citizens' Party, 6 Pa.
Dist. Rep. 109; State v. Piper, 50 Neb. 42; State v. Tooker, 18 Mont. 540; Baker v. Election
Commrs., 110 Mich. 635; Reeves's Nom., 3 Pa. Dist. Rep. 637; Matter of County Clerk, 21
Misc. Rep. 543; Matter of Broat, 6 Misc. Rep. 445.) If the courts will prevent frauds upon
parties, it is for the reason that parties have rights; the legislature cannot authorize frauds
which a court would prevent.
The law is unconstitutional in that it prevents one from being a candidate for office if he
has been defeated at a primary election. A person derives his right to become a candidate for
office from the constitution. If he is qualified under the constitution, the legislature cannot
take away that right or impose conditions upon its exercise. (McCrary on Elections, sec. 312.)
Under the constitution of the State of Nevada any qualified elector may be a candidate for any
office within the state, provided he is not holding a lucrative office under the government
of the United States or any other power.
state, provided he is not holding a lucrative office under the government of the United States
or any other power. (Const. Nev. art. 4, sec. 9, and art. 15, sec. 3.) There is a special
qualification for the office of governor (art. 5, sec. 3). The primary law provides that a
candidate defeated at a primary election held under the provisions of this act shall be
ineligible for nomination to the same office at the same election.
The law is void in that it requires the payment of certain fees as a condition precedent to
becoming a candidate. (See section 7 of the act.) Under the provisions of article 2, section 1,
and article 15, section 3, of the constitution, no property qualification is required, either of an
elector or officer, and we think we may safely say the legislature cannot enact that an elector
or officer must possess property qualifications before he can vote or hold office. If it cannot
do this directly, it cannot do it indirectly, as it seeks to do when it requires the payment of
money before one can seek office. Would it be argued that a law was valid which required the
payment of five dollars by an elector before he could vote? Yet the right to be a candidate for
office is as free and unlimited as the right to vote. It is false logic to say fees may be required
if they are reasonable; the question of reasonableness is for the legislature, and it may
prescribe fees which would be prohibitive when applied to minority parties. In fact this
provision is in line with all other provisions of the law looking to the destruction of minority
parties and the independent voter. As was well said in Johnson v. Grand Forks County, 113
N. W. 1071: We are of the opinion that the legislature has no power to pass any law having
for its purpose the restriction or limitation of the number of candidates who have otherwise
qualified for office. If the fee as fixed is to stand, the practical working of the law is to
discourage and possibly eliminate all party efforts, except on the part of the majority party. It
is a practical prohibition on all voters of the minority party participating as members of such
parties.
The law prohibits the nomination of independent candidates, and thus shows the
legislative intent to confine participation in the primaries to parties having candidates at the
last presidential election. It is true that the primary law, sections 2 and 5, provides that
nothing in this act shall prevent the nomination of independent candidates as provided by
existing laws; still if the law provides an exclusive method whereby candidates' names
may be placed on the ballot, and this method cannot be complied with by one seeking an
independent nomination, is not the reservation thereby rendered nugatory?
sections 2 and 5, provides that nothing in this act shall prevent the nomination of independent
candidates as provided by existing laws; still if the law provides an exclusive method
whereby candidates' names may be placed on the ballot, and this method cannot be complied
with by one seeking an independent nomination, is not the reservation thereby rendered
nugatory? The conditions to be complied with by candidates are as follows:
1. No candidate's name shall be printed on the official ballot to be used at a primary
election unless nomination papers in form as prescribed be filed in his behalf. (Sec. 5, subd.
1.)
2. These nomination papers shall be substantially as set forth in the act, and shall not be
filed unless in that form and signed and verified. (Sec. 5, subd. 2.)
3. These nomination papers must be signed by a member of some party. (Sec. 5, subd. 1.)
4. Nomination papers to the number of a certain percentage of the voters of the party of
such candidate must be filed to entitle such candidate's name to be placed upon the primary
ballot. (Sec. 5, subd. 5.)
5. No other names may be printed on the official primary ballot. (Sec. 12, subd. 1.)
6. The basis of the percentage above named is found in sec. 5, subd. 5, par. C.
7. The percentages of the party vote required are set forth in sec. 5, subd. 5, pars. A, B, C,
D.
8. The candidate who may be nominated must be one who at the last preceding general
election affiliated with the party on whose primary ballot he seeks to be placed. (Sec. 5, subd.
4.)
9. The candidate must take oath as to the name of his party. (Sec. 5, subd. 4.)
10. The official primary ballot must have printed upon it the party designation. (Sec. 12,
subd. 3.)
11. A sample form of such ballot showing such party designation is made part of the act.
(Sec. 12, subd. 9.)
12. Upon the close of the primary election polls the election officers must count all the
votes cast for each party candidate for the several offices, and record the same on separate
tally-lists for each party."
candidate for the several offices, and record the same on separate tally-lists for each party.
(Sec. 21, par. 2.)
We leave it to be explained how an independent candidate can comply with the above
exclusive provisions of the law.
Any law which denies an elector his freedom of choice, his right of franchise, is absolutely
void. Decisions on this point are so numerous and explicit that it stultifies one to argue the
question as a res nova. We cite the following cases:
In Sanner v. Patton, 155 Ill. 563, the court said: It is also said that ample provision has
been made in this act whereby candidates may be nominated, and thus be entitled to have
their names placed on the ticket, and that it is the intention of the act that no vote should be
cast for a person who was not nominated. If such was the intention, why did the legislature
not say so, and why did it say directly the contrary? What, it may be asked, is there so sacred
in the nomination of a candidate for office by a political caucus that a voter should be
compelled to vote for a nominee of the caucus or else be deprived of the elective franchise?
Under section 1, article 7, of our constitution, every male citizen of the United States above
the age of twenty-one years, who has resided in the state one year, in the county ninety days,
and in the election district thirty days next preceding any election, is entitled to vote at such
election. To exercise this right there is one exception, and but one, so far as we have been
able to find; and that is found in section 7 of the same article, which declares that the general
assembly shall pass laws excluding from the right of suffrage persons convicted of infamous
crimes. Adopting the well-known maxim or rule of construction that the expression of one
thing is to be regarded as the exclusion of another, the legislature does not possess the power
to take away from a resident citizen the right of suffrage unless he has been convicted of an
infamous crime. Nor can the legislature do indirectly what they cannot do directly, and yet, if
the construction contended for by appellee be the correct one, the voter is deprived of the
constitutional right of suffrage. He is deprived of the right of exercising his own choice, and
when this right is taken away there is nothing left worthy of the name of the right of
suffragethe boasted free ballot becomes a delusion.
a delusion. By our constitution, general elections are to be held at certain fixed times, and the
right of suffrage is secured to every citizen possessing the requisite qualification. The new
law cannot impinge upon the right of voters to select their public servants at such elections, or
be so interpreted as to limit the range of choice for constitutional officers to persons
nominated in the modes prescribed by it. Nominations under it entitle the nominees to place
upon the official ballots printed at public expense, but the Missouri voter is still at liberty to
write of his ballot other names than those which may be printed there. The statute recognizes
this right by requiring blanks for such writing, next the printed names. (Bowers v. Smith, 17
S. E. 761.)
A careful consideration of appellant's brief will readily show that he depends almost
entirely upon certain California cases wherein the supreme court of that state had under
consideration statutes radically different from the one now under consideration in this case,
which statutes were passed under constitutional provisions entirely unlike the Nevada
constitutional provisions relating to elections. Therefore it follows, under the familiar rule of
constitutional law, that in the absence of such a limitation, the legislature has, under its police
power, full and absolute authority to provide a method for the choosing of candidates for
public offices. Laws regulating primary elections of parties are the proper subject of police
regulation. (State v. Moore, 87 Minn. 308; Ladd v. Holmes, 40 Or. 167; Hopper v. Stack, 69
N. J. L. 562; Kenneweg v. Commissions, 102 Md. 119; Bacon v. Walker, 204 U. S. 311, 15
Cyc. 332.) A primary election is not an election to public office. It is merely a selection of
candidates for office by the members of a political party, in a manner having a form of
election. (Line v. Board of Canvassers, 117 N. W. 730; State v. Nichols, 50 Wash. 508, 97
Pac. 728; State v. Felton, 77 Ohio St. 578.) In Montgomery v. Chelf, 118 Ky. 766, 82 S. W.
388, it is also held that the constitutional provision that all elections shall be free and equal
does not apply to primary elections.
The effect of this appellate proceeding is to test the constitutionality of the law commonly
referred to and known as the Direct Primary Law, enacted March 23, 1909. (Stats. 1909, p.
273.) On the 23d day of February, 1910, the appellant herein, a taxpayer and qualified elector
of the State of Nevada, instituted an action in the First Judicial District Court of the State of
Nevada, in and for the County of Ormsby, against the respondent to restrain him from
expending any money required to be expended or entering into any contracts required to be
entered into under and by virtue of that certain law entitled An act to provide for the direct
nomination of candidates for public office by electors, political parties and organizations of
electors, without conventions, at elections to be known and designated as primary elections,
determining the tests and conditions upon which electors, political parties and organizations
of electors may participate in any such primary election, and establishing the rates of
compensation for primary election officers serving at such primary elections; providing for
the organization of political parties and the promulgation of their platforms, and providing the
methods whereby the electors of political parties may express their choice at such primary
elections for United States senator, to provide for the registration of voters for said primary
elections and the compensation of registry agents, and to provide penalties for violating the
provisions of this act, assigning as grounds for the relief demanded constitutional defects in
the law. To the complaint, setting forth the unconstitutional grounds assigned, a demurrer was
interposed by respondent, regularly presented to and sustained by the lower court and
judgment rendered in favor of the defendant, respondent herein. From this judgment plaintiff
appeals, and attacks the law in question as unconstitutional upon the following grounds,
which we will consider in the order presented:
(1) The law is unconstitutional, in that it destroys political parties, and in so doing
deprives voters of the right to form and govern political parties, which right inheres in the
nature of our government and is guaranteed by the constitution of the State of Nevada. (a)
The law denies electors the right to determine the political principles their candidates must
espouse, and thus denies electors the right to instruct their representatives.
determine the political principles their candidates must espouse, and thus denies electors the
right to instruct their representatives. (b) The primary law enables electors of opposite
political faith to name the candidates of their political opponents.
(2) The law is void, in that it denies certain political parties the right to participate in
primary elections authorized by the act, and provides no method by which their candidates
may appear upon the official ballot.
(3) The law is void, in that it deprives political parties of the right to say who shall be
members thereof, and forces each political party to admit as a member any elector who
complies with the legislative test.
(4) The law is void, in that it restricts the elector's right of suffrage contrary to the
constitution, and denies him the privilege of voting for certain classes of electors.
(5) The law is unconstitutional, in that it prevents one from being a candidate for office if
he has been defeated at a primary election.
(6) The law is void, in that it prohibits certain classes of electors, constitutionally
qualified, from being candidates for office.
(7) The law is void, in that it requires the payment of certain fees as a condition precedent
to becoming a candidate.
(8) The law is void, in that it requires of officers an oath other than and different from
that required by the constitution.
(9) The law prohibits the nomination of independent' candidates, and thus shows the
legislative intent to confine participation in the primaries to parties having candidates at the
last presidential election.
(10) The law is unconstitutional, in this: It provides an exclusive method for obtaining a
place on the official ballot, and further provides that only those whose names are on the ballot
can be voted for, thus depriving electors of the right of suffrage.
Before proceeding, however, to a consideration of these objections raised, we believe it
will be profitable to momentarily advert to a consideration of the limitations placed upon our
lawmaking bodies in the enactment of laws by our federal and state constitutions, and to
the power of the judiciary to declare legislative action void, and to such rules of statutory
construction as may be proper in the determination of the constitutionality of questioned
legislative acts.
federal and state constitutions, and to the power of the judiciary to declare legislative action
void, and to such rules of statutory construction as may be proper in the determination of the
constitutionality of questioned legislative acts.
When the people of the United States created this unexcelled government of ours, they
entertained the opinion that all power is inherent in the people, in opposition to the previous
theory held by the royal heads of other governments, and commonly assented to, that the
people were only entitled to such rights, privileges, and power as the heads of these
governments deigned to give them. With a clear understanding of and faith in the principles
that all men are created equal and all power is inherent in the people as contradistinguished
from the principles entertained by monarchs and kings that royal blood made them superior to
their fellow-beings, and that they were endowed with all governmental power by divine right,
the people of the United States, before dispossessing themselves of any power they believed
inherent in themselves and binding themselves up to a constitutional form of government,
seriously debated and decided what governmental principles they would profess and imbed in
their new constitution. They then divided and delegated specifically an enumerated list of
powers to the legislative, executive, and judicial departments, into which they divided their
new republican form of government, then an experiment, but now as a form of government a
model and proven success, after which we believe in time all governments will be patterned.
To the Congress of the United States, the legislative branch of our national government,
they plainly stated in their constitution what laws they are authorized to pass; and, as a
consequence, Congress has no authority to pass any laws except such as the constitution
either expressly authorizes or grants by clear implication. Hence, when a law of Congress is
attacked as unconstitutional for contravening any right, unless the federal constitution
granting Congress the specified authority to enact the measure is broad enough to sustain the
law, it is unconstitutional. On the other hand, the people, formulating the constitution of our
state, gave to the legislative branch of our state government unreserved authority to pass
any legislation which was not expressly prohibited by the constitution they framed or in
violation of our national constitution.
branch of our state government unreserved authority to pass any legislation which was not
expressly prohibited by the constitution they framed or in violation of our national
constitution. Therefore, when a law of our state is attacked as unconstitutional, it is presumed
to be constitutional until it is declared otherwise by a court of competent jurisdiction, as in
contravention of the constitution of the United States or that our state constitution expressly
prohibits the passage of the act in question. To sustain an act of Congress, we must examine
the constitution of the United States, and find a grant of legislative power upholding the act as
constitutional; but to sustain an act of our legislature, alleged to be in contravention to our
state constitution, we must examine our state constitution, and find therein no prohibition of
authority to enact the measure before it can be declared unconstitutional. In short, in
considering the constitutionality of a federal or state act, there is a great difference in the
legislative power conferred on Congress by the national constitution and the power conferred
on the legislature by our state constitution to be considered, which must be kept in mind.
Congress is authorized only to enact such laws as the national constitution expressly grants it
or is clearly implied with the grant; while the lawmaking power of the state is authorized to
enact legislation on all subjects which are not expressly prohibited by our state constitution or
in contravention of the federal constitution.
The Court of Appeals of the State of Missouri, in commenting on this particular question,
has the following to say: But a state legislature, unlike the national Congress, has full
legislative power wherever it is not restrained by the constitution, whereas Congress has
power only when it is granted by the constitution. Hence the legislature does not need express
constitutional authority to legislate on a subject, but only lack of a constitutional prohibition.
Authority' given by the constitution to pass a law means, therefore, more than that there is no
restriction against passing a law. It means a positive constitutional direction in regard to it. It
follows that the constitution of the state does not authorize the passage of an act regarding
primary elections, although such an act of the legislature is valid, for it is not prohibited
by the constitution."
an act regarding primary elections, although such an act of the legislature is valid, for it is not
prohibited by the constitution. (Dooley v. Jackson, 104 Mo. App. 30, 78 S. W. 333.)
Judge Cooley, in his great work on Constitutional Limitations, states: The rule of law
upon this subject appears to be that, except where the constitution has imposed limits upon
the legislative power, it must be considered as practically absolute, whether it operate
according to natural justice or not in any particular case. The courts are not the guardians of
the rights of the people of the state, except as those rights are secured by some constitutional
provision which comes within the judicial cognizance. The protection against unwise or
oppressive legislation within constitutional bounds is by an appeal to the justice and
patriotism of the representatives of the people. If this fail, the people in their sovereign
capacity can correct the evil, but courts cannot assume their rights. The judiciary can only
arrest the execution of a statute when it conflicts with the constitution. * * * Any legislative
act which does not encroach upon the powers apportioned to the other departments of the
government, being prima facie valid, must be enforced, unless restrictions upon the
legislative authority can be pointed out in the constitution, and the case shown to come within
them. (Cooley's Constitutional Limitations, 7th ed. 236-237.)
The Supreme Court of Pennsylvania tersely expresses the rule thus: Nothing but a clear
violation of the constitutiona clear usurpation of power prohibitedwill justify the judicial
department in pronouncing an act of the legislative department unconstitutional and void.
(Pennsylvania Railroad Co. v. Ribelt, 66 Pa. 169, 5 Am. Rep. 360.) Our own supreme court,
in construing the legislative power of this state, held as follows: That the legislature has the
power to enact any law not prohibited by our constitution. (State v. Arrington, 18 Nev. 412.)
It will be unnecessary to consume any time in considering all that has been said in the
arguments and otherwise, as to the wisdom, policy, or expediency of the law in dispute,
further than to say that this court has, in conformity with the incontrovertible law, held that as
to these matters they are solely within the legislative department to determine, and for this
reason no legislative act is subject to judicial repeal.
reason no legislative act is subject to judicial repeal. (Ex Parte Boyce, 27 Nev. 299, 65 L. R.
A. 47; Ex Parte Kair, 28 Nev. 132-149, 113 Am. St. Rep. 817; Id. 28 Nev. 425-439.)
Our first consideration, therefore, in determining whether or not the present act is
unconstitutional, will be an examination of our state constitution to ascertain if any
prohibition exists therein which would deprive the legislature of the right to enact a direct
primary law. Section 2 of article 1 of the constitution of Nevada provides: 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. * * * Thus we see the constitution expressly gives to the legislature the
full power and authority to alter or reform the law whenever in their judgment the public
good may require it. And, as before stated, as to the power, wisdom, or expediency of the law,
these matters are entirely within the province of the legislative department.
Section 1 of article 2 of our constitution provides: Every male citizen of the United States
(not laboring under the disabilities named in this constitution), of the age of twenty-one years
and upwards, who shall have actually, and not constructively, resided in the state six months,
and in the district or county thirty days next preceding any election, shall be entitled to vote
for all officers that now are or hereafter may be elected by the people, and upon all questions
submitted to the electors at such election; provided, that no person who has been or may be
convicted of treason or felony in any state or territory of the United States, unless restored to
civil rights; and no person who, after arriving at the age of eighteen years, shall have
voluntarily borne arms against the United States, or held civil or military office under the
so-called Confederate States, or either of them, unless an amnesty be granted to such by the
federal government; and no idiot or insane person shall be entitled to the privilege of an
elector.
Section 6 of article 2 of our constitution provides: Provision shall be made by law for the
registration of the names of the electors within the counties of which they may be residents,
and for the ascertainment, by proper proofs, of the persons who shall be entitled to the
right of suffrage, as hereby established, to preserve the purity of elections and to regulate
the manner of holding and making returns of the same; and the legislature shall have
power to prescribe by law any other or further rules or oaths as may be deemed
necessary, as a test of electoral qualifications."
dents, and for the ascertainment, by proper proofs, of the persons who shall be entitled to the
right of suffrage, as hereby established, to preserve the purity of elections and to regulate the
manner of holding and making returns of the same; and the legislature shall have power to
prescribe by law any other or further rules or oaths as may be deemed necessary, as a test of
electoral qualifications. In these provisions of our constitution, we find full authority granted
the legislature to pass all necessary legislation for general elections; and a further examination
of our constitution will disclose no prohibition to enact a direct primary law so long as the act
conforms in other respects to our constitution. As to the inherent right of the legislature under
our constitution to enact a primary election law there can be no question.
Counsel for appellant have placed their main reliance for the nullification of this act upon
three California cases, to wit, Marsh v. Hanly, 111 Cal. 371, 43 Pac. 975, Spier v. Baker, 120
Cal. 370, 52 Pac. 659, 41 L. R. A. 196, and Britton v. Board of Commissioners, 129 Cal. 337,
61 Pac. 1115, 51 L. R. A. 115, all of which cases were decided by the Supreme Court of
California prior to an amendment of the constitution of that state specifically authorizing the
enactment of a direct primary, and which we will have occasion to refer to and analyze during
the course of this opinion. The constitution of California, however, prior to the amendment,
was not identical with the constitution of Nevada, nor had it as broad or specific a grant of
power as contained in section 6 of article 2 of our constitution, as a careful reading will
reveal, and, in consequence, these authorities in this respect are of limited value in a
determination of the constitutionality of the act in question.
Section 1 of article 2 of the constitution of California, under which these cases were
decided, provides as follows: Every native male citizen of the United States, every male
citizen who shall have acquired the rights of citizenship under or by virtue of the treaty of
Queretaro, and every male naturalized citizen thereof, who shall have become such ninety
days prior to any election, of the age of twenty-one years, who shall have been a resident of
the state one year next preceding the election, and of the county in which he claims his vote
ninety days, and in the election precinct thirty days, shall be entitled to vote at all
elections which are now or may hereafter be authorized by law."
days, and in the election precinct thirty days, shall be entitled to vote at all elections which are
now or may hereafter be authorized by law. The constitution was thereafter amended, as was
stated by the Supreme Court of California, in Katz v. Fitzgerald, 152 Cal. 433, 93 Pac. 112,
to meet and avoid * * * objections to the primary law, which this court found were
interposed by the constitution. The said section as amended, being 2 1/2 of article 2 of the
constitution of California, reads as follows:
The legislature shall have the power to enact laws relative to the election of delegates to
conventions of political parties; and the legislature shall enact laws providing for the direct
nomination of candidates for public office, by electors, political parties or organizations of
electors without conventions at elections to be known and designated as primary elections;
also to determine the tests and conditions upon which electors, political parties or
organizations of electors may participate in any such primary election. It shall also be lawful
for the legislature to prescribe that any such primary elections shall be mandatory and
obligatory. * * *
The legislature of Nevada is authorized by direct constitutional authority (1) to make
provision for the registration of electors; (2) to make provision as to who shall be entitled to
vote; (3) to make provision to preserve the purity of elections; (4) the manner of holding
elections; (5) the manner of making returns; (6) to prescribe any rule which may be deemed
necessary as a test of electoral qualifications; the only limitation being that the legislature
cannot violate section 1 of article 2, wherein the constitution in terms fixes who are entitled
to the right of suffrage. While it is unnecessary for us to state whether or not the old
constitution of California was broad enough to sustain a direct primary law, providing the act
was in consonance in other respects with the constitution, without a grant of power for this
specific legislation, as held necessary by the Supreme Court of California in these cases relied
upon by appellant, yet an examination of section 21/2 of the California constitution, as
amended, will disclose that it is not much broader, if any, in its grant of power than is the
power to enact a direct primary law given expressly to the legislature of Nevada by section 6
of article 2 of our own constitution.
the legislature of Nevada by section 6 of article 2 of our own constitution.
In Socialist Party v. Uhl, 155 Cal. 778, 103 Pac. 181, the Supreme Court of California
sustained the right of the legislature of that state to enact a direct primary law under section 2
1/2 of the constitution of California. While the present law is a practical revolution of
political methods, heretofore in vogue in this state, in the manner of selecting nominees for
office, yet it is clear from an examination of our constitution that the legislature has the
inherent and primal constitutional right to enact such a measure, providing it is in other
respects not violative of other constitutional requirements. Having determined that our
legislature is not prohibited from enacting, but, on the contrary, is vested with ample authority
to pass a valid primary law, we come now to a consideration of whether or not the law, as
enacted, is violative of any constitutional provision, as is contended by counsel for appellant.
1. It is urged by counsel for appellant that the law is unconstitutional, in that it destroys
political parties, and in so doing deprives voters of the right to form and govern political
parties, which right inheres in the nature of our government and is guaranteed by the
constitution of the State of Nevada. In support of this contention, counsel for appellant
maintain that the avowed object of the primary law is the destruction of political parties, for
by its express terms it prevents them from nominating candidates or formulating platforms.
With this contention we disagree, believing, on the contrary, that, when the legislature
enacted the primary law in dispute, it recognized the existence of political parties, and that,
instead of attempting to destroy them, it simply regulated the means by which the efforts of
political parties should be directed and protected in exercising their preferences in nominating
their party candidates. The primary law, from first to last, teems with recognition of political
parties in its attempt to regulate the methods for the nomination of the candidates of the
various parties. One of the main objects sought to be acquired by this law is to preserve the
integrity of political parties. In the absence of any law by the legislature to regulate the
nomination of candidates of the various parties or independent candidates for office, political
parties and candidates were privileged to adopt by custom or otherwise such methods as
to them seemed best in getting on the official election ballot; but, when the lawmaking
body of the state saw fit, for any reason or policy, to enact a measure promulgating a
uniform method whereby candidates for nomination for the various offices or duly
qualified electors who may desire to become candidates independently must comply with
to get on the official ballot, methods or customs heretofore adopted by candidates for
office or political parties in the selection of their candidates for office must give way to
the law.
candidates for office, political parties and candidates were privileged to adopt by custom or
otherwise such methods as to them seemed best in getting on the official election ballot; but,
when the lawmaking body of the state saw fit, for any reason or policy, to enact a measure
promulgating a uniform method whereby candidates for nomination for the various offices or
duly qualified electors who may desire to become candidates independently must comply
with to get on the official ballot, methods or customs heretofore adopted by candidates for
office or political parties in the selection of their candidates for office must give way to the
law.
A proper administration of the affairs of a sovereign state affects vitally the welfare of the
existence of its citizens, and, where such a matter of vital importance is at stake, the state has
the right, under the police power vested in its legislature, to make such reasonable regulations
in the interest of public welfare for the nomination of the candidates of the various parties as
it may determine. (State v. Moore, 87 Minn. 308, 311, 92 N. W. 4, 59 L. R. A. 447, 94 Am.
St. Rep. 702; Ladd v. Holmes, 40 Or. 167-180, 66 Pac. 714, 91 Am. St. Rep. 457; Healey v.
Wipf, (S.D.) 117 N. W. 521-523 (1908); State v. Michel, 121 La. 374, 46 South. 430; State v.
Nichols, 50 Wash. 508, 97 Pac. 728; Walling v. Lansdon, 15 Idaho, 282-300, 97 Pac. 396;
State v. Felton, 77 Ohio St. 554, 84 N. E. 85; People v. Dem. Com., 164 N. Y. 335, 58 N. E.
124, 51 L. R. A. 674; State v. Anderson, 118 N. W. 22; State v. Johnson, 87 Minn. 221, 91 N.
W. 604, 840; Morrow v. Wipf, 115 N. W. 1121-1124; Hopper v. Stock, 69 N. J. Law, 562, 56
Atl. 1; Kenneweg v. Commrs., 102 Md. 119, 62 Atl. 249; State v. Anderson, 100 Wis.
523-533, 76 N. W. 482, 42 L. R. A. 239; De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L.
R. A. 771, 28 Am. St. Rep. 814; Cooley, Const. Lim. 7th ed., note p. 899; State v. Moore, 87
Minn. 308, 92 N. W. 4, 59 L. R. A. 447, 94 Am. St. Rep. 902; Bacon v. Walker, 204 U. S.
311, 27 Sup. Ct. 289, 51 L. Ed. 499, 15 Cyc. 332; Dooley v. Jackson, 104 Mo. App. 21, 78 S.
W. 330.)
Whether or not the state should attempt to regulate or change the methods heretofore in
vogue in the way of nominating candidates for public offices, as heretofore suggested, is a
matter solely for the legislature to determine.
a matter solely for the legislature to determine. The fact that twenty-two states in the Union
have within the last twelve years seen fit to enact direct primary laws for the direct
nomination of candidates for office and the right to enact such measures declared
constitutional wherever such direct primary laws were not in violation of any other
constitutional requirement, and the growing demand for a change of selecting nominees in
other states which have not changed from the old convention methods to the direct primary
methods, simply voices the evolutionary political spirit of the times in evidencing a desire for
a political change which is believed to be for the best interests of the people and state.
Nowhere in the primary law is there anything that prohibits the organization of political
parties, associations, clubs, conventions, or organizations from convening as they have
heretofore done and debating the policies of their party, drawing platforms, or in selecting
candidates whom they will agree to support in a primary election if they desire to do so.
The Democratic party could, if it saw fit, issue a call for a convention as heretofore has
been the custom, prepare platforms setting forth such principles as it may desire, and select
and indorse whatever candidates it may desire to submit at the primary election. Such
candidates selected, however, before they can become the nominees of their party, must
submit to the voters of their party by direct vote to secure the proper certificates necessary to
appear on the official ballot. Under the old convention method, the candidates selected
became the party nominees, but under the primary law candidates for nomination must
qualify before the rest of the voters of their party faith if they would be nominees of their
party, unless they run independently.
One of the purposes of the direct primary law was undoubtedly to remove candidates from
the influence of convention dictators or bosses or those who manipulate the selection of
candidates by a superior knowledge of politics in convention by making such candidates so
selected, should a convention be held anyway, be ratified by a majority of the voters of the
particular party before they become party nominees. In other words, the voters may select
their candidates directly; or can either ratify the nominations of candidates nominated and
recommended by a convention, should a convention be held, or in opposition to the
convention candidates, if a convention should be held, reject such candidates if a majority
of the voters of the party are not satisfied, or ratify as many of the nominations of such
convention candidates as meet with the approval of a majority of the party.
either ratify the nominations of candidates nominated and recommended by a convention,
should a convention be held, or in opposition to the convention candidates, if a convention
should be held, reject such candidates if a majority of the voters of the party are not satisfied,
or ratify as many of the nominations of such convention candidates as meet with the approval
of a majority of the party. So it is plain that the purpose of the law is not to destroy political
parties as contended, but rather to secure and preserve the right of the electors to select their
own candidates if not satisfied with the candidates selected in a convention, were one had, for
the purpose of the illustration suggested.
The objection of counsel for appellant that this law tends to destroy political parties is
rather of a political than a legal objection, to which an appeal should be made to the people
through the legislature to remedy, and not the courts. If the people do not like the law, the
remedy is by an appeal to the legislature to repeal it rather than to the courts for judicial
annulment. A careful consideration of the act in question leads us to believe that the voters,
instead of being deprived of the right to govern political parties, as contended by counsel for
appellant, are given greater power to govern them, for the reason that the majority of the
electors of any party have the power retained in themselves to override any candidate or
group of candidates selected by convention or otherwise if they do not meet with the approval
of the electors.
Counsel for appellant assume in support of their objection to the act under consideration
that the law deprives the electors, when collectively associated in a party, of electoral rights
guaranteed them under the constitution of Nevada, because of the importance played by
national parties in forming the policies and shaping the history and destinies of our
government from the time of its inception, in that no law can vary the convention custom of
selecting candidates and formulating platforms which have been in vogue so long, for the
reason that these customs have been practically crystallized into law. No one, with any
knowledge of the history of our country, will contend for a moment that political parties have
not played an important part in both the political and economic history of our government;
nor that they are not a powerful and necessary force in a successful administration of the
affairs in a republican form of government such as we possess.
of our government; nor that they are not a powerful and necessary force in a successful
administration of the affairs in a republican form of government such as we possess.
As was succinctly said by Mr. Bryce in the American Commonwealth: In America the
great moving forces are the parties. * * * The spirit and force of party has in America been as
essential to the action of the machinery of government as steam is to a locomotive engine; or,
to vary the simile, party association and organization are to the organs of government almost
what the motor nerves are to the muscles, sinews, and bones of the human body. They
transmit the motive power. They determine the directions in which the organs act. A
description of them is therefore a necessary complement to an account of the constitution and
government; for it is into the hands of the parties that the working of the government has
fallen. Their ingenuity, stimulated by incessant rivalry, has turned many provisions of the
constitution to unforeseen uses, and given to the legal institutions of the country no small part
of their present color. (State v. Felton, 77 Ohio St. 569, 84 N. E. 87.) But political parties,
which are organizations of electors, entertaining the same political opinions, attempting
through an organization to elect officers of their own party faith, and make their political
doctrines the policy of the government, can have no greater rights than any elector,
notwithstanding the important part political parties have played in our history, and their
customs of selecting candidates must give way to the law when the legislature so decides.
Counsel for appellant fail to appreciate the fact that the elective franchise guaranteed to the
electors under the constitution of the state is a mere political privilege, not a natural right nor
an inherent unqualified personal or political right, and, in consequence, it naturally follows
that the rights of political parties are no greater than the rights of the electors derived from the
constitution. (6 Am. & Eng. Ency. Law, p. 935; Bryce, Am. Commonwealth, pp. 422, 423;
Weimer v. Bunbury, 30 Mich. 214; 8 Cyc. 743; Cooley, Const. Lim. 7th ed, pp. 244, 245;
Beebe v. State, 6 Ind. 501-510, 63 Am. Dec. 391; Mayo v. Wilson, 1 N. H. 53; Hale v.
Everett, 53 N. H. 9, 16 Am.
Rep. 82; Eckerson v. Des Moines, 137 Iowa, 452, 115 N. W. 177; Healey v. Wipf, 117 N. W.
521; Coggeshall v. Des Moines, 138 Iowa, 730, 117 N. W. 309, 128 Am. St. Rep. 221;
Gougar v. Timberlake, 148 Ind. 38, 46 N. E. 339, 37 L. R. A. 644, 62 Am. St. Rep. 487.)
Counsel contends that because section 2 of article 1 of our constitution, which sets forth
that all power is inherent in the people, and that section 20 of article 1, wherein it says,
after enumerating the rights retained by the people, that this enumeration of rights shall not
be construed to impair or deny others retained by the people, therefore political parties are
deprived of the rights to select candidates for office as was the custom at the time the
constitution of the state went into force and effect. The fallacy of the argument is apparent, in
view of the right which is still retained in the people as illustrated by the fact that they have
the right to either ratify or reject the candidates of the convention or any clique of politicians
who may attempt to force a nominee upon them before obtaining their approval and consent.
It is obvious that the very retained political spirit claimed as inherent in the people still exists
and the enactment of a primary law does not, when analyzed, deprive them of any right
political or otherwise which they heretofore enjoyed.
(a) The next constitutional objection interposed by counsel for appellant is that the law
denies electors the right to determine the political principles their candidates must espouse,
and thus denies electors the right to instruct their representatives, because it is in violation of
section 10 of article 1 of the constitution, which provides: The people shall have the right
freely to assemble together to consult for the common good, to instruct their representatives,
and to petition the legislature for redress of grievances. This argument has been shown to be
untenable by what we have stated in our previous treatment of the assignment just passed
upon, and our illustration of how parties, if they wish, may still under this law assemble and
formulate platforms and instruct any candidates they may endorse for submission to the party
at the primary election.
As previously stated, there is nothing in the law which denies the right of the various
parties to assemble in convention or otherwise and consult together, nor is there anything
in the law wherein the various parties are precluded from instructing the candidates
whom they may select as candidates for the primary either before or after their
nomination.
denies the right of the various parties to assemble in convention or otherwise and consult
together, nor is there anything in the law wherein the various parties are precluded from
instructing the candidates whom they may select as candidates for the primary either before or
after their nomination. The constitutional privilege guaranteed to the people to assemble
together and instruct their representatives is in no way abridged by this law, nor are they
precluded from doing so under this law the same as they have in the past under convention
methods heretofore in vogue if they so desire. While all candidates, even in conventions,
were bound by all political morals to carry out the planks in their respective platforms to
which they pledged themselves when nominated, yet there is no law or constitutional mandate
requiring them to do so. We believe there is a great constitutional distinction which counsel
for appellant seemingly overlook when they contend that an antecedent pledge, as required
under the old convention method of making the candidates endorse the platforms before they
were nominated, is the same as the constitutional right vested in the people to instruct their
representatives. Neither under the old law nor under the primary law could the people be
precluded from assembling and instructing candidates as to their wishes or principles or the
policies they desired said candidates to support. Certainly there is nothing in the present law
which would preclude them from assembling to instruct an independent candidate if he were
elected any less than there has been in the past to assemble and instruct independent
candidates prior to the enactment of the primary law. The people still retain the power to so
assemble and instruct either independent or regular party candidates, or not, as they so desire,
and the candidates elected have still the great American privilege of executing their
instructions or declining to do so.
(b) The next objection of counsel for appellant is that the primary law enables electors of
opposite political faith to name the candidates of their political opponents. This we believe
is an assumption of counsel which in no way affects the constitutionality or
unconstitutionality of the law in question. Counsel for appellant in this contention, as in many
others attacking this law, fail to grasp the distinction between the unrestricted right of the
legislature to regulate primary elections of political parties for the election of their
nominees at primary elections, and the limitations imposed on the legislature in enacting
laws affecting elections for the selection of the officers by the entire electorate, as
distinguished from the voters qualified to vote for party nominees.
right of the legislature to regulate primary elections of political parties for the election of their
nominees at primary elections, and the limitations imposed on the legislature in enacting laws
affecting elections for the selection of the officers by the entire electorate, as distinguished
from the voters qualified to vote for party nominees. There is a substantial distinction in the
law between the nominating of a candidate and the election of public officer. The promise of
an elector to comply with the test prescribed by law before he is allowed to vote at a primary
election cannot invalidate the law because of the individual betrayal of the test after he has
voted. The legislature has the unquestioned right to prescribe a uniform test for electors who
desire to participate in primary elections. The test provided in the present law as to his bona
fide present intention to support the nominees of such political party or organization, is a
reasonable and fair regulation in maintaining the integrity of the various parties, and we can
see no valid objection in requiring those who participated in a primary election from stating
that they intend to support the candidates named by them for election. Under the old political
system in vogue at primary elections for the selection of delegates to convention, tests have
always been required of every elector challenged who desired to participate in the election.
The Supreme Court of Louisiana, in sustaining the test required by the primary law in that
state, said: * * * The voter, by participating in a primary, impliedly promises and binds
himself in honor to support the nominee, and that a statute which exacts from him an express
promise to that effect adds nothing to his moral obligation, and does not undertake to add
anything to his legal obligation. The man who cannot be held by a promise which he knows
he has impliedly given will not be held by an express promise. (State v. Michel, 121 La. 387,
46 South. 434.)
The Supreme Court of the State of Washington, in upholding the test required in that state
for those participating in primary elections, said: Section 12 of the primary act (Laws 1907,
c. 209) provides that when a voter at the primary election demands the ticket of a particular
party, and his right to vote that ticket is challenged, he shall make oath or affirmation that he
intends to affiliate with the party whose ballot he demands at the ensuing election, and
that he intends to support generally the candidates of that party.
tion that he intends to affiliate with the party whose ballot he demands at the ensuing election,
and that he intends to support generally the candidates of that party. It is contended that this
section adds a requirement to the qualifications of electors in addition to the constitutional
requirements, and for that reason renders the entire act void. Were the primary election so far
such an essential part of the general election as to make the constitutional provision relating
to the qualification of electors entitled to vote at the general election applicable thereto, then
there would be force in this objection. But we do not think the sections of the constitution
providing the qualifications of electors applicable to the primary election provided for by this
statute. It is not the purpose of the primary election law to elect officers. The purpose is to
select candidates for office, to be voted for at the general election. Being so, the qualifications
of electors provided by the constitution for the general election can have no application
thereto. * * * No doubt the qualification here complained of was inserted to protect the
integrity of political parties. The legislature had provided for party ballots for use at the
primary election, and it was but just that some restraint be put upon the privilege of
demanding and voting a particular ballot. So far, therefore, from being an unwarranted
restriction, it seems to us that, if party integrity is to be preserved, this provision is highly
proper and commendable, and could have been made with profit much more stringent than it
actually is. (State v. Nichols, 50 Wash. 522, 97 Pac. 731.)
The Supreme Court of South Dakota, in sustaining the right of the legislature to prescribe
a test for candidates of the various political affiliations at primary elections, said: It is for the
party to nominate; for the people to elect. The question is not who shall be chosen to any
particular public office. That is for the voters of all political parties to determine at the polls.
It is simply who shall represent the organization as its nominees, and certainly the
determination of that question should be controlled by the action of the party itself; otherwise,
party nominations are impossible. To what extent, if at all, the rights of organized political
parties should be recognized and regulated by law, as a matter of public policy, to be
determined by the legislative departmenta matter which does not concern this court.
mined by the legislative departmenta matter which does not concern this court. Its duty is
done when it gives effect to the legislative will as expressed in statutes which do not conflict
with any provision of the federal or state constitution. (State v. Metcalf, 18 S. D. 393, 100 N.
W. 923, 67 L. R. A.) (Morrow v. Wipf, 115 N. W. 1124.)
The Supreme Court of the State of Oregon, in sustaining the view we entertain, that the
legislature is authorized to regulate the test of political organizations at a primary election, in
passing upon this point, said: The test prescribed for participating in a party primary is that
the elector voted for a majority of the candidates of such party or association at the last
election, or intends to do so at the next election.' The authority of the legislature to prescribe
any test whatever is challenged; that being a matter, it is contended, wholly within the
discretion of the parties themselves. The California primary act of 1899 was declared
inoperative because it prescribed no test whatever, and permitted parties of different party
affiliations to vote for party delegates. (Britton v. Board, 129 Cal. 337, 61 Pac. 1115, 51 L. R.
A. 115.) Hence it would seem that a test is necessary. But who shall prescribe it? Neither the
legislature nor the parties can prescribe any test, it is plain, that will operate to exclude legal
voters of the same political faith, nor admit any that are not legally qualified, as otherwise the
election would not be free and equal. The election being authorized by law, parties cannot
claim any higher authority touching the qualifications of voters thereat than the legislature. If
so, they might easily subvert the will of the legislature, and render the law nugatory for any
substantial purpose. So the question recurs as to whether this feature is one of regulation also.
We think it is, and within the power of the legislature to prescribe the rules relative thereto
under the constitution. The fundamental principle upon which such legislative authority
proceeds, and must proceed, is that its ultimate purpose is the election of public officers by a
free and equal choice of the qualified electors. A free and equal choice of such officers
includes a free and equal choice by party members of the delegates whose function it
becomes to select partisan candidates, and the legislative authority is adequate to prescribe
all reasonable rules and regulations looking to the security and safeguarding of these
sacred rights and privileges.
adequate to prescribe all reasonable rules and regulations looking to the security and
safeguarding of these sacred rights and privileges. In so doing the right of the adherents of the
respective parties to assemble and consult together for their common good is in no way
impinged upon, and they may still advocate and promulgate political doctrines and principles
without restriction, so that it is done in a peaceable manner, and does not tend to moral
obliquity, the infraction of the law (Davis v. Beason, 133 U. S. 333, 10 Sup. Ct. 299, 33 L.
Ed. 637), or the destruction of the government itself. In so far as Britton v. Board, 129 Cal.
337, 61 Pac. 1115, 51 L. R. A. 115, is not in harmony with this view, if it may be considered,
we cannot approve it. (Ladd v. Holmes, 40 Or. 167, 188, 66 Pac. 714, 721, 91 Am. St. Rep.
457.)
Counsel for appellant seemingly fail to appreciate that the electoral test of an elector
spoken of in the constitution is for the election of public officers, and not for the election at
which party nominees are selected. The Supreme Court of California, in the recent case of
Socialist Party v. Uhl, said: The right and duty of the legislature to prescribe a test for
electors voting at a primary cannot be questioned, nor do we perceive any reasonable grounds
for questioning the validity of a test as to candidates. (Socialist Party v. Uhl, 155 Cal. 776,
792, 103 Pac. 188.) Any reasonable test of party affiliation may be required by the legislature
of those who desire to participate in primary elections of the various parties. (State v. Nichols,
50 Wash. 508, 97 Pac. 728; State v. Michel, 121 La. 374, 46 South. 430; State v. Drexel, 74
Neb. 776, 105 N. W. 174; Hopper v. Stack, 69 N. J. Law, 562, 56 Atl. 1; Morrow v. Wipf,
115 N. W. 1121; Rouse v. Thompson, 228 Ill. 522, 81 N. E. 1109.) The test prescribed by our
statute is practically identical with the test prescribed under the primary act of the State of
New York (Laws 1899, c. 473), sustained by the New York Court of Appeals speaking
through Judge Alton B. Parker, in People v. Democratic Comm., 164 N. Y. 335, 58 N. E.
124, 51 L. R. A. 674.
2. It is also contended by counsel for appellant that the law is void, in that it denies
certain political parties the right to participate in primary elections authorized by the act, and
provides no method by which their candidates may appear upon the official ballot."
upon the official ballot. Again, we find the position of counsel fallacious in failing to keep in
mind the substantial distinction which exists between a primary election, which is an election
simply for the nomination of candidates of the various parties, and the election of public
officers when the voters of all parties at the polls determine from among the candidates
selected at the primary elections and independent candidates who are to be the officers to
administer their affairs of state. A primary election at which nominees of the various parties
are selected is not to be confounded with the election of officers within the meaning of the
constitutional right of electors to vote for all officers that are now or hereafter may be
elected by the people. (Line v. Board, 154 Mich. 329, 117 N. W. 730, 18 L. R. A. 412;
Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 388; Morrow v. Wipf, 115 N. W. 1121-1124;
State v. Johnson, 87 Minn. 221, 91 N. W. 604, 840; State v. Nichols, 50 Wash. 508, 97 Pac.
728; State v. Felton, 77 Ohio St. 554-578, 84 N. E. 85; Dooley v. Jackson, 104 Mo. App. 21,
78 S. W. 330.)
As tersely stated by the Supreme Court of the State of South Dakota: It is for the party to
nominate; for the people to elect. (Morrow v. Wipf, 115 N. W. 1124.)
The Supreme Court of Minnesota, in considering the constitutional provision similar to
our own, said: If the election of candidates to the position of nominees is an election within
the meaning of article 7 of the constitution, then the primary law, as above construed, is
unconstitutional. It would in certain cases deprive the voter of his privilege to exercise the
elective franchise. Such an occasion might arise when no candidates appear for nomination,
no provision being made for filling vacancies or for leaving blank lines on the ballot to enable
the voter to write in the name of some person of his choice. But it is very clear that the
election of nominees provided for in the primary law is not the election referred to in the
constitution. The language of article 7 bearing upon the subject is as follows: Every male
person of the age of twenty-one years or upwards, belonging to either of the following
classes, who shall have resided in the United States one year and in this state four months
next preceding any election shall be entitled to vote at such election in the election district of
which he shall at the time have been for ten days a resident for all officers that now are or
hereafter may be elective by the people.' By 'officers' is meant the executive or
administrative agents of the state or the governmental subdivisions thereof, and the
election mentioned has reference only to the selection of person to fill such offices.
tion district of which he shall at the time have been for ten days a resident for all officers that
now are or hereafter may be elective by the people.' By officers' is meant the executive or
administrative agents of the state or the governmental subdivisions thereof, and the election
mentioned has reference only to the selection of person to fill such offices. The election thus
defined cannot reasonably be given so broad an interpretation as to include the selection of
nominees for such offices. (State, ex rel. Gulden, v. Johnson, 87 Minn. 223-224, 91 N. W.
841.)
The legislature has the undoubted right, in the regulation of primary elections, to prescribe
qualifying classifications for political parties who desire to avail themselves of the privilege
of getting on the official ballot through the manner prescribed by law.
The Supreme Court of California, in the case of Katz v. Fitzgerald, in opposition to the
contention made by counsel in this assignment, wherein the same question was directly
presented, held that it was a reasonable regulation for the legislature to classify such political
parties then in existence as a right to appear otherwise than independently by limiting their
right to a certain percentage of the votes cast at a previous election, and not a denial of any
constitutional right so long as the law is uniform in providing what parties could avail
themselves of the primary methods of selecting their nominees for office. Some
classification is made necessary, else any two, three, or four men might call themselves a
party, and impose the burden of placing the names of their candidates upon the ballot
provided by the state lawa condition which could be easily made intolerable to the state, as
well as to the voter. Classification becoming necessary, the one here adopted is rational, and
does not impose any burden upon one of a class that is not imposed upon all; nor, upon the
other hand, does it confer any special privilege upon parties which have cast more than three
per cent of the vote, which is not conferred upon all such parties. (Katz v. Fitzgerald, 152
Cal. 433, 93 Pac. 114.)
In Ladd v. Holmes, supra, the Supreme Court of the State of Oregon has also held that
the position of counsel on this point is not tenable.
of Oregon has also held that the position of counsel on this point is not tenable.
The Supreme Court of Minnesota, in the case of State v. Jensen, 86 Minn. 19, 89 N. W.
1126, in commenting on this point, said: We are of the opinion that the legislature may
classify political parties with reference to differences in party conditions and numerical
strength, and prescribe how each class shall select its candidates, but it cannot do so
arbitrarily, and confer upon one class important privileges and partisan advantages and deny
them to another class, and hamper it with unfair and unnecessary burdens and restrictions in
the selection of its candidates. While it seems to some of us that the percentage of the vote
selected as the basis of the classification in this act is larger than necessary, yet it was a
question for the legislature, and we are not justified in holding that the classification was
arbitrary. We hold the law as we have construed it constitutional. See, also, 15 Cyc. 334;
Schafer v. Whipple, 25 Colo. 400, 55 Pac. 180; People, ex rel. Dickerson, v. Williamson, 185
Ill. 106, 56 N. E. 1127; State v. Kinney, 57 Ohio St. 221, 48 N. E. 942; Concoran v. Bennett,
20 R. I. 6, 36 Atl. 1122; Davidson v. Hanson, 87 Minn. 211, 91 N. W. 1124, 92 N. W. 93;
Ransom v. Black, 54 N. J. Law, 446, 24 Atl. 1021, 16 L. R. A. 769; State v. Poston, 58 Ohio
St. 621, 51 N. E. 150, 42 L. R. A. 237; De Walt v. Bartley, 146 Pa. 529, 24 Atl. 185, 15 L. R.
A. 771, 28 Am. St. Rep. 814.
The answer to the contention of counsel for appellant that the law is constitutionally
defective, in that no method is provided by which candidates of other parties other than those
particularly designated by the act may appear upon the official ballot is that such parties or
those disqualified may avail themselves of subdivision c of section 5, which among other
things provides: Nothing herein shall be construed as prohibiting the independent
nomination of candidates to be voted for at any general election, by electors or bodies of
electors, as now provided by law. * * * (Stats. 1909, p. 278.) Section 1693, et seq., Comp.
Laws, which are not repealed by the primary law and are now in full force and effect,
prescribe a method by which independent candidates or new parties may avail themselves by
petition in getting on the official ballot.
may avail themselves by petition in getting on the official ballot. The present law is uniform
in so far as it treats the various classes of electors who may desire to get on the official ballot,
and if candidates or political parties do not wish to avail themselves of the privilege accorded
them of securing their nominations as now provided by the primary law, or by reason of not
being able to qualify with the legislative requirements imposed, they still have the
constitutional privilege of running independently.
3. Counsel for appellant also contends that the law is void, in that it deprives political
parties of the right to say who shall be members thereof, and forces each political party to
admit as a member any elector who complies with the legislative test. The right of the
legislature to prescribe a test for party organizations who may desire to comply with the direct
primary methods provided for the selection of their candidates we believe is thoroughly
established, if, as heretofore expressed in this opinion, one of the obvious purposes of the
primary law is to preserve the integrity of parties, it is manifestly proper for the legislature to
impose a test on those who may desire to participate in the primary election for the selection
of candidates in order that the integrity of the party may be better sustained. The test required
by the law in question is a reasonable one. Even without the test, an elector is in political
honor bound to support the nominee whom his vote aids in becoming the party nominee. The
oath merely acts as a guaranty and an additional incentive to carry out the obligations which
every man participating in a primary election morally assumes whether he takes the test or
not.
The Supreme Court of California, in the case of Socialist Party v. Uhl, supra, and also in
the case of People v. Griffith, held a similar objection to that now raised by counsel for
appellant as untenable in primary law cases wherein this identical question was squarely
raised and passed upon. (Socialist Party v. Uhl, 155 Cal. 792, 103 Pac. 181; People v.
Griffith, 146 Cal. 339, 80 Pac. 68.)
4. Counsel for appellant further assigns that the law is void, in that it restricts the elector's
right of suffrage contrary to the constitution, and denies him the privilege of voting for
certain classes of electors," in violation of section 1 of article 2 of the constitution of the
state, which section prescribes the qualifications of electors.
certain classes of electors, in violation of section 1 of article 2 of the constitution of the state,
which section prescribes the qualifications of electors. An examination of section 1 of article
2 of our constitution will reveal that the constitutional right of suffrage of those made
qualified to vote is that they shall be entitled to vote for all officers that are now or hereafter
may be elected by the people. With this test in mind, and keeping in view the substantial
distinction that a primary election, at which the choice of candidates or nominees of political
parties are selected, as distinguished from the general election in November wherein the
entire electorate elect the officers, provided for in the test, the fallacy of this point assigned by
counsel is too apparent after what has been heretofore said to need further review or
consideration.
That a primary election of candidates is not an election of officers within the meaning of
the constitutional test has been sustained by an overwhelming weight of authority in states
with similar constitutional provisions to those contained in the constitution of Nevada. (Line
v. Board, 154 Mich. 329, 117 M. W. 730, 18 L. R. A. 412; Morrow v. Wipf, 115 N. W.
1121-1124; Montgomery v. Chelf, 118 Ky. 766, 82 S. W. 338; State v. Johnson, 87 Minn.
221, 91 N. W. 604, 840; State v. Nichols, 50 Wash. 508, 97 Pac. 728; State v. Felton, 77
Ohio St. 554-578, 84 N. E. 85; Dooley v. Jackson, 104 Mo. App. 21; 78 S. W. 333.)
The law is not mandatory in compelling candidates who may desire to get on the official
ballot to submit themselves to the primary election. They have the privilege, as heretofore
stated, of running independently if they desire. In the event they desire to submit themselves
to the primary election, it is not unreasonable or unrighteous to make them comply with any
reasonable test made by the legislature for the purpose of preserving the integrity of the party
with which they desire to affiliate. Nor do we see anything unreasonable or unrighteous in
limiting a man who desires to vote to cast his ballot for but one candidate for each office.
This is also a salutary regulation in preserving the integrity of political parties. If, after the
primary is over, an elector who has participated in the primary changes his mind and desires
to vote for some other candidate named by some other party or for an independent
candidate, there is nothing in the primary law to preclude him from so expressing his
choice at the general election.
other candidate named by some other party or for an independent candidate, there is nothing
in the primary law to preclude him from so expressing his choice at the general election. This
is the only constitutional right which he is guaranteed by the constitution of the state, in so far
as his privilege of expressing his right to designate the various officers who are to administer
the affairs of state is concerned.
Further answering this assignment of appellant, we advert to the admission of counsel for
appellant on pages 38 and 39 of his brief, wherein it is said: It may be admitted that the
legislature might require a certain qualification for office if the qualification applies to all
electors alike. A qualification for office is something that fits one for office, something all
electors must comply with before becoming a candidate. This the act without question does.
This admission of counsel tersely expresses the law on this point. It will not be questioned
that the legislature has the right to add qualifications to electors desiring to become
candidates for specified offices, so long as the added qualifications are reasonable, and not
violative of any constitutional provision.
Laws have been enacted by legislatures and have been sustained on innumerable occasions
wherein qualified electors have been required to qualify before becoming qualified candidates
for the various offices throughout the state of being property holders or of having some
especial qualification for such offices. Of course, the legislature has no authority to add
qualifications to candidates for federal offices created under the federal constitution, where
that instrument has defined the qualifications of such officers. In the consideration of this
error assigned, as in other assignments to follow, the distinction between the right to vote and
the right to hold office must not be confounded or lost sight of. An elector may be
constitutionally qualified to vote and yet be legislatively debarred from becoming a candidate
for some official position within the state.
5. It is also contended by counsel for appellant that the law is unconstitutional, in that it
prevents one from being a candidate for office if he has been defeated at a primary election.
The Supreme Court of California, in the recent case of Socialist Party v. Uhl, in disposing of
this objection raised by a petitioner of the same standing as the one at bar, expresses our
views in the following language: "The act further provides that a candidate defeated at a
primary election shall be ineligible for nomination to the same office at the same election.
of Socialist Party v. Uhl, in disposing of this objection raised by a petitioner of the same
standing as the one at bar, expresses our views in the following language: The act further
provides that a candidate defeated at a primary election shall be ineligible for nomination to
the same office at the same election. It is insisted that this provision is void. The
determination of this question may be properly reserved to a case when it arises. It is
sufficient here to say that if this provision be void this fact would not operate to invalidate the
remainder of the law. (Socialist Party v. Uhl, 155 Cal. 794, 103 Pac. 189.)
We do not deem it necessary to further consider this point other than to say that it will be
ample time for this court to consider this point when some appellant whose right is affected
by this provision comes before the court in a proper proceeding. In view of the fact that, if the
section covering this provision were declared void, it would not affect the remainder of the
law, it renders it unnecessary for us to give this point further consideration.
6. The further contention is made by counsel for appellant that the law is void, in that it
prohibits certain classes of electors constitutionally qualified from being candidates for
office. In alleging the law to be void upon this assignment of error, counsel for appellant fail
to appreciate the distinction between the constitutional requirement of an elector and the
constitutional qualification of a candidate to be voted for as an officer at the general election.
The constitution defines the qualifications of an elector, but the legislature may prescribe
reasonable qualifications for an elector who may desire to become a candidate, providing
such qualifications are not in conflict with some constitutional provisions. The qualifications
required by the primary law are not, as we view the constitution, violative of any such
requirement. While citizenship, age, sex, and residence enter into the qualifications made
necessary by the constitution to make a legal voter, yet, in addition to these, other
qualifications are essential to the efficient performance of discharging the duties connected
with almost every office; and these additional qualifications the legislature is privileged to
impose so long as they do not conflict with any constitutional requirements.
flict with any constitutional requirements. For instance, for certain offices qualifications are
imposed by the legislature that electors, before they may become candidates for such offices,
must qualify by being taxpayers or by having some qualification of ability to discharge the
peculiar functions of a particular office.
These additional qualifications imposed have been sustained on innumerable occasions as
no violation of the constitution. The cases are innumerable where qualifications not possessed
by all electors are required of candidates for office. The framers of the constitution of our
state did not intend, when they enumerated the qualifications of every elector, to make those
qualifications the test of the eligibility of the various civil officers throughout the state, and,
except in so far as the constitution has expressly provided the qualifications of the various
officers, the legislature has the unquestioned right to add additional qualifications. (Darrow v.
People ex rel. Norris, 8 Colo. 417, 8 Pac. 661.)
Chief Justice Beatty of the Supreme Court of California, in the case of Shostag v. Cator, in
treating an objection adversely to the contentions of counsel for appellant, in that the law is
unconstitutional for the reasons set forth in this assignment, very appropriately said: These
views, if correct, dispose of several other objections urged by petitioner, and relieve us of the
necessity of taking them up seriatim. We shall, however, notice some of the arguments that
have been most strongly urged upon our attention. It is contended that the test prescribed by
section 1366a is unreasonable, because, with the close of registration, the elector loses his
right to change his party allegiance in consequence of a change in political convictions, and is
precluded from taking part in the election of delegates at the convention of the party with
which on the day of the election his more matured opinions would impel him to cast in his
lot. This inconvenience certainly does result from the provisions of the act, but the legislature,
which must be presumed to have foreseen it, probably regarded such sudden conversions
during the short interval between the close of registration and the date of the primary election
as likely to be of such rare occurrence as not to justify the omission of a provision evidently
designed to prevent unscrupulous and mercenary electors from holding themselves free
down to the day of election to vote with any party, upon any corrupt motive, for the
purpose of influencing the nomination of its candidates for public office, while without
any interest in their success, and perhaps with an interest in their defeat.
omission of a provision evidently designed to prevent unscrupulous and mercenary electors
from holding themselves free down to the day of election to vote with any party, upon any
corrupt motive, for the purpose of influencing the nomination of its candidates for public
office, while without any interest in their success, and perhaps with an interest in their defeat.
If it shall sometimes happen that a conscientious voter is converted from one political faith to
another between the close of registration and the primary election, he may console himself for
the loss of his vote by the reflection that his loss is trifling in comparison to his share of the
advantage to the state of which he is a citizen, flowing from a measure which tends to prevent
a grave abuse, especially in those centers of population where the primary election law is
made obligatory. Another inconvenience suggested by the fact that in the City and County of
San Francisco one political party entitled to participate in the primary election has determined
not to hold a convention or nominate candidates is that the members of that party in this
instance, and the members of all parties in similar cases hereafter, will be deprived of the
right to vote at the ensuing primary. This inconvenience does not seem to afford valid ground
of complaint, since it amounts only to this: That the members of a party which holds no
primary election are merely prevented from interfering in the management of a party to which
they do not profess to belong. (Shostag v. Cator, 151 Cal. 604, 605, 91 Pac. 503, 504.)
7. The further contention is made by counsel for appellant that the law is void, in that it
requires the payment of certain fees as a condition precedent to becoming a candidate. There
is no merit in this contention, in view of the fact that the fee exacted is not an unreasonable
one and within the discretion of the legislature to impose upon candidates who may desire to
avail themselves of the benefit of the act. The right of the legislature to exact a reasonable fee
from candidates for office has been sustained in practically every state where a primary law
exists, upon the same principle that fees in actions at law and proceedings in courts and for
the filing and recording of documents are sustained. These cases maintain the right of the
legislature to exact fees, upon the theory that those who seek the benefit of a particular
proceeding provided by law should be compelled to reimburse the state for at least a
portion of the expense which the state incurs in maintaining the means whereby they
accomplish their desires.
who seek the benefit of a particular proceeding provided by law should be compelled to
reimburse the state for at least a portion of the expense which the state incurs in maintaining
the means whereby they accomplish their desires. (State v. Scott, 99 Minn. 145, 108 N. W.
828; Kenneweg v. Commrs., 102 Md. 119, 62 Atl. 249; State v. Nichols, 50 Wash. 508, 97
Pac. 728; Socialist Party v. Uhl, 155 Cal. 790, 103 Pac. 181.)
8. Counsel for appellant further assigns the law is void, in that it requires of officers an
oath other than and different from that required by the constitution. This contention is also
devoid of merit, in that the oath required by the constitution is an oath an officer is required to
take when he is about to enter office, as distinguished from the primary election oath, which
is one of fealty to a party, as a candidate for office, and is not regulated or imposed by the
constitution. As before stated in this opinion, a primary election is not an election in the
constitutional sense of an election of officers, but merely an election of parties to select
nominees to run for office.
Section 2 of article 15 of the constitution of Nevada provides: Members of the legislature
and all officers, executive, judicial, and ministerial, shall, before they enter upon the duties of
their respective offices, take and subscribe to the following oath or affirmation: [The oath
being set forth]. A reading of this section discloses that the constitution does not preclude
the legislature from providing an additional oath for candidates at primary elections.
(Socialist Party v. Uhl, 155 Cal. 790, 103 Pac. 181; State v. Nichols, 50 Wash. 508, 97 Pac.
728.)
The case of the State v. Findlay, 20 Nev. 198, 19 Am. St. Rep. 346, cited by counsel for
appellant, is in no way applicable to the test required in this primary law. In that case this
court very properly held that an act which attempted to prescribe the qualifications of an
elector by prohibiting Mormons from voting and requiring applicants for registration to take
an oath that they were not members of the Mormon Church was a direct violation of section 1
of article 2 of the constitution of our state, as well as violative of the federal constitution.
Unquestionably no religious test in this country can be made a qualification of an elector in
the exercise of his right of suffrage.
can be made a qualification of an elector in the exercise of his right of suffrage. The oath
required by the primary law is a reasonable one, and in no way violates any of the provisions
of the constitutions, federal or state.
9. The next point raised by counsel for appellant is that the law prohibits the nomination
of Independent' candidates, and thus shows the legislative intent to confine participation in
the primaries to parties having candidates at the last presidential election. This contention is
also devoid of merit. The primary law expressly preserves the existing law (section 1693, et
seq., Comp. Laws Nev.), wherein independent candidates and parties who may not be able to
qualify or avail themselves of the primary law may get on the official ballot by independent
action. Nowhere in the law are independent candidates prohibited from being voted for at the
general election. We believe this assignment has been so thoroughly covered in previous parts
of this opinion in answer to other objections raised that is undeserving of further comment.
We come now to a consideration of the fifty-seventh and last objection interposed by
counsel for appellant to the validity of the act in question, setting forth that the law is
unconstitutional, in this: It provides an exclusive method for obtaining a place on the official
ballot, and further provides that only those whose names are on the ballot can be voted for,
thus depriving electors of the right of suffrage. This assignment of error has more or less
been touched upon in its various aspects during the course of this opinion. Unquestionably
the legislature has not the right to preclude any qualified elector who may be qualified as a
candidate under the constitution and laws of the state from being a candidate for office. The
contention of counsel for appellant that the legislature cannot preclude an elector from voting
for any qualified elector for any office for which such elector is constitutionally qualified is
not involved in the present case, which relates only to primary elections.
We have stated in this opinion that all those candidates who may be disqualified from
participating in the right to go on the official ballot by reason of coming of voting age since
the last election or otherwise through the primary election, as provided by this act, are
legally privileged and entitled to run independently to the same extent as they were prior
to the passage of this law under the provisions of the old law regarding the rights and
election of independent candidates, which is not repealed, and thereby secure a place on
the official ballot.
provided by this act, are legally privileged and entitled to run independently to the same
extent as they were prior to the passage of this law under the provisions of the old law
regarding the rights and election of independent candidates, which is not repealed, and
thereby secure a place on the official ballot. If for any reason the law precludes a qualified
elector and candidate from appearing on the official ballot or precludes any qualified elector
from voting for any qualified candidate, the law to that extent would be unconstitutional.
However, the petitioner in this proceeding is in no position to raise this point, and until
such a proposition is presented to us by a qualified elector or candidate, who believes he is or
has been deprived of an electoral right, guaranteed him under the constitution, we do not
deem it necessary to pass upon the law in this respect until such a condition arises and is
properly before this court.
In conclusion, it is proper to observe that the political conditions of the country at the
present time show that there is a political evolution going on in the legislatures of the various
states, attempting to regulate, strengthen, and purify our political system and bring as near to
the people as the constitutions of the states of the Union will allow a more direct participation
in the selection of candidates and adoption of measures believed to be for the common good.
Nevada, in common with the majority of the states of the Union, is abreast of the times in this
legislation. In accord with our constitution and the principles herein enunciated, we believe
that the power of selecting candidates and the privilege of initiating legislation may be
brought as directly in touch with the people as it is possible to do, and that, as soon as the
present direct primary system now being initiated is perfected, the various states will adopt
this mode of selecting its nominees for office with an equal rapidity as did practically every
state in the Union, in the evolution of the effort of securing a more thorough, secret, honest,
and independent ballot, adopt the Australian ballot in substitution of the old ballot used for
practically over a hundred years.
The Australian ballot law, when it first made its appearance, was attacked as freely as the
direct primary measures are now being assailed.
are now being assailed. This practice of assailing any innovation or reform in the
old-established method of conducting the political welfare of the various parties is neither
surprising nor to be criticized or condemned. While all innovations in long-established
customs are carefully and seriously to be considered before they are to be accepted as
substitutes, and if unconstitutional to be promptly repelled unless the people see fit to amend
their constitutions, if they be declared unconstitutional, yet it would be strange and
anomalous indeed if the rapid strides and progress which civilization is making in modern
times in changing and improving older methods in almost every conceivable sphere if new
political reforms and methods were not introduced and adopted in substitution of older
established methods to keep pace with the times.
The judgment sustaining the constitutionality of the Direct Primary Law is hereby
affirmed.
____________
32 Nev. 441, 441 (1910) Prosky v. Clark
[No. 1848]
WINFIELD SCOTT PROSKY and GEORGE HAFER, Appellants, v. CHAS. CLARK, ED.
MURPHY, J. A. JACOBSON, J. H. MAYNE, BEN HAZELTINE, and P. F. McMANUS,
Respondents.
1. Assignments-Cause of Action for FraudAssignability.
Rights of action based on fraud are not assignable, but are personal to the one defrauded.
2. Champerty and MaintenanceChampertous ContractsPersons Entitled to Raise Objection.
Champerty is not a defense except between the parties to the champertous agreement whenever the
contract is sought to be enforced; and hence one sued on a contract cannot complain that one of the
plaintiffs with whom the contract was made had transferred a half interest in the contract to the other
plaintiff, and that such transfer was champertous.
3. Champerty and MaintenanceAction on ContractDefense of ChampertyNonsuit.
In an action by H. and P. on a contract between H. and defendant, a half interest in which was assigned
by H. to P., it was not ground for nonsuit that such assignment was champertous, since the champerty could
only affect the right of P.
Appeal from District Court of the First Judicial District of the State of Nevada, Lyon
Action by Winfield Scott Prosky and another against Charles Clark and others. From an
order granting a motion for a nonsuit, plaintiffs appeal. Reversed and remanded, with
directions.
The facts are sufficiently stated in the opinion.
Mack & Green, and Horatio Alling, for Appellants:
The common-law doctrine of champerty and maintenance is not in force in Nevada. As to
the general current of authority see Cyc. vol. 6, p. 850, A, B, C; Brown v. Bigne, 21 Or. 260,
28 Pac. 11; Fenn v. McCarrell, 208 Pac. 615, 57 Atl. 1108. It is the contention of the
appellants that there were present in the case of Gruber v. Baker none of the elements of
either champerty or maintenance as defined by the authorities and understood at common
law. The action was brought by Mrs. Gruber in her own name for certain relief. It transpired
upon the trial that one Pollard, owning an equal interest in the mine and desiring the same
relief sought by Mrs. Gruber, for the purpose of adjusting both demands in one suit, deeded
his interest to Mrs. Gruber, who executed to him a contemporaneous agreement to reconvey
to him in the event of her prevailing in the action his full interest, it being further agreed that
Pollard should pay his share of the expense of the litigation. It was this transaction which
Justice Murphy held to be champertous and void, and it was held by Justice Murphy and
Chief Justice Hawley that Mrs. Gruber was entitled to recover only on behalf of her interest
and nothing on behalf of the Pollard interest, Justice Murphy basing his conclusions upon the
champertous character of the transaction between Pollard and Mrs. Gruber, but Justice
Hawley predicated his decision upon our statute as to parties, holding in that connection that
Mrs. Gruber was not the real party in interest so far as the Pollard interest was concerned. The
rule applicable to the plea of champerty as a defense in general will be found in the following
cases: Cyc. vol. 6, p. 858, c. 882-2, 882-3; Ency. Pl. & Pr. vol. 4, p. 370; Courtright v.
Burnes, 13 Fed. 317, and exhaustive note to same by Seymour D. Thompson; Robertson &
Hobbs v. Cayard, (Tenn.) 77 S. W. 1056; Burnes v. Scott, 117 U. S. 582, 29 L. Ed. 991.
Samuel Platt, for Respondents:
The common-law English doctrine of champerty exists in full force and effect in Nevada.
It is taken for granted that appellants do not deny the adoption by our state constitution of the
common law of England as the basis of our system of jurisprudence. (Comp. Laws, act
adopting the common law of England, 3095, sec. 1, 1900; Hamilton v. Kneeland, 1 Nev. 40;
Clark v. Clark, 17 Nev. 124; Evans v. Cook, 11 Nev. 69; Ex Parte Blanchard, 9 Nev. 105
Gruber v. Baker, 20 Nev. 453; Comp. Laws, 4788, Common Law Crimes, sec. 151 defining
punishment therefor.) That there is no statute existing in this state repealing, modifying or in
any particular rejecting the common-law doctrine of champerty and maintenance, is to be
presumed, by the failure of appellants to cite such, and the like inability on the part of
respondents to discover any. (Gruber v. Baker, 20 Nev. 453.) As to whether or not the
common law of England, and its doctrines, is operative and in force in other states, it is a
well-settled principle in this country that it is presumed to be in force, and to be the same as
the common law of the forum. (See cases cited Cyc. vol. 8, p. 387, note 34; McKennon v.
Winn, 1 Okl. 327, 22 L. R. A. 501, note.)
Champerty, which is an aggravated species of maintenance, is a common-law offense,
having its origin under the Roman law, and did not depend, for its existence, upon statutory
enactments in England; such statutes as were subsequently enacted were in substance merely
declaratory of the common-law doctrine, the fundamental principles of the law upon the
subject being well established prior thereto. (Thallhimer v. Brinckerhoff, 3 Cow. 623, 15 Am.
Dec. 308, citing Code, bk. 2, tit. 59, Dig. bk. 5, tit. 1, 89; Huber, Praelect, 457, 1478; Inst. bk.
4, tit. 16; Inst. bk. 4, tit. 1, 33; Wood, Civ. L. 341; Statute of Westm. 1, c. 25; 3 Edw. I; 28
Edw. I, c. 11; 33 Edw. I; 32 Hen. VIII, c. 9; Johnson v. Van Wyck, 4 App. Cas. 294, 41 L. R.
A. 520, 22 Wash. Law Rep. 713.)
That an agreement by a third person (other than an attorney) to defray the expenses of a
suit in which he has no interest, or to give substantial support in aid thereof, in consideration
of a share of the recovery, is champertous, see Wheeler v. Pounds, 24 Ala. 472; Byrd v.
Odem, 9 Ala. 755; Meeks v. Dewberry, 57 Ga. 263; Coleman v. Billings, S9 Ill. 1S3; Brown
v. Beauchamp, 5 T. B. Mon.
Wheeler v. Pounds, 24 Ala. 472; Byrd v. Odem, 9 Ala. 755; Meeks v. Dewberry, 57 Ga. 263;
Coleman v. Billings, 89 Ill. 183; Brown v. Beauchamp, 5 T. B. Mon. 413, 17 Am. Dec. 81;
Gammons v. Johnson, 76 Minn. 76, 78 N. W. 1035; Taylor v. Gilman, 58 N. H. 417; Lyon v.
Hussey, 82 Hun, 15; Campbell v. Jones, 4 Wend. 431.
Both in England and the United States agreements founded upon considerations tainted
with champerty or maintenance are regarded as against public policy and void. (Irwin v.
Curie, 171 N. Y. 409, 58 L. R. A. 830; Gruber v. Baker, 20 Nev. 453; Brindley v. Brindley,
121 Ala. 429, 25 South. 751; Johnson v. Van Wyck, 4 App. Cas. 294, 41 L. R. A. 520, 22
Wash. Law Rep. 713; Geer v. Frank, 179 Ill. 570, 45 L. R. A. 110, affirming 79 Ill. App.
195.)
That the doctrine of champerty is likewise operative and in force, covers the same facts as
involved in the case at bar, and is under the same common-law definition, see Gilman v.
Jones, 87 Ala. 691, 697, 4 L. R. A. 113; Holloway v. Lowe, 7 Port. 488, 490; Byrd v. Odem, 9
Ala. 755, Wheeler v. Pounds, 24 Ala. 472.
That such champertous contracts are illegal and void, see Brindley v. Brindley, 121 Ala.
429, 25 South. 751.
Mack & Green, for Appellants, in reply:
An examination of other authorities will disclose that in the following states the doctrine
of champerty is held not to come within the general adoption of the common law, because of
the unsuitability of that doctrine to conditions of today: Fenn v. McCarrell, 57 Atl. 1108;
Casserleigh v. Wood, 14 Colo. App. 265, 59 Pac. 1024; Wright v. Meek, 3 G. Gr. 472;
Bentinck v. Franklin, 38 Tex. 458; Mott v. Small, 20 Wend. 212; Sedgwick v. Stanton, 14 N.
Y. 289; Schaferman v. O'Brien, 28 Md. 565, 92 Am. Dec. 708; Schomp v. Schenck, 40 N. J.
L. 195; Richardson v. Rowland, 40 Conn. 572; Lytle v. State, 17 Ark. 609.
This is an appeal from an order granting a motion for a nonsuit. The action was brought by
the appellants, as plaintiffs, against the above-named respondents to recover possession of an
undivided one-fourth interest in and to certain mining claims situated in Ramsey District,
Lyon County, under and by virtue of a certain written contract alleged to have been
entered into between the appellant George Hafer and certain of the above-named
respondents.
sion of an undivided one-fourth interest in and to certain mining claims situated in Ramsey
District, Lyon County, under and by virtue of a certain written contract alleged to have been
entered into between the appellant George Hafer and certain of the above-named respondents.
The motion for nonsuit was granted upon the sole ground of an alleged champertous contract
entered into between the appellants prior to the commencement of the action under the
provisions of which the said appellant Winfield Scott Prosky was granted a one-half interest
of the property rights of the said appellant George Hafer in the property in controversy.
In the view we take of this case, it is unnecessary to determine the question whether the
agreement entered into between appellants Prosky and Hafer was in fact champertous, nor to
determine the extent to which the doctrine of champerty prevails in this state. The case of
Gruber v. Baker, 20 Nev. 453, 9 L. R. A. 302, so much relied on by counsel for respondent,
presented a somewhat different legal proposition than that involved in this case; besides, the
point that we deem controlling here does not seem to have been presented in that case at all.
Rights of action based on fraud, like that assigned by Pollard in the Gruber case, are held by
the courts to be not assignable, but are personal to the one defrauded. See authorities cited
and quoted from in the opinion of Murphy, J., in Gruber v. Baker, supra, 20 Nev. 469, 470, 9
L. R. A. 302; and see, also, the following authorities: Bigelow on Fraud, pp. 346-350; Brock
v. Rogers, 184 Mass. 545, 69 N. E. 334; Simar v. Canaday, 53 N. Y. 298, 13 Am. Rep. 523;
Shaw v. Gilbert, 111 Wis. 165, 195, 86 N. W. 188; Lame v. Frawley, 102 Wis. 373, 78 N. W.
593; Norton v. Tuttle, 60 Ill. 130; 20 Cyc. 82. In this case the contract entered into between
Hafer and certain of the defendants, and which forms the basis of this action, was not itself
tainted with fraud. He could make a valid assignment of all or a portion of his interest, and
such assignment might or might not be of a champertous character.
No matter what the circumstances of the assignment of the right of action growing out of
the fraud may be, it is held to be against public policy, and by some authorities is said to
savor of the character of maintenance. This rule is applied even in jurisdictions which do not
recognize the common-law doctrine of champerty and maintenance growing out of the
old English statutes.
even in jurisdictions which do not recognize the common-law doctrine of champerty and
maintenance growing out of the old English statutes. The reason for the enactment of the
English statutes of champerty and maintenance having very largely ceased to exist, the extent
to which the doctrine is applied varies greatly in different states. Some states, for example
California, have refused to recognize it at all. Others, like New York, have enacted statutes
which have either abolished the old rule or greatly limited its application. The doctrine,
however, is in force to a greater or less extent in the majority of jurisdictions.
The great weight of authority is to the effect, however, that the rule rendering contracts
void for champerty, cannot be invoked except between the parties to the champertous
agreement in cases where such contract is sought to be enforced. (Burnes v. Scott, 117 U. S.
582, 6 Sup. Ct. 865, 29 L. Ed. 991; Courtright v. Burnes, 13 Fed. 317, and note; Gage v. Du
Puy, 137 Ill. 652, 24 N. E. 541, 26 N. E. 386; Torrence v. Shedd, 112 Ill. 466; Henderson v.
Kibbie, 211 Ill. 556, 564, 71 N. E. 1091; Vimont v. C. & N. Ry. Co., 69 Iowa, 296, 22 N. W.
906, 28 N. W. 806; Ellis v. Smith, 112 Ga. 480, 37 S. E. 739; Ry. Co. v. Smith, 60 Ark. 221,
29 S. W. 752; Woods v. Walsh, 7 N. D. 376, 75 N. W. 767; Davis v. Settle, 43 W. Va. 17, 26
S. E. 557; Isherwood v. Jenkins L. Co., 87 Minn. 388, 92 N. W. 230; Pennsylvania Co. v.
Lombardo, 49 Ohio St. 1, 29 N. E. 573, 14 L. R. A. 785, and note; Croco v. Oregon Short
Line R. R. Co., 18 Utah, 311, 54 Pac. 985, 44 L. R. A. 285; Euneau v. Rieger, 105 Mo. 659,
16 S. W. 854; Hilton v. Woods, L. R. 4 Eq. Cas. 432; Elborough v. Ayres, L. R. 10 Eq. Cas.
367; 6 Cyc. 880; 19 Cent. L. J. 402; 5 Am. & Eng. Ency. Law, 2d ed. 832.)
If the contract between Prosky and Hafer was unexecuted and was in fact champertous, in
a suit by Prosky against Hafer to enforce the contract, the latter might set up the defense that
the contract was void for champerty. Such, however, is not this case. There is no controversy
between the plaintiffs, and whether the suit is conducted in the name of Hafer alone or in his
name and that of his grantee or assignee is of no consequence to defendants. (Gage v. Du
Puy, supra.) Upon the other hand, conceding, for the purposes of this case, that the contract
between Hafer and Prosky was void for champerty, only the alleged right of action of
Prosky would be affected.
that the contract between Hafer and Prosky was void for champerty, only the alleged right of
action of Prosky would be affected. All the right of action was held either by Hafer alone, or
by Hafer and Prosky jointly. In either event, a motion for a nonsuit could not be supported
upon the theory that the conveyance or assignment from Hafer to Prosky was void for
champerty.
The judgment and the order granting the motion for a nonsuit are reversed, and the cause
remanded, with directions to the trial court to deny the motion for nonsuit and for further
proceedings.
____________
32 Nev. 447, 447 (1910) Arnold v. Goldfield Third Chance Mining Co.
[No. 1863]
MARVIN ARNOLD, Respondent, GOLDFIELD THIRD CHANCE MINING COMPANY, a
Corporation, Appellant.
1. Mines and MiningMining ClaimsNature of Property.
A mining claim is real property.
2. FixturesMining Appliances.
Engines, boilers, hoisting works, mills, pumps, and the like annexed to the soil for mining are fixtures.
3. FixturesAgreement Between Seller and BuyerRights of Third Persons.
Where a buyer of chattels under a contract stipulating that the same shall be regarded as the personal
property of the seller, with the right of removal until paid for, attaches the property to real estate so as to
make the same fixtures, the chattels are fixtures against every one except the seller, and a judgment creditor
of the buyer and a purchaser at an execution sale may not claim the property as personal property by virtue
of the contract.
An electric hoist firmly bolted to the substructure on which it rests, and the superstructure and
engine-house surrounding it, sufficiently affixed to the soil for mining purposes, are fixtures.
A gallows frame at a mine, the base of which was originally sunk into the earth only far enough to make it
level and substantial for use for mining, and subsequently covered to a depth of several feet with rock and
earth taken from the mining shaft and dumped around it, together with the gallows, hoist, and transformers,
forming integral parts of one mechanism essential to the operation of the mine, are fixtures.
6. ExecutionFixturesSalesValidity.
A sale of property as personal property at an execution sale is invalid where any of the articles sold were
fixtures.
Action by Marvin Arnold against the Goldfield Third Chance Mining Company. From an
order denying a motion to vacate a sale on execution against defendant, it appeals. Reversed
and remanded.
S. Wyman Smith, for Appellant:
I. The proper rule in regard to fixtures is that if articles are essential to the realty, having
been applied exclusively to use in connection with it, are necessary for that purpose, and
without such or similar articles the realty would cease to be of value, then they may properly
be considered as fixtures and pass with it. (Hoyle v. Plattsburg & M. R. Co., 51 Bar. 45; Cary
Hardware Co. v. McCarthy, 50 Pac. 744.) Whether fast or loose, all the machinery of the
manufactory which is necessary to constitute it, and without which it would not be a
manufactory at all, is a part of the freehold as between vendor and vendee, debtor and
execution creditor. (Voorhis v. Freeman, 37 Am. Dec. 490; Gray v. Holdship, 17 Am. Dec.
680; Pres. of Union Bank v. Emerson, 15 Mass. 159.)
II. Anything intended to remain permanently in its place, if not attached to the land, is a
fixture, such as rail fence. (Smith v. Odom, 63 Ga. 49.) A cistern placed by the side of the
house and depended upon to supply water for the premises, is a fixture. (Cole v. Reach, 37
Tex. 413.) Machinery held down by its own weight is a fixture. (Farrar v. Stackpole, 19 Am.
Dec. 201, note; Corless v. McLagen, 29 Me. 115; Parsons v. Copeland, 33 Me. 537;
Burnside v. Twitchel, 43 N. H. 390; Voorhis v. Freeman, 37 Am. Dec. 490, note.)
III. The term real estate shall be deemed and taken to mean and include, and it is hereby
declared to mean and include, all houses, buildings, fences, ditches, structures, erections,
railroads, toll roads and bridges, or other improvements, built or erected upon any land,
whether such land be private property; or property of the state or the United States. From this
definition, it will be seen that even in the absence of the decisions quoted above, that
according to the terms of the above definition that the buildings, gallows frames, hoists,
transformers, ore car, etc., came within the definition of real estate.
decisions quoted above, that according to the terms of the above definition that the buildings,
gallows frames, hoists, transformers, ore car, etc., came within the definition of real estate.
From a careful consideration of all the authorities stated above, there is only one conclusion
to reach, from the facts as found by the judge in his ruling on motion and as appears from the
affidavit on file, that all of the said articles are fixtures.
James K. Reddington, for Respondent:
I. There is perhaps no branch of legal inquiry in which so many varying expressions of the
courts, obiter and otherwise, can be found as that relating to the fixtures as distinguishable
from personal property. It would be useless to attempt to follow and reconcile them, in their
vicarious wanderings, explainable only on the theory that no two cases are precisely alike.
Through all of these cases, however, runs one common and accepted doctrine, to wit, that, in
order to change the character of personalty to that of real estate, there must be some actual or
constructive annexation or affixing of the same to the soil. This is the old common-law
doctrine which has been retained and preserved as the groundwork and the foundation of all
the modern decisions. Indeed, it is safe to assert that not a decision can be found which,
reduced to its last analysis, does not rest upon the principle above stated. In other words, an
article, to become a fixture, must, in some way, by some physical act, be affixed or attached
to the realty, either actually or by such a physical fact as to amount to legal constructive
annexation. There must always be some physical attachment of the personal property to the
realty. As a summary of the general authorities on this point and the leading case in Nevada,
we cite the following: Physical attachment of a chattel to the realty is necessary to render it
part of the realty. (Am. & Eng. Ency. Law, vol. 13, p. 600, and cases there cited, including
English authorities and cases in eighteen states; Brown v. Lillie, 6 Nev. 344.) An attachment
merely for the purpose of steadying machinery, or for more convenient use, does not make it
a fixture. (Am. & Eng. Ency. Law, vol. 13, p. 608, note 1, and cases there cited, including
Canada and ten states.)
cited, including Canada and ten states.) So, too, it must be attached by the owner of the
personal property or with concurrence or assent. (March v. McCoy, 36 Cal. 85; Shoemaker v.
Simpson, 16 Kan. 420; C. P. R. R. Co. v. Fritt, 20 Kan. 420; Mich. M. L. Co. v. Cronk, 93
Mich. 49.)
II. A building erected upon public land, merely resting on blocks, is not a part of the public
lands and can be removed by the person placing it there. (Pennypacker v. McDougall, 48 Cal.
460.)
III. Counsel for appellant cites as containing a definition of real estate applicable to the
case at bar, section 1082 of the Compiled Laws of Nevada, and, in citing and quoting that
section, misquotes it, by leaving out a clause which expressly excludes its application to this
case. This section is found in the compilation under the title of Revenue, Taxes and
Licenses, and is a reprint of the act of March 3, 1891, entitled An act to provide revenue for
the support of the government of the State of Nevada, and to repeal certain acts relating
thereto. The entire act relates only to the subject of raising revenue by taxation and licenses,
and, to classify different species of property, for that purpose only, designates what shall be
termed real estate and what personal property. To sustain his claim that the definition of
real estate given in this statute settles the question at bar, counsel, in his brief, thus quotes
the statute: The term real estate' shall be deemed and taken to mean and includes. The
section, as it actually reads, supplying what counsel has been pleased to omit, is as follows:
The term real estate,' when used in this act, shall be deemed and taken to mean and
include, etc. If the rest of counsel's brief is as reliable and trustworthy as the above, it will be
found a very valuable aid to this court in its determination of the case.
IV. The evolution of the original common-law doctrine on the subject has resulted in the
now established rule that a chattel only becomes a fixture, and as such part of the realty, upon
the coexistence of the following conditions: (1) An annexation to the soil, either actual or
constructive; (2) An adaptation of the article so annexed to the use and purposes of the realty;
(3) An intention that such annexation should be permanent, such intentions to be
ascertained from all the circumstances of the case.
be permanent, such intentions to be ascertained from all the circumstances of the case. (Am.
& Eng. Ency. Law, vol. 13, p. 600, citing cases from twenty states; Cyc. vol. 19, pp. 1038,
1039; Amos and Ferard on Fixtures, p. 2; Ewell on Fixtures, pp. 13, 14, 18 to 21; Walker v.
Sherman, 20 Wend. 636, 655; Teaff v. Hewitt, 1 Ohio St. 511; Walford v. Baxter, 33 Minn.
12-18.)
This is an appeal from an order made after final judgment denying a motion to set aside
and vacate a sheriff's sale upon execution, issued against the above-named appellant. The
respondent herein recovered judgment in the lower court against appellant for the sum of
$1,098. Thereupon execution was issued, and on the 7th day of July, 1909, under and by
virtue of such execution, the sheriff of Esmeralda County sold as personal property of the
defendant, appellant herein, one thirty-horsepower electric hoist; one frame building inclosing
said hoist; one gallows frame, including crosshead and sheave wheel; one ore car; one
engine-house; one blacksmith shop; three transformers, and one transformer house. The
foregoing property was sold in one lot for the lump sum of one hundred and twenty-five
dollars.
The motion to set aside and vacate the sheriff's sale under execution was based upon the
ground that all of said property, or at least the greater portion thereof, constituted fixtures, and
hence could not be sold as personalty. The question involved here is whether or not the
buildings, hoist, motor, and transformer, or any of them, constitute fixtures as that term is
understood in the law. If they, or any of them, are fixtures, then the sheriff's sale was void,
and the order of the trial court should be reversed.
The motion to set aside the sale was supported by the affidavit of the president and general
manager of the defendant and appellant corporation. His affidavit sets forth the condition of
the property in question at the time of the sale to have been as follows: That the said electric
hoist was firmly attached by bolts into a four-foot foundation, consisting of timber and
cement and embedded in the ground. That the said gallows frame, of which the crosshead
and sheave wheel form an integral part, was firmly embedded in the ground in six or eight
feet of dirt.
said gallows frame, of which the crosshead and sheave wheel form an integral part, was
firmly embedded in the ground in six or eight feet of dirt. That the engine-house and
blacksmith shop were buildings firmly attached to the ground. That the three transformers
were firmly bolted and affixed to the ground, and that the transformer house as affixed to the
ground.
The plaintiff, in opposition to the motion, offered a number of affidavits.
From the affidavit of Emory J. Arnold, the purchaser at the execution sale, we quote the
following: The electric hoist was in the engine-house, standing upon a piece of framework
or cribbing. It was in no way attached or affixed to the said framework or to the building. It
was not attached by bolts or otherwise into a four-foot foundation or any foundation
consisting of timber or cement or any other material embedded in the ground or otherwise.
The gallows frame, with crosshead and sheave wheel, was in place over the shaft, and was
not, and is not, firmly embedded in the ground in six or eight feet of dirt. It is not attached or
affixed to the ground. The engine-house, which was built around and to cover the electric
hoist, is a wooden building on sills, which sills are simply laid on the ground and leveled up
with blocks and stones. It is in no way attached or affixed to the ground. The blacksmith shop
is also a small wooden structure placed on sills which are laid on the ground without either
blocks or stones. It is in no way attached or affixed to the ground. The transformer house is
also a small wooden building erected on sills laid on the ground, and leveled up by blocks or
stones, and is in no way attached to the ground. The three transformers stood, and now stand,
upon the floor of the transformer house, and are not attached or affixed, in any way, to the
said house or the ground.
The affidavit of S. G. Errett, in opposition to the motion, was to the following effect:
That upon the 3d day of August, 1909, he made a careful examination upon the ground of
the buildings and other improvements situated on the Third Chance mining claim, Goldfield
Mining District, Nevada. The electric hoist was not then upon the premises. It formerly stood
in the engine-house.
stood in the engine-house. It stood upon a base or substructure, consisting of a frame or piece
of cribbing seven feet ten inches in length, and seven feet six inches in width. This frame is
constructed at the top of 2x8 inch timber, held together in each corner and in the middle of
each side, where there is a cross-timber two inches by eight inches in size, by beams slipped
over bolts, without nuts, such bolts running from the bottom to the top of such structure and
extending about three and one-half inches above the top of the structure. The frame is
partially above and partially below the floor of the engine-house, which floor is constructed
around it, and was evidently built after the framework. The frame is partially above and
partially below the surface of the earth. The bolts are without nuts, which have, at some time,
been removed by splitting. The ends of one of the bolts show evidence of having been cut in
the splitting of said bolts, and several pieces of split nuts are lying on the floor near the frame.
The hoist evidently stood originally on the framework secured by these bolts, and was
evidently at some time removed by cutting the nuts and raising the machinery from the bolts.
The gallows frame is about thirty-two feet high; sills thirty-three feet long of 8x8 inch
timber; braces of 6x6 inch timber; crosshead and sheave wheel being in place over the shaft.
The gallows frame is placed in position on the brow of a hill. The sills rest upon the posts;
such posts at the westerly end of the frame being over the slope of the hill and extending from
the hill to the ground. The space in and around the gallows frame has been partly filled in,
evidently by dumpings from the shaft.
The engine-house * * * is set upon sills of timber two inches by four inches in size,
which sills are simply laid upon the ground and leveled up by blocks or stones. It is in no way
attached or affixed to the soil. The house could be removed by simply lifting it from the
ground.
The blacksmith shop * * * rests upon sills of 2x4 inch timber simply laid upon the
ground. There is no floor. The house is in no way attached or affixed to the soil. It could be
removed by simply lifting it from the ground.
The transformer house * * * is built on sills of timber two inches by four inches in size,
which sills are simply laid on the ground and leveled up with blocks or stones.
ber two inches by four inches in size, which sills are simply laid on the ground and leveled up
with blocks or stones. It is in no way attached or affixed to the soil. It could be moved at any
time by simply lifting it from the ground. The three transformers are in the transformer house,
last above described. They simply stand upon the floor of the house, and are in no way
attached or affixed to the house or ground.
The affidavit of E. A. Quinn, in opposition to the motion, set forth that under and by virtue
of a certain written contract, of date November 27, 1906, the Nevada Power, Mining and
Milling Company agreed to sell to the said defendant, Goldfield Third Chance Mining
Company, the electric hoist, motor and transformers here in question for the sum of $2,750,
payable one-third cash and the balance in deferred payments, the contract specifying that the
title and right of possession to the said electric apparatus remains in the said power company
until all payments shall be fully made, and that said apparatus shall remain the personal
property of said power company whatever may be the mode of its attachment to the realty or
otherwise, until fully paid for in cash. That a few days prior to the 30th day of July, 1908, the
said power company, under the terms of said contract, entered into the said premises where
said property was located, and removed the same therefrom as its property. That
subsequently, to wit, on the 30th day of July, 1908, a settlement of said matter was made
between said companies, and immediately thereafter, and during the first week in August,
1908, said machinery and material were returned by the said power company to the said
Goldfield Third Chance Mining Company and placed in its position on said Third Chance
mining claim.
What appears in the various affidavits, to the effect that the buildings and machinery were
or were not attached or affixed to the realty, may be regarded as mere expressions of opinion
or of little or no weight as evidence, in view of the fact that there is no substantial conflict in
the evidence as to the manner in which the buildings and machinery were actually situated
upon the ground. We think the lower court erred in holding that none of this property sold
under the execution could be regarded as a fixture.
execution could be regarded as a fixture. It is well settled that a mining claim is real property,
and it cannot be disputed that a lode mining claim cannot be successfully operated without
the use of buildings or machinery of a character similar to that involved in said sale.
Lindley in his work on Mines (2d ed. vol. 1, sec. 409) says: It is unnecessary to enter into
a detailed discussion of what constitute fixtures. It has been frequently held that machinery,
such as engines, boilers, hoisting works, mills, pumps, and things of a like character annexed
to the soil for mining, become part of the freeholdciting Merritt v. Judd, 14 Cal. 60;
Treadway v. Sharon, 7 Nev. 37; Roseville Alta M. Co. v. Iowa G. M. Co., 15 Colo. 29, 24
Pac. 920, 22 Am. St. Rep. 373.
In the case of Treadway v. Sharon, supra, this court held that a boiler, engine, and
machinery, constituting a part of a steam sawmill put upon the land for the purpose of sawing
up the timber thereon which had its foundation planted in the ground and the engine, boiler,
and machinery were attached by bolts, shafts, and belts to the framework which was built
upon such foundation, were fixtures, although it appeared that there was but a limited supply
of timber on the land upon which the sawmill was put, and that it was the intention to remove
the sawmill as soon as the timber was sawed. This court in that case said:
Now, every sawmill may, sooner or later, exhaust the available timber in its immediate
vicinity, yet it would hardly be contended that a sawmill as such is always and necessarily a
chattel. That all the available or in a quartz lode may be extracted is as true as that all the
available timber near a mill may be sawed; and it rarely, if ever, happens that the machinery
first erected on a ledge is suited or intended to do the work of hoisting and pumping from the
deeper workings, which favorable developments may induce. Yet ever since the great case of
Fisher v. Dixon it has been settled law that machinery annexed to the soil for mining becomes
part of the soil, and in Merritt v. Judd, 14 Cal. 60, a small steam engine and pump were
adjudged to be fixtures. If it was the intention in the latter case to work the ledge to any great
depth, it must also have been the intention to replace this small engine and pump with
others, larger and of greater power.
and pump with others, larger and of greater power. It cannot be, then, that an intention to
remove at any time, however remotefor instance, when the greatest depth consistent with
profitable working shall have been attained, or whenever more powerful machinery must be
usedcontrols the act of annexation, or rebuts the presumption that thereby the chattel is
made a part of the land.
Then where shall the line be drawn? If a steam pump calculated to drain the mine to a
depth of five hundred feet or a mill with timber for three years' sawing remain chattels, with
how much power would the engine and with how much timber would the mill become a
fixture? The mill in question, a large, well-equipped, and perfectly appointed steam mill, was
actively operated nearly three years. The same body of timber might have supplied a smaller
mill, poorly constructed, for many years. Would the latter become real estate, and the former
remain a chattel? That it is the annexation, and not the intention, which controls in such a
case as this, is shown by the law as to young trees temporarily set out in a nursery and
intended for transplantation and sale. These are part of the realty; at common law, go with the
land to the heir, and pass to a vendee of the land. (Maples v. Millon, 31 Conn. 598; Lee v.
Ridson, 7 Taunton, 188; Smith v. Price, 39 Ill. 28, 89 Am. Dec. 284.)
In the case of Merritt v. Judd, supra, an engine and pump situated upon the quartz lead
and attached in the following manner: Two timbers, ten or twelve feet long, and from two
feet to thirty inches in diameter, were placed side by side upon the ground. They were only
bedded in the ground sufficiently to make them level. On these bed timbers were placed a
frame of four timbers, each about eight inches in diameter, the side timbers about seven feet
long, and the end ones about three feet. These frame timbers were bolted or spiked together,
and bolted or spiked to the bed logs. The boiler of the engine was spiked or bolted to this
frame. The engine rested on the frame beside the boiler. The boiler, engine, and pump were
attached together by the usual connections; the pump itself extending into the shaft. Over the
whole was a roof or shed, which was constructed merely for the protection or shelter of
the machinery.
whole was a roof or shed, which was constructed merely for the protection or shelter of the
machinery. The machinery was not attached to the building in any way, except that the pump
was stayed by rods, reaching to the rafters of the roofwere held to be fixtures.
The case of Roseville Alta M. Co., supra, is a case very similar to the one at bar, in that the
question involved in that case was whether a fifteen-horsepower engine and boiler, including
smokestack, rope, and hoist, were, liable to sale on execution as personal property, the same
being situated upon and used in the operation or development of a mining claim. The articles
in question were in the following situation: On the claim was constructed an engine-house, a
shafthouse, and shed. Within the engine-house was erected the engine, placed upon three sets
of timbers laid crosswise and lengthwise, sunk in the ground and earth tamped around them,
and on these was placed a frame that the engine stood on which was bolted down to the
timbers. The boiler was set about three feet from the engine on rockwork, and connected with
the engine by the ordinary connections. The judgment of the lower court holding that the
said engine and boiler were so attached to the land as to become fixtures and as such to be
exempt from sale under the execution as personal property was affirmed.
The court, after citing and referring to the facts involved in the case of Merritt v. Judd,
supra, said: The court in its opinion, after carefully reviewing a number of authorities,
concluded as follows: We think that the principle to be extracted from the modern cases
covers the case at bar; that this apparatus was necessary to the working of the ledge; that it
was attached for that purpose permanently to the soil, and its use accessory, if not essential, to
the inheritance for its only valuable purposethe extraction of the gold.' Such seems to be
the situation of the property here in controversy. It must be admitted that, in order to enjoy the
benefits of the mining claim, to develop the mine, and bring to the surface the ore, the engine
and boiler here sought to be recovered were absolutely essential. Many cases can be found in
the books in which a similar connection with realty made by the owner thereof has been
considered a sufficient annexation.
thereof has been considered a sufficient annexation. (Oves v. Ogelsby, 7 Watts, 106; Merritt
v. Judd, supra, and cases cited; Noble v. Bosworth, 19 Pick. 314.)
The trial court in its opinion rendered upon the motion expressed some doubt as to
whether the electric hoist, considered apart from the contract of their sale, ought not to be
regarded as a fixture, but expressed the view that as the defendant company had agreed with
the power company that it should be regarded as the personal property of the power company,
with right of removal until fully paid for, it was not in a position to claim the property to be a
fixture. In this view we are unable to agree with the trial court. As against every one other
than the power company, we think the defendant company had a right to claim the hoist as a
fixture. (Prescott v. Wells-Fargo Co., 3 Nev. 82.) The plaintiff and the purchaser at the
execution sale certainly could not, we think, claim the hoist to be the personal property of the
defendant by virtue of the contract with the power company, for so far as that contract had
any force, by virtue of its terms, the hoist was the property of the power company until fully
paid for.
This court in Prescott v. Wells-Fargo Co., supra, by Beatty, C. J., said: In my opinion
property is either real or personal, according to its nature. Contract cannot make a chattel
realty or realty a chattel. * * * But, if mere contract can convert potash kettles built into a wall
in such a manner as to be firmly attached to the freehold, then it can also convert sawmills
and granite walls into personalty. In my opinion, all fixtures whilst attached to the freehold
are for the time being a part of the realty. No contract can change their nature. It is true there
may be a contract allowing some one to take them off. Indeed, unless there be some contract,
law, or custom allowing such removal, they are not technically fixtures.
At the time of the execution sale, the hoist was firmly bolted to the substructure upon
which it rested. So firmly was it bolted that subsequently, when the power company assumed
to exercise its right of removal, it apparently found it necessary to cut the nuts from the bolts.
It is quite manifest that the hoist, including its superstructure and the engine-house
surrounding it, were as firmly affixed to the soil as their necessities required, and
sufficiently so, considering the purpose for which they were used, to constitute the same
fixtures.
the hoist, including its superstructure and the engine-house surrounding it, were as firmly
affixed to the soil as their necessities required, and sufficiently so, considering the purpose for
which they were used, to constitute the same fixtures.
The gallows frame, we think, was clearly a fixture. Even if its base had not been originally
sunk into the earth further than to make it level and substantial for its use, we think would
make no difference in this case. It is shown, however, that the case was covered to a depth of
several feet with rock and earth taken from the shaft and dumped around it. This waste rock
and earth did not cease to be a part of the soil simply because it had been removed from the
shaft and its location changed. The gallows, hoist, and transformers were all connected and
integral parts of one mechanism, essential to the operation of the realty as a mine, and are
fixtures. It is unnecessary to determine whether all of the property sold at the execution sale
constituted fixtures. It is sufficient to invalidate the sale if any of the articles so sold were
fixtures.
Other questions raised upon the record it is unnecessary to determine.
The order appealed from is reversed, and the cause remanded, with directions to the trial
court to enter an order vacating the sheriff's sale.
____________
32 Nev. 460, 460 (1910) Levy v. Ryland
[No. 1874]
WILLIAM LEVY, Appellant, v. RICHARD RYLAND, Respondent.
1. PleadingDemurrerDeterminationAssuming Truth of Facts.
In considering a complaint on demurrer, the facts alleged are assumed to be the truth.
2. TruthsResulting TrustPayment of Consideration for Conveyance to Another.
Where two persons purchase real estate, and title is taken in the name of one, a trust results in the other's
favor.
3. TrustsResulting TrustsPossession of PropertyAdverse Possession.
In case of a trust resulting from the purchase of real estate by two persons and the taking of title in the
name of one, the latter's possession is considered in law that of the trustee, and his possession as trustee is
the possession of the cestui que trust.
4. TrustsResulting TrustsPleading Agreement Creating.
A mutual agreement between plaintiff and defendant to purchase land, each to pay half the price and own
and undivided half interest, the title to be taken in the name of the defendant, who was to thereafter deed an
undivided half interest to plaintiff, pursuant to which defendant purchased the property receiving the title in
his own name, and plaintiff paid defendant half the price, created a resulting trust in plaintiff's favor.
5. TrustsResulting TrustPayment as Element Thereof.
Where the entire amount necessary to purchase land is advanced at the time of the purchase by one taking
title, with an understanding previously had with another that the purchase should be for their joint benefit,
the part advanced by him is a loan by him to the other which is an actual payment in the other's behalf
sufficient to bring the transaction within the rule that payment must be made at or about the time of the
purchase to effectuate a resulting trust.
6. TrustsContract Creating Resulting Trust.
Where a resulting trust is created by the purchase of land in the name of one person for the joint benefit
of himself and another, the contract on which it is based is not within the statute and need not be in writing.
7. Frauds, Statute ofPleadingDemurrer.
Since it will be presumed till the contrary appears that a contract within the statute on which suit is based
is in writing, where the complaint is silent as to whether it is oral or written, to invoke the statute to defeat
the action it must be pleaded by answer and cannot be raised by demurrer.
8. TrustsAdverse Possession by a Trustee.
The statute of limitations does not run against a resulting trust in favor of the trustee because the trustee's
possession is deemed in law the possession of the cestui que trust.
32 Nev. 460, 461 (1910) Levy v. Ryland
9. Limitation of ActionsAccrual of Right of ActionStatute as Running Against Trust.
The statute does not begin to run against a trust till it has been openly disavowed by the trustee, insisting
on an adverse right and interest, clearly and unequivocally made known to the cestui que trust.
10. Limitation of ActionsWhen Statute Begins to RunDiscovery of Fraud or Mistake.
The statute does not begin to run against an action by a cestui que trust until the time of the discovery by
the latter of fraud or mistake on which it is based.
11. TrustAction Based on Resulting TrustComplaint.
Where, on an action based on an alleged agreement creating a resulting trust in a lot purchased by
defendant, the first paragraph of the complaint alleges the agreement to purchase a certain lot in block W
in the City of Reno, and the second paragraph alleges the purchase pursuant to that agreement of lot 9 in
block W, which is the alleged description of the lot in question, the complaint clearly alleges a prior
mutual agreement wherein defendant should purchase for the joint benefit of himself and plaintiff a certain
lot in block W in such city, and the purchase pursuant thereto, which was sufficient to properly connect
the issues of the subject-matter of the agreement and the purchase pursuant thereto as referring to one and
the same transaction.
Suit by William Levy against Richard Ryland. From an order sustaining a demurrer to the
complaint, and from a judgment dismissing it on refusal to amend, plaintiff appeals.
Reversed.
Mack & Green, for Appellant.
Cheney, Massey & Price, and C. L. Harwood, for Respondent:
I. The complaint fails to state a cause of action, for the reason that there is nothing to show
any identity between the subject-matter of the alleged contract and the subject-matter of the
purchase. No resulting trust arose from the facts alleged. The purchase money must be paid at
or before the time the deed is made to the other party. A subsequent agreement or subsequent
payment creates no trust. There is no presumption in this state as a matter of pleading that a
contract declared to be void by the statute of frauds, unless in writing, is in writing.
32 Nev. 460, 462 (1910) Levy v. Ryland
declared to be void by the statute of frauds, unless in writing, is in writing. The complaint,
having alleged a contract generally and not alleging it to be in writing, is bad on general
demurrer.
The statute of limitations in actions affecting real estate is not tolled by the provisions of
the fourth subdivision of section 3718 of the Compiled Laws, or otherwise. And in any case
no facts are alleged upon which to base the suspension of the running of the statute.
There is no identity of subject-matter in the allegations contained in subdivision one of the
complaint and those contained in subdivision two. In other words, it may have been true that
the parties, in the latter part of December, 1902, agreed to purchase the lot in block W,
belonging to Smith and wife, but there is nothing in the complaint, in paragraph two, or
elsewhere, to show that on the 9th day of January, 1903, lot 9 in said block W was the same
piece of ground concerning which the alleged agreement was made. In an action of this kind,
great particularity is required in allegations and proof. The facts must be fully and exactly
stated and the proof must be convincinga mere preponderance is not sufficient. This
complaint is short of the standard in every respect. There is nothing in the pleading that
expressly or by any reasonable inference connects the subject of the alleged agreement to
purchase with the subsequent events. (See authorities cited under point II.)
II. The case of Norton v. Brink, 110 N. W. 669, 7 L. R. A. 945, is exactly in point. The
trial court dismissed the complaint and entered judgment in favor of the defendant, though the
facts were proved as alleged, and briefly they were that the plaintiff made a contract with the
defendant in substance that they should purchase a certain tract of farm land in partnership,
each party to pay one-half the purchase money, and, upon a sale, divide profits or losses; that
the defendant should advance the entire purchase money and take the title in his own name;
and that the plaintiff should upon demand repay the defendant one-half of the purchase price;
that the defendant did purchase the land and take the title in his own name, but before any
demand was made upon the plaintiff, the defendant died; that the plaintiff was ready,
willing, etc.
32 Nev. 460, 463 (1910) Levy v. Ryland
the defendant died; that the plaintiff was ready, willing, etc. Neither does the complaint show
any excuse for failing to discover the alleged mistake of fraud in the description of the deed.
There is not only no showing of diligence, but an affirmative showing of neglect. (Wood,
Limitations, 5276; Wood v. Carpenter, 101 U. S. 135; Lady Washington Co. v. Wood, 113
Cal. 482; Burling v. Newlands, 39 Pac. 49; Hetch v. Slanet, 72 Cal. 363; Smith on Fraud, par.
3; see, also, par. 75.)
This is a suit in equity brought by the appellant, Levy, wherein he seeks to recover from
the respondent, Ryland, the legal title to an undivided one-half interest in certain real property
in the City of Reno, County of Washoe, State of Nevada. To the complaint of appellant,
respondent interposed a demurrer in the lower court setting forth the following grounds: (1)
That the cause of action stated accrued more than five years before the commencement of the
action. (2) That at no time within five years next preceding the institution of the suit was
appellant seized or possessed of the premises in question, as provided by section 3707 and
section 3708 of the Compiled Laws. (3) That the recovery of the two hundred and fifty dollars
excess in the purchase price paid respondent is barred by section 3718 of the Compiled Laws.
(4) That the cause of action is barred by the three-year limitation of section 3718 of the
Compiled Laws. (5) That the contract sought to be enforced is oral, and therefore in violation
of the statute of frauds and of section 2694 of the Compiled Laws. (6) That the complaint
fails to state sufficient facts to constitute a cause of action. The demurrer was regularly
argued and sustained. The plaintiff refusing to amend his complaint, a judgment of dismissal
was ordered, from which order of the lower court sustaining the demurrer and judgment
dismissing the complaint plaintiff appeals.
For the purpose of considering the points of law raised by the demurrer, the facts as
pleaded in the complaint are considered to be true. This court, in passing upon the sufficiency
of the complaint, does so solely from a legal standpoint in considering the points raised by the
demurrer, and, if we find the points raised by the demurrer not to be well taken in law, by
answer respondent will, on issues joined, have the lower court pass upon the facts
alleged.
32 Nev. 460, 464 (1910) Levy v. Ryland
the points raised by the demurrer not to be well taken in law, by answer respondent will, on
issues joined, have the lower court pass upon the facts alleged.
In the complaint it is alleged: That in December, 1902, appellant and respondent entered
into a mutual agreement to purchase certain real estate in Reno, Nevada. That by this
agreement each was to pay one-half of the purchase price and each was to own an undivided
one-half interest in the property. That the title to the whole property was to be taken in the
name of respondent, Richard Ryland, and thereafter he was to deed to the appellant, William
Levy, an undivided one-half interest. That about January, 1903, pursuant to the agreement,
Ryland purchased the property for $3,500, receiving the title in his own name. That thereafter
he informed the appellant that half of the purchase price was $2,000, and about January 16,
1903, this was paid to respondent by appellant. That by reason of this representation the
respondent, Ryland, is alleged to have fraudulently secured from the appellant, Levy, $250
more than was coming to him under the agreement. That the property agreed to be purchased,
and to which, pursuant to their mutual agreement, respondent received title, was known as lot
9, in block W in the City of Reno, a lot with an east front of fifty feet on Center Street and a
depth of one hundred and forty feet. That about January 16, 1903, respondent executed a deed
to appellant conveying to him an undivided one-half interest in the east eighty feet of lot 9,
instead of an undivided one-half interest in the whole of the lot, thus retaining the west sixty
feet in his own name. It is this west sixty feet that complainant seeks to recover in this action.
It is further alleged that the deed was made by respondent with intent to defraud appellant
of his interest in the west sixty feet of said lot, and at the time the deed was delivered to and
accepted by appellant he believed it conveyed to him an undivided one-half interest in the
whole property taken in the name of respondent pursuant to their agreement. Appellant sets
forth that for many years prior to the execution of the deed appellant and respondent had
conducted business together in the purchase and sale of real estate; that appellant had great
confidence in the integrity and fair dealing of the respondent; that, at the time he
received the deed from respondent, appellant, because of this confidence, relied upon and
believed the representations of the respondent that the deed conveyed an undivided
one-half interest in the whole lot; and that appellant did not discover the alleged
misrepresentations until March, 190S.
32 Nev. 460, 465 (1910) Levy v. Ryland
great confidence in the integrity and fair dealing of the respondent; that, at the time he
received the deed from respondent, appellant, because of this confidence, relied upon and
believed the representations of the respondent that the deed conveyed an undivided one-half
interest in the whole lot; and that appellant did not discover the alleged misrepresentations
until March, 1908. It is further alleged that in the month of March, 1908, appellant demanded
of respondent a deed conveying an undivided one-half interest in the whole lot, or in that
portion which had not been conveyed to him, which respondent refused to do. The file marks
on the complaint show that the suit was instituted on June 21, 1909.
As before stated, for the purpose of considering the legal sufficiency of the complaint, as
tested by the points of law raised by the demurrer, the facts alleged in the complaint are
considered as true.
The points of law raised by the demurrer present the following questions to be determined
from the complaint: Was the agreement alleged to have been entered into between Ryland
and Levy, for the purchase of the lot in question, such an agreement as to create a resulting
trust? If so, must the agreement be alleged to have been in writing? Is the agreement made
and entered into between Ryland and Levy, as alleged in the complaint, such an agreement, if
creating a resulting trust, as would be without the statute of frauds? Did the statute of
limitations run from the time of the agreement alleged to have been entered into between
Ryland and Levy, or from the time of the alleged discovery of the alleged misrepresentations
by Levy in the deed given him by Ryland?
The law is well established that where two persons purchase real estate, and the title is
taken in the name of one of them, there is a resulting trust in favor of the other; and that the
possession of the one in whose name the title to the land is taken is considered in law that of
the trustee, and his possession as trustee is the possession of the cestui que trust. (White v.
Sheldon, 4 Nev. 280; Frederick v. Hass, 5 Nev. 389; Dutertre v. Shallenberger, 21 Nev. 507;
Osborne v. Endicott, 6 Cal. 154, 65 Am. Dec. 498; Miles v. Thorne, 38 Cal. 335, 99 Am.
Dec. 384; Love v. Watkins, 40 Cal. 547, 6 Am. Rep. 624; Hearst v. Pujol, 44 Cal.
32 Nev. 460, 466 (1910) Levy v. Ryland
Pujol, 44 Cal. 230; Hoffman v. Vallejo, 45 Cal. 564; Luco v. Detoro, 91 Cal. 405, 18 Pac.
866, 27 Pac. 1082; Fulton v. Jansen, 99 Cal. 587, 34 Pac. 331; Scadden Flat Gold M. Co. v.
Scadden, 121 Cal. 33, 53 Pac. 440; Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276; Faylor v.
Faylor, 136 Cal. 92, 68 Pac. 482.)
An examination of the allegations of the complaint, we believe, sufficiently pleads such an
agreement, which, if proven to be true, would create a resulting trust in favor of the appellant.
The allegations of the complaint clearly allege a mutual agreement, wherein the respondent
should purchase, for the joint benefit of himself and appellant, the lot in question, pursuant to
a prior agreement entered into for the joint purchase of the lot for their joint benefit, at which
time appellant agreed to pay one-half the purchase price for one-half the lot, the title to be
taken in the name of respondent, and one-half thereafter deeded to appellant, the petitioner
herein. And the complaint further alleges that in pursuance of this agreement half of the
purchase price was paid to the respondent.
The authorities hold that even though respondent advanced the entire amount necessary to
purchase the land at the time of the purchase, with an understanding previously had with the
appellant that the purchase should be for the joint benefit of himself and appellant, the part of
the purchase price advanced by respondent is considered in law to be a loan by him to
appellant, which is considered in law an actual payment in behalf of the appellant sufficient to
bring the transaction within the rule that payment must be made at or about the time of the
purchase in order to effectuate a resulting trust. (Hidden v. Jordan, 21 Cal. 92; Millard v.
Hathaway, 27 Cal. 121; Sandfoss v. Jones, 35 Cal. 481; Walton v. Karnes, 67 Cal. 255; 7
Pac. 676; Hellman v. Messmer, 75 Cal. 166, 16 Pac. 766; Thomas v. Jameson, 77 Cal. 91, 19
Pac. 177; Kendall v. Mann, 11 Allen, 15; Burleigh v. White, 64 Me. 23; McDonough v.
O'Neil, 113 Mass. 92; Lehman v. Lewis, 62 Ala. 129; Towle v. Wadsworth, 147 Ill. 80, 35 N.
E. 73; Hodge v. Verner, 100 Ala. 612, 13 South. 679; Milner v. Standford, 102 Ala. 277, 14
South. 644, Howe v. Howe, 199 Mass. 598, 85 N. E. 945, 127 Am. St. Rep. 518.)
32 Nev. 460, 467 (1910) Levy v. Ryland
As illustrative of this rule, the Supreme Court of California, in the case of Hellman v.
Messmer, said: The rule is well settled that when real property is purchased, and one party
pays the purchase money and another takes the title, a resulting trust arises in favor of the
former, and the latter holds the title as his trustee. But the trust must result, if at all, at the
time the deed is taken. No oral agreements and no payments made after the title is taken will
create a resulting trust. The party claiming the benefit of the trust must show that the money
was paid before or at the time of the execution of the conveyance. * * * It is not, however,
necessary that the money should have been actually paid by the party setting up the trust. It
may have been paid by the party who took the title, but advanced as a loan to the other party,
and, if so, a trust results. * * * Perry, in his work on Trusts (section 133) states the rule as
follows: If one should advance the purchase money and take the title to himself, but should
do this wholly upon the account and credit of the other, he would hold the estate upon a
resulting trust for the other.' (Hellman v. Messmer, 75 Cal. 166, 16 Pac. 766.)
The Supreme Court of Illinois, in Towle v. Wadsworth, in stating the rule, said: The
complainant's theory is that the defendant, in pursuance of his agreement in that behalf,
advanced the money required to make the first payment for the property, and that he had
made such advance for himself and the complainant jointly, and thus, in effect, loaned
one-half of the money thus advanced to the complainant, and paid it to a seminary in purchase
of the property as the complainant's money, taking the title in his own name as security for its
repayment. That these facts, if true, raised a resulting trust in favor of the complainant, is too
well settled to require discussion. The following cases illustrative of the rule may be
consulted: Wallace v. Carpenter, 85 Ill. 590; Reeve v. Strawn, 14 Ill. 94; Davis v. Hopkins,
15 Ill. 519; Reigard v. McNeil, 38 Ill. 400; Ferguson v. Stutphen, 3 Gilman, 547. (Towle v.
Wadsworth, 147 Ill. 80, 35 N. E. 78.)
In Frederick v. Hass, 5 Nev. 389, Chief Justice Lewis, in laying down the rule applicable
to the case before him, very properly said: When an estate is purchased in the name of one
person, and the consideration money is paid at the time by another, that there is a
resulting trust in favor of the latter is a principle of equity jurisprudence, than which none
is more thoroughly settled."
32 Nev. 460, 468 (1910) Levy v. Ryland
one person, and the consideration money is paid at the time by another, that there is a
resulting trust in favor of the latter is a principle of equity jurisprudence, than which none is
more thoroughly settled. In the case before him this was as far as was necessary to announce
the rule, but unquestionably from further language used in the opinion, wherein he said: So
that the trust may be created at the very time the title passes; no subsequent transaction being
allowed to impress the character of a trust estate upon that which was absolute in the
purchaser at the time it was acquiredit will be seen that there is nothing to be found in that
opinion inconsistent with the law that if a prior absolute obligation is made between the
parties prior to the transaction, wherein one of the parties is to pay a part of the original price
of the original purchase, and the other party to take the title in his own name for the joint
benefit of both, a resulting trust is formed as completely as though cash was advanced by the
appellant at the very time the prior agreement to purchase the lot was made.
This rule is established by all text-writers and succinctly set forth by Pomeroy in his work
on Equity Jurisprudence, and sustained by the great weight of authorities (section 1037, 3d
ed.), wherein he says: Where property is purchased and the conveyance of the legal title is
taken in the name of one person, A., while the purchase price is paid by another person, B., a
trust at once results in favor of the party who pays the price, and the holder of the legal title
becomes a trustee for him. In order that this effect may be produced, however, it is absolutely
indispensable that the payment should be actually made by the beneficiary, B., or that an
absolute obligation to pay should be incurred by him, as a part of the original transaction of
purchase, at or before the time of the conveyance; no subsequent and entirely independent
conduct, intervention, or payment on his part would raise any resulting trust. (Pomeroy's
Equity Jurisprudence, sec. 1037; Hidden v. Jordan, 21 Cal. 92; Millard v. Hathaway, 27 Cal.
121; Walton v. Karnes, 67 Cal. 255, 7 Pac. 676; Hellman v. Messmer, 75 Cal. 166, 16 Pac.
766; Fulton v. Jansen, 99 Cal. 591, 34 Pac. 331; Kendall v. Mann, 11 Allen, 15; Runnells v.
Jackson, 1 How. (Miss.) 358; Page v. Page, 8 N. H. 187; Honore v. Hutchings, S Bush, 6S7;
In re Stanger, 35 Fed.
32 Nev. 460, 469 (1910) Levy v. Ryland
8 Bush, 687; In re Stanger, 35 Fed. 238; Arnold v. Harris, 52 S. W. 715; Gardner v. Randall,
70 Tex. 453; 7 S. W. 781; Crowley v. Crowley, 72 N. H. 241, 56 Atl. 190; Pearl v.
Whitehouse, 52 N. H. 254; Ferrin v. Errol, 59 N. H. 234; Bates v. Wilson, 14 Colo. 140, 24
Pac. 103; Despard v. Bennett, 53 W. Va. 443, 44 S. E. 448; Herlihy v. Coney, 99 Me. 469, 59
Atl. 952; Potts v. Fitch, 47 W. Va. 63, 34 S. E. 959.)
The authorities above cited seem also to hold that where a resulting trust is created, such
as pleaded in the complaint, setting forth the agreement entered into between appellant and
respondent, to purchase land and hold same in whole or in part, together with the taking of
the title in the name of respondent, which created a resulting trust in favor of appellant, such a
contract is not within the statute of frauds, and need not therefore be in writing.
In the present case, a general contract showing a resulting trust, we think, having been
sufficiently pleaded, we believe the law to be well established that if the contract creating the
resulting trust is not pleaded to be in writing, that if the statute of frauds can be successfully
invoked to defeat the action, for the reason that the complaint is silent as to whether or not the
contract creating the resulting trust is oral or in writing, this question must be pleaded by
answer and cannot be raised by demurrer, and that the court will presume, until the contrary
appears, that the contract creating the resulting trust pleaded in the complaint is in writing.
(Osborne v. Endicott, 6 Cal. 149, 65 Am. Dec. 498; Wakefield v. Greenhood, 29 Cal. 598;
Miles v. Thorne, 38 Cal. 335, 99 Am. Dec. 384; Vassault v. Edwards, 43 Cal. 458; Brennan
v. Ford, 46 Cal. 14; McDonald v. M. V. H. Association, 51 Cal. 210; Curtis v. Aetna Life Ins.
Co., 90 Cal. 245, 27 Pac. 211, 25 Am. St. Rep. 114; McCann v. Pennie, 100 Cal. 547, 35 Pac.
158; Bradford Inv. Co. v. Joost, 117 Cal. 204, 48 Pac. 1083; Robinson v. Tipton, 31 Ala. 595;
Rigby v. Norwood, 34 Ala. 129; Ritch v. Thornton, 65 Ala. 309; Price v. Weaver, 13 Gray,
272; Elliott v. Jenness, 111 Mass. 29; Hilliard v. Austin, 17 Barb. 141; Donaldson v.
Donaldson, [Ohio Com. Pl.] 31 Wkly. Law Bul. 102; Townsend v. Sharp, 2 Tenn. 192;
Carroway v. Anderson, 20 Tenn. 61; Lewis v. Alexander, 51 Tex. 578; Lessig v.
Cunningham, 55 Tex. 231; Horm v. Shamblin, 57 Tex. 243; Gongales v. Chartier, 63 Tex.
36; Dexter v. Ohlande, S9 Ala.
32 Nev. 460, 470 (1910) Levy v. Ryland
Horm v. Shamblin, 57 Tex. 243; Gongales v. Chartier, 63 Tex. 36; Dexter v. Ohlande, 89
Ala. 262, 7 South. 115; Horner v. Frazier, 65 Md. 1, 4 Atl. 133; Harris Photo Sup. Co. v.
Fisher, 81 Mich. 136, 45 N. W. 661; Sweetland v. Barrett, 4 Mont. 217, 1 Pac. 745; Stern v.
Drinker, 2 E. D. Smith, 401; Bailey v. Ricketts, 4 Ind. 488; Miller v. Upton, 6 Ind. 53;
Cleaves v. Foss, 4 Me. 1; Miller v. Drake, 1 Caines, 45; Elting v. Vanderlyn, 4 Johns. 237;
Lewin v. Stewart, 10 How. Prac. 509; Hepworth v. Pendleton, 5 Ohio Dec. 386; Long v.
Lewis, 16 Ga. 154; Booker v. Ray, 17 Ind. 522; Printup v. Johnson, 19 Ga. 73; Bowman v.
Ainslie, 1 Idaho, 644; Spreyer v. Desjardins, 144 Ill. 641, 32 N. E. 283, 36 Am. St. Rep. 473;
Sharkey v. McDermott, 91 Mo. 647, 14 S. W. 107, 60 Am. Rep. 270; Stillwell v. Hamm, 97
Mo. 579; 11 S. W. 252; Van Idour v. Nelson, 60 Mo. App. 523; Hinchman v. Rutan, 31 N. J.
Law, 496; Coles v. Bowne, 10 Paige, 526; Gibbs v. Nash, 4 Barb. 449; Marston v. Swett, 66
N. Y. 206, 23 Am. Rep. 43; Robbins v. Deverill, 20 Wis. 142; Brennan v. Ford, 46 Cal. 7;
McDonald v. Mission View Homestead Assn. 51 Cal. 210; Randall v. Constans, 33 Minn.
329, 23 N. W. 530; Wildbahn v. Robidoux, 11 Mo. 659; Cozine v. Graham, 2 Paige, 177.)
The law seems further to be thoroughly established that the statute of limitations does not
run against such a trust in favor of the trustee, because the possession of the trustee is deemed
in law the possession of the cestui que trust. (Crosier v. McLaughlin, 1 Nev. 348; Frederick
v. Hass, 5 Nev. 389; Craw v. Wilson, 22 Nev. 385; Miles v. Thorne, 38 Cal. 335, 99 Am.
Dec. 384; Love v. Watkins, 40 Cal. 547, 6 Am. Rep. 624; Hearst v. Pujol, 44 Cal. 230;
Broder v. Conklin, 77 Cal. 330, 19 Pac. 513; Fulton v. Jansen, 99 Cal. 587, 34 Pac. 331;
Fleishman v. Woods, 135 Cal. 256, 67 Pac. 276; Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct.
610, 30 L. Ed. 718.)
The law seems to be further firmly established that the statute of limitations does not begin
to run until the trust has been openly disavowed by the trustee, insisting upon an adverse right
and interest, which is clearly and unequivocally made known to the cestui que trust, for the
reason that until that time there is no breach of the trust, and hence until then no cause of
action accrues.
32 Nev. 460, 471 (1910) Levy v. Ryland
no cause of action accrues. (White v. Sheldon, 4 Nev. 280; James v. Throckmorton, 57 Cal.
368; Luco v. Detoro, 91 Cal. 405, 18 Pac. 866, 27 Pac. 1082; Scadden Flat G. M. Co. v.
Scadden, 121 Cal. 33, 53 Pac. 440; Speidel v. Henrici, 120 U. S. 377, 7 Sup. Ct. 610, 30 L.
Ed. 718.) Unquestionably under the statute of limitations the statute does not begin to run
until the time of the discovery of fraud or mistake by the cestui que trust.
In this case, under the pleadings as alleged, and which are, for the purposes of the
demurrer, admitted to be true, the statute did not begin to run until March, 1908, the time
alleged when the appellant discovered the alleged defect in the deed. As the complaint was
filed on June 21, 1909, it necessarily follows that the statute of limitations cannot be
successfully pleaded by demurrer.
Counsel for respondent seem to incline to the belief that the complaint fails to state a cause
of action, by reason of the fact that there is nothing to show any identity between the
subject-matter of the alleged contract, as set forth in paragraph 1 of the complaint, and the
subject-matter of the purchase as disclosed in paragraph 2 of the complaint. We fail to see any
merit in this contention. Paragraph 1 of the complaint alleges the agreement to purchase a
certain lot in block W in the City of Reno, Nevada, and paragraph 2 alleges the purchase
pursuant to that agreement of lot 9 in block W, which is the alleged description of the lot in
question. The complaint clearly alleges a prior mutual agreement wherein the respondent
should purchase, for the joint benefit of himself and appellant, a certain lot in block W in
the City of Reno, and the purchase of said lot 9 in block W pursuant to that agreement,
which is a sufficient pleading to properly connect the issues of the subject-matter of the
agreement and the purchase pursuant thereto as referring to one and the same transaction.
After a most careful review of the complaint and the legal objections raised by the
demurrer of the respondent, we are of the opinion that the demurrer should have been
overruled and the respondent given an opportunity to plead by answer.
For the foregoing reasons, the order of the lower court sustaining the demurrer, and the
judgment dismissing the complaint, are hereby reversed, with the order that the lower
court give the respondent such reasonable time to plead by answer as may be meet and
proper.
32 Nev. 460, 472 (1910) Levy v. Ryland
taining the demurrer, and the judgment dismissing the complaint, are hereby reversed, with
the order that the lower court give the respondent such reasonable time to plead by answer as
may be meet and proper.
It is so ordered.
Talbot, J.: I concur.
The demurrer to the complaint was sustained upon the ground that it appeared upon the
face thereof that the action was barred by the statute of limitations. The action was brought to
enforce a resulting trust, and it is contended by the appellant that the statute did not begin to
run until the discovery by the plaintiff in May, 1908, that the deed delivered to him on the
16th day of January, 1903, was not what he thought it was and did not in fact convey to him
the full undivided one-half interest in the entire lot. The plaintiff alleges in his complaint that
he relied upon the representations of defendant and did not make any further investigations
into the facts of the purchase of said land than disclosed to him by defendant. The complaint,
however, nowhere alleges that at the time the defendant delivered the deed to the plaintiff in
January, 1903, he made any representations to him whatever. Where the fraud is charged,
based upon false representations, such representations must be specifically charged and
proved as alleged. But even if there had been a specific charge of false representation upon
the part of the defendant at the time the deed was executed and delivered by him to plaintiff, I
doubt if that could be given any consideration under the facts which are admitted in this
complaint.
It is not disputed that, if the plaintiff had notice of the alleged fraud at the time he received
his deed from the defendant, the right of action thereon was barred by the statute of
limitations prior to the institution of this action. I do not think the plaintiff can be heard to say
that he did not have notice of the contents of his deed at the time the same was delivered to
him.
There is nothing alleged in the complaint which, in my judgment, would excuse the
plaintiff from the exercise of ordinary prudence and diligence.
32 Nev. 460, 473 (1910) Levy v. Ryland
ordinary prudence and diligence. Such prudence and diligence required that he should
examine his deed when it was delivered to him. If he had done so, it would have at once
become apparent to him that the deed only conveyed a half interest in a portion of, and not in
the entire, lot.
It would, I think, be a dangerous rule to establish in land transactions to permit a grantee to
excuse himself for not knowing the contents of a deed, actually delivered to him, and thus
prevent the running of the statute, simply upon his declaration of confidence reposed in the
integrity and fair dealing of his grantor occasioned through their business relations such as
alleged in the complaint. According to the complaint it was over five years before the plaintiff
knew the contents of the deed which he received from defendant. If he could stop the running
of the statute of limitations for five years by reason of his failure to read his deed, where is
the limit of time to be placed beyond which he could not go?
But even if it could be said that the plaintiff, under the alleged facts, is not chargeable with
laches for his failure to examine and note the contents of his deed, nevertheless the statute of
this state charges him with such notice. Section 24 of An act concerning conveyances
(Cutting's Comp. Laws, sec. 2663) reads: Every conveyance of real estate, and every
instrument of writing setting forth an agreement to convey any real estate, or whereby any
real estate may be affected, proved, acknowledged, and certified in the manner prescribed in
this act, to operate as notice to third persons, shall be recorded in the office of the recorder of
the county in which such real estate is situated, but shall be valid and binding between the
parties thereto without such record. The foregoing section charges the parties to a deed with
knowledge of its contents, and equity as well as law takes cognizance of such notice imputed
by statute. (16 Cyc. 172; De Mares v. Gilpin, 15 Colo. 76, 24 Pac. 568; Bangs v. Loveridge,
60 Fed. 963; Johnson v. Fla. Transit Co., 18 Fed. 821.)
Under the facts alleged in the complaint, I am of the opinion the plaintiff was chargeable
with knowledge of the contents of the deed, both by the rule imposing ordinary prudence and
diligence and by the statutory provision importing notice.
32 Nev. 460, 474 (1910) Levy v. Ryland
The complaint charges that the deed was intentionally made to convey but a part of what
should have been conveyed. This was an act inconsistent with the alleged trust and was in
effect a repudiation thereof. Hence the statute of limitations began to run upon the delivery of
the deed. (White v. Sheldon, 4 Nev. 280; Crowley v. Crowley, 72 N. H. 241, 56 Atl. 190;
Felkner v. Dooly, 28 Utah 236, 78 Pac. 365; Tiffany & Bullard on Trusts and Trustees, p.
717; 1 Wood on Limitations, p. 132.)
The judgment and order appealed from, in my opinion, should be affirmed.
____________
32 Nev. 474, 474 (1910) State v. Manhattan Verde Co.
[No. 1884]
THE STATE OF NEVADA, ex rel. R. C. MOORE, Petitioner, v. MANHATTAN VERDE
COMPANY, a Corporation, and R. C. DUNLAP, Its President, Respondents.
1. Mines and MineralsMining CorporationsIssuance of
StockStampingStatutesConstructionTreasury StockPromotion Stock.
As used in the act of March 5, 1909 (Stats. 1909, c. 56), regulating the issuance by mining corporations
of treasury and promotion stock, and requiring the stamping of certificates therefor, the words treasury
stock mean stock set aside for the actual development of the property, while promotion stock is that
issued to those who may originally own the mining ground or valuable rights connected therewith in
consideration of their deeding the same to the mining company, or such stock as is issued to promoters for
incorporating the company.
2. Mines and MineralsMining CorporationsIssuance of StockStampingStatutes.
The act of March 5, 1909 (Stats. 1909, c. 56), requiring the stamping of certificates issued by mining
companies for treasury and promotion stock, did not apply to stock issued prior to April 15, 1909, when
such provisions went into effect.
Application by the State, on the relation of R. C. Moore, for writ of mandamus against
Manhattan Verde Company and another. Writ ordered issued in accordance with opinion.
J. A. Saunders, for Petitioner:
I. The first question to be determined by this court is, Is mandamus the proper remedy?
The numerous cases heretofore decided by this court and recently decided apply to the
question of this particular remedy in cases compelling officers of corporations to issue
stock, whereas in this case it will be noted that respondents offer to issue certificates, but
decline and refuse to stamp the same in accordance with the act in question. "The mere
fact that an action or proceeding will lie does not necessarily supersede the remedy by
mandamus.
fore decided by this court and recently decided apply to the question of this particular
remedy in cases compelling officers of corporations to issue stock, whereas in this case it will
be noted that respondents offer to issue certificates, but decline and refuse to stamp the same
in accordance with the act in question. 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 this application; and if it be doubtful whether such action or
proceeding will afford him a complete remedy the writ will issue. (State v. Wright, 10 Nev.
175.)
II. If the obligation of the party, against whom mandamus is applied for, is clear and
undoubted to do the thing required, the fact that an indictment will lie furnishes no objection
to the granting of the writ. (In re Trenton Water Power Company, 20 N. J. Law, 659.) From
these citations it is conclusive that relator's only remedy in this case is mandamus.
McIntosh & Cooke, for Respondents:
I. The act provides two separate and distinct requirements. Sections 1 and 2 deal solely
with the filing of sworn statements, semiannually, and this portion of the act is not in issue
here. Sections 3, 4, 5, and 6 are confined solely to the stamping or printing of stock, while
sections 7, 8, 9, 10, and 11 incorporate the penal provisions and procedure in the event of
noncompliance. In construing the sections involved in the proceeding at barnamely,
sections 3, 4, 5, and 6that portion of the title of the act referring to those sections gives us
the first light on the intention of the legislature. The portion of the title referring to sections 3,
4, 5, and 6 reads as follows: Regulating the issuance and sale of certain treasury and
promotion stock and defining the same for the purposes of this act, evidencing that the
legislature had in mind the issuance and sale of the stock itselfand not the exchange of
certificates for stock issued and sold prior to the enactment of the law. The title says: Certain
treasury and promotion stock; going to the body of the act we find what stock the legislature
intended to reach.
II. An examination of the case of State v. Jumbo Extension Mining Company, 30 Nev. 192,
convinces us that the reason for the rule laid down in that case does not exist here. The
distinction to our minds is clear. In this case no equitable remedy for specific performance is
available to the relator, for no private contract exists between him and respondent company
respecting the stamping or printing of the stock in question. The enforcement of the penalty
imposed by the act we concede offers no relief to relator. No action in damages could
compensate relator, for the reason that respondents have tendered and do tender delivery of
the certificates and transfer of his stock, declining only to print or stamp such certificates as
by relator demanded; and for the further reason that the damages resulting to relator, if any
could be shown, are not determinable or computable in dollars and cents within the remotest
degree of certainty or exactness. Further, there is no conversion, theoretical or otherwise, of
the stock by the respondent. The authorities generally hold that where a public right is
involved and a penalty imposed, as in this case, mandamus is the proper remedy.
This is an application for a writ of mandamus to compel the officers of the Manhattan
Verde Company, a corporation, to stamp with the words treasury stock or promotion
stock, as the stock may be, certain certificates of stock issued prior to the 15th day of April,
1909, and a certain certificate issued subsequent to the 15th day of April, 1909, by virtue of a
certain act of the legislature entitled An act requiring certain mining corporations to file
statements with the county recorders and attorney-general, and to mail copies thereof to
stockholders; regulating the issuance and sale of certain treasury and promotion stock and
defining the same for the purposes of this act; declaring certain acts to be unlawful; providing
penalties for the violation thereof, and other matters relating thereto. (Stats. 1909, p. 62.)
The respondents, it is alleged, have refused to stamp said certificates as required by said
act. The respondents raise no question in resistance to the issuance of the writ as to the
appropriateness of mandamus being the proper remedy in this case.
question in resistance to the issuance of the writ as to the appropriateness of mandamus being
the proper remedy in this case. No question thus being raised, and in view of the importance
of having this act construed for the benefit of all concerned, and that from the facts alleged
this case is readily distinguishable from cases heretofore and recently passed upon by this
court, denying the writ of mandamus for the reason that there is another adequate and
complete remedy at law (State v. Wright, 10 Nev. 175; State v. Guerrero, 12 Nev. 106;
Gleeson v. Jumbo Extension Mining Company, 30 Nev. 192; Turley v. Thomas, 31 Nev. 181),
we will construe the act and pass upon the points raised by this proceeding.
Upon the return to the notice of petitioner to show cause why the writ should not issue,
respondents allege that they have not and do not refuse to issue stock in lieu of the stock
sought to be transferred and reissued, and are willing to transfer and reissue the stock as
requested, but refuse to stamp the words treasury stock or promotion stock, as the case
may be, upon said certain certificates for the reason, in effect, that the legislature has no
authority to change the status of stock previously issued to the enactment of the measure, by
requiring the stamping of these words on stock issued by mining companies, and no authority
to have said stock stamped as required by said act.
The act, or parts of the act, attempted to be vitiated by this proceeding, is a law passed by
the last legislature for the evident purpose of protecting investors in mining stock from
buying promotion stock when unscrupulous mining companies and mining promoters
advertise that the stock so purchased will be used in the actual development of the property.
The object of the law is a good one, intending, as it does, to protect mining investors who
desire to purchase mining stock, and to apprise them of the character of stock they are
purchasing, and to prevent deceitful mining promoters and mining companies from foistering
promotion stock upon innocent investors under the pretext that the money derived thereby
will be used for the actual development of the property. Treasury stock is generally
understood to mean in this mining country, and the legislature intended to mean when it
referred to "treasury stock" in said act, such stock as is set aside for the actual
development of the property.
and the legislature intended to mean when it referred to treasury stock in said act, such
stock as is set aside for the actual development of the property.
In other words, treasury stock, to the investors in mining stock, means, and would
indicate, that the proceeds from the sale of the stock so purchased will be used in the actual
development of the mining ground of the mining company selling the stock. Promotion
stock is such stock as is issued to those who may originally own the mining ground or
valuable rights connected therewith, in consideration of their deeding the same to the mining
company when the company is incorporated; or it may mean such stock as is issued to
promoters, or those in some way interested in the company, for incorporating the company, or
for services rendered in launching or promoting the welfare of the company, such as
advancing the fees for incorporating, attorney's fees, surveying, advertising, etc.
We do not wish to be understood as conveying the impression that promotion stock may
not be legitimately earned and rightfully issued, nor that when so rightfully earned and issued
to those who are legitimately entitled to the same, that such stock is not of as much value as
any other share of stock issued for other purposes, unless for some special reason it may be so
declared by the owners thereof, or made so especially by the directors of the mining company
at the time of its issuance.
The evident intent of the legislature, in the enactment of the law under discussion, was to
have all stock which is to be issued for development purposes to be marked as treasury
stock, and such stock as otherwise issued to the owners or promoters of mining companies,
and the proceeds of which are not to be used for the purpose of actually developing the
property, to be stamped promotion stock.
We do not believe it was intended by the legislature, in enacting the law in question, that
any stock issued prior to the 15th day of April, 1909 (the time specified in the act when this
provision was to take effect), when presented for transfer was to be marked as either treasury
stock or promotion stock. Whether the legislature would have authority to change the
status of stock issued prior to the passage of the act, or to penalize the action of the
officers of any mining corporation for an offense committed prior to the enactment of the
law, we need not determine.
to change the status of stock issued prior to the passage of the act, or to penalize the action of
the officers of any mining corporation for an offense committed prior to the enactment of the
law, we need not determine. As we construe the act in question, it was never intended to
apply to stock issued prior to its passage.
We believe it was the intention of the legislature, as we now construe the law, to mean that
no stock issued prior to the time specified in the act for the enforcement of these provisions,
when presented to the officers of the company for transfer, need be stamped, but may be
issued the same as it was prior to the time specified for the enforcement of the law in
question; but any mining stock issued, sold, or transferred, which was issued, sold, or
transferred subsequent to the time of the enforcement of the provisions of the act in question,
such stock must be stamped in accordance with the provisions of the act, as either promotion
stock or treasury stock, as the stock may be.
The application for a writ of mandamus to compel the respondents to stamp the certificates
of stock issued prior to the time of the enforcement of the act of March 5, 1909, as either
promotion stock or treasure stock, in view of the fact that these certificates of stock were
issued prior to the date of enforcement of the law in question, is denied. The writ will issue,
however, to compel the respondents to stamp the certificate of stock, presented for stamping,
issued subsequent to the time of the enforcement of the provisions of the act in question
either as promotion or treasury stock as the stock may be.
It is so ordered.
____________

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